SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
AMENDMENT NO. 1
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
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(Exact name of registrant as specified in its charter)
ENGLAND AND WALES NONE
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(State or other jurisdiction of
incorporation or organization) (IRS Employer Identification No.)
THE COURTYARD
2-4 LONDON ROAD
NEWBURY, BERKSHIRE RG14 1JX
ENGLAND
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(Address of principal executive offices) (Zip Code)
If this form relates to the registration of a class of securities pursuant
to Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box |_|
If this form relates to the registration of a class of securities pursuant
to Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box |_|
Securities Act registration statement file number to which this form
relates: 333-76781 (if applicable).
Securities registered pursuant to Section 12(b) of the Act:
Title of Each Class Name Of Each Exchange On Which
To Be So Registered Each Class Is To Be Registered
- ------------------- ------------------------------
ORDINARY SHARES OF NOMINAL VALUE $0.10 EACH NEW YORK STOCK EXCHANGE*
AMERICAN DEPOSITARY SHARES (EVIDENCED BY NEW YORK STOCK EXCHANGE
AMERICAN DEPOSITARY RECEIPTS), EACH
REPRESENTING TEN ORDINARY SHARES
* Not for trading, but only in connection with the registration of American
Depositary Shares, pursuant to the requirements of the Securities and
Exchange Commission.
Securities to be registered pursuant to Section 12(g) of the Act:
NONE
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(Title of Class)
<PAGE>
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
The information set forth under the captions "Material Tax
Consequences," "Vodafone AirTouch Following the Merger -- Dividends,"
"Description of Vodafone AirTouch Ordinary Shares" and "Description of Vodafone
AirTouch American Depositary Shares" contained in the Registrant's Registration
Statement on Form F-4 (Registration No. 333-76781), originally filed with the
Securities and Exchange Commission pursuant to the Securities Act of 1933, as
amended, on April 22, 1999, is incorporated herein by reference.
ITEM 2. EXHIBITS.
The following exhibits have been included in or incorporated by
reference into the copy of this Registration Statement.
1.1 Specimen Certificate of Vodafone AirTouch Public Limited Company
Ordinary Share.
1.2 Specimen American Depositary Receipt (incorporated by reference to
Exhibit A to Deposit Agreement filed as Exhibit 2.2 below).
2.1 Memorandum and Articles of Association of the Registrant as in
effect beginning June 30, 1999.
2.2 Deposit Agreement, dated as of October 12, 1988, as amended and
restated as of December 26, 1989, as further amended and restated as
of September 16, 1991, and as further amended and restated as of
June 30, 1999, among Vodafone AirTouch Public Limited Company,
AirTouch Communications, Inc., The Bank of New York, as Depositary,
and owners and beneficial owners of American Depositary Receipts of
Vodafone AirTouch Public Limited Company.
- 2 -
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized.
VODAFONE AIRTOUCH PUBLIC
LIMITED COMPANY
Date: June 30, 1999 By: /s/ Stephen R. Scott
----------------------------------
Name: Stephen R. Scott
Title: Company Secretary
- 3 -
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
Please check that your address details on the
attached certificate are correct. If there
are any errors or if you move to a new
Mr A Sample address, please indicate the correct
Mr B Sample information on the back of this counterfoil
Mr C Sample and send it to our Registrar. Do not send the
Mr D Sample certificate with the address slip.
1 Print Row
Redland Please do not detach this counterfoil unless
BRISTOL you want to notify the Registrar of a change
BS98 5XY to your address details.
Reference No. Transfer No. Certificate No. Number of Shares
[VODAFONE AIRTOUCH LOGO]
ORDINARY SHARES OF US$0.10 EACH
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
(Registered under the Companies Act of 1985 Number 1633679)
Mr A Sample
Mr B Sample
Mr C Sample
Mr D Sample
1 Print Row
Redland
BRISTOL
BS98 5XY
This is to Certify that the above-named is/are the Registered Holder(s) of
______ Ordinary Shares of US$0.10 each, fully paid, in Vodafone AirTouch Public
Limited Company subject to the Memorandum and Articles of Association of the
Company. Given under the signatures of a Director and the Company Secretary on
[Date]
DIRECTOR COMPANY SECRETARY
No transfer of any of the above Shares can be registered unless accompanied by
this certificate.
Registrar: Computershare Services PLC, P.O. Box No. 82, Caxton House, Redcliffe
Way, Bristol BS99 7NH.
<PAGE>
[reverse side of Certificate]
CHANGE OF ADDRESS/AMENDED DETAILS
If your address is not shown correctly on the attached certificate, or if
you change your address, please let us know by filling in the form below
to show the correct details, sign it and return it to our Registrar
at Computershare Services PLC whose address is shown
at the foot of the certificate overleaf.
Please use BLOCK CAPITALS
Full Name(s)_________________________ New Address__________________________
_____________________________________ _____________________________________
_____________________________________
Old Address__________________________ Postcode_____________________________
_____________________________________
_____________________________________ Signature(s)_________________________
Postcode_____________________________ Date_________________________________
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
THE COMPANIES ACTS 1948 TO 1985
PUBLIC COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION OF
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
(INCLUDING ALL AMENDMENTS AS AT 30 JUNE 1999)
<PAGE>
1 (1)THE NAME OF THE COMPANY IS "VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY".
2 THE COMPANY IS A PUBLIC COMPANY.
3 THE REGISTERED OFFICE OF THE COMPANY WILL BE SITUATE IN ENGLAND.
4 THE OBJECTS FOR WHICH THE COMPANY IS ESTABLISHED ARE:
(1) To carry on the business of a holding company in all its branches, and
for that purpose to acquire and hold for investment shares, stock,
debentures and debenture stock, bonds, notes, obligations and
securities issued or guaranteed by any company, and debentures,
debenture stock, bonds, notes, obligations and securities issued or
guaranteed by a government, sovereign ruler, commissioner, public body
or authority, supreme, municipal, local or otherwise, whether at home
or abroad, and to leave money on deposit or otherwise with any bank or
building society, local authority or any other party and to act as and
to perform all the functions of a holding company.
(2) To carry on business as dealers in, operators, manufacturers,
repairers, designers, developers, importers and exporters of
electronic, electrical, mechanical and aeronautical equipment of all
types and of parts and accessories thereof and of plant and machinery
of all descriptions, and to act as engineers' agents and
- --------
(1) 17 July 1984 - Incorporated as a private company with name "RACAL
STRATEGIC RADIO LIMITED"
17 September 1985 - name changed to "RACAL TELECOMMUNICATIONS
GROUP LIMITED"
5 September 1988 - name changed to "RACAL TELECOM LIMITED"
14 September 1988 - Re-registered as a public company
16 September 1991 - name changed to "VODAFONE GROUP PUBLIC
LIMITED COMPANY"
30 June 1999 - name changed to "VODAFONE AIRTOUCH PUBLIC COMPANY
LIMITED"
<PAGE>
merchants, and generally to undertake and execute agencies and
commissions of any kind.
(3) To purchase, subscribe for, underwrite, take, or otherwise acquire and
hold any shares, stock, bonds, options, debentures, debenture stock
obligations or securities in or of any company, corporation, public
body, supreme, municipal, local or otherwise or of any Government or
State and to act as and perform all the functions of a holding company
and to carry on, acquire, undertake and execute any business,
undertaking, transaction or operation whether manufacturing, financial,
mercantile, agricultural, extractive or otherwise.
(4) To purchase, take on lease or in exchange, hire or otherwise acquire,
and obtain options over, lands, buildings and generally any real or
personal property, rights or privileges of any kind which the Company
may deem necessary or convenient for or with reference to any of its
objects, or capable of being profitably dealt with in connections with
any of its property rights for the time being.
(5) To apply for or acquire by purchase or otherwise, whether in the United
Kingdom or elsewhere, any patents, patent rights, secret processes,
trade marks, copyrights or other rights of monopolies, licences,
concessions and the like, and to use, exercise, develop or grant
licences in respect of, or otherwise turn the same to account and to
make, assist, or subsidise any experiments, researches or
investigations.
(6) To purchase or otherwise acquire, obtain options over, take over,
manage, supervise, control and undertake all or any part of the
business, undertaking, goodwill, property, assets, rights and
liabilities of any person or company, or to acquire the control of
shares of any company or any interest therein and to act as a director
or manager of any company.
(7) To improve, manage, develop, grant licences, easements and other rights
over, exchange and in any other manner deal with or dispose of the
undertaking, property, assets, rights and effects of the Company, or
any part thereof, for such consideration as may be thought fit, and in
particular for stock, shares, debentures, debenture stock or securities
of any other company, whether fully or partly paid up.
(8) To pay for any property or rights acquired by the Company and for any
services rendered or to be rendered to the Company either in cash or in
fully or partly paid shares, with or without preferred or deferred or
guaranteed rights in respect of dividend or repayment of capital or
otherwise, or in any securities which the Company has power to issue,
or partly in one mode and partly in another and generally on such terms
as may seem expedient.
(9) To lend any moneys or assets of the Company to such persons, firms or
companies and on such terms as may be considered expedient, and either
with or without security, and to invest and deal with moneys and assets
of the Company not immediately required in any manner and to receive
money and securities or deposit, at interest or otherwise.
<PAGE>
(10) To borrow or raise money and to secure or discharge any debt or
obligation of or binding on the Company in such manner as may be
thought fit, and in particular mortgages, or other charges upon the
undertaking and all or any of the property and assets (present or
future) and the uncalled or unpaid capital of the Company, or by the
creation and issue on such terms and conditions as may be thought
expedient of debentures or debenture stock, perpetual or otherwise, or
other securities of any description.
(11) To enter into any guarantee, contract of indemnity or suretyship
whether by personal covenant or by mortgage or charge on all or any
part of the undertaking, property or assets of the Company (including
its uncalled capital) and in particular (without prejudice to the
generality of the foregoing) with or without consideration to guarantee
or give security as aforesaid for the payment of any principal moneys,
premiums, interest and other moneys secured by or payable under any
obligations or securities including particularly the obligations or
securities of any company which is (within the meaning of Section 154
of the Companies Act 1948) in relation to the Company a holding company
or a subsidiary of such holding company or of the Company or which is
otherwise associated with the Company in business.
(12) To issue securities which the Company has power to issue by way of
security and indemnity to any person whom the Company has agreed, or is
bound or willing to indemnify, or in satisfaction of any liability
undertaken or agreed to be undertaken by the Company, and generally in
every respect upon such terms and conditions and for such consideration
(if any) as the Company may think fit.
(13) To establish or promote or concur in establishing or promoting any
other company or companies for the purpose of acquiring or undertaking
all or any of the assets and liabilities of this Company, or for any
other purpose which may seem directly or indirectly calculated to
benefit this Company or to advance the objects or interest thereof, or
to take and otherwise acquire and hold or dispose of shares, stock,
debentures, debenture stock or other securities of any such company or
companies.
(14) To amalgamate or enter into partnership with, and to co-operate in any
way with or assist or subsidise any person, firm or company carrying on
any business which this Company is authorised to carry on or possessed
of property suitable for the purposes of the Company.
(15) To pay all expenses incident to the formation or promotion of this or
any other company, and to remunerate any person or company for services
rendered or to be rendered in placing or assisting to place or
guaranteeing the placing of any of the shares in or debentures or
debenture stock or other securities of the Company, or in or about the
promotion, formation or business of the Company, or of any other
company promoted wholly or in part by this Company.
(16) To draw, make, accept, endorse, discount, negotiate, execute and issue,
and to buy, sell and deal with bills of exchange, promissory notes and
other negotiable or transferable instruments or securities.
<PAGE>
(17) To grant pensions or gratuities to any employees or officers (including
Directors) or ex-employees or ex-officers (including ex-Directors) of
the Company or the relations, connections or dependants of any such
persons, and to pay or contribute to insurance schemes having such
objects, and to establish or support associations, institutions, clubs,
funds and trusts which may be considered likely to benefit any such
persons or otherwise advance the interests of the Company or of its
members, and to establish or contribute to any scheme for the purchase
by trustees of fully paid shares in the Company, to be held for the
benefit of employees of the Company, including any Director holding a
salaried employment or office in the Company, and to lend money to the
Company's employees to enable them to purchase fully paid shares in the
Company, and to formulate and carry into effect any scheme for sharing
the profits of the Company with its employees or any of them.
(18) To subscribe or guarantee money for any national, charitable,
benevolent, public, general or useful object, or for any exhibition, or
for any purpose which may seem likely directly or indirectly to further
objects of the Company or the interests of its members.
(19) To distribute among the members of the Company in specie by way of
dividend or bonus or upon a return of capital any property or assets of
the Company, or any proceeds of sale or disposal of any property or
assets of the Company but so that no distribution amounting to a
reduction of capital be made except with the sanction (if any) for the
time being required by law.
(20) To hold in the name of others any property which the Company is
authorised to acquire and to do all or any of the things and matters
aforesaid in any part of the world and either as principal, agent,
contractor, trustee or otherwise, and by or through trustees, agents,
sub-contractors or otherwise, and either alone or in conjunction with
others; and to accept property on trust and to act as trustee,
executor, administrator or attorney either gratuitously or otherwise.
(21) To procure the Company to be registered or incorporated in any part of
the world.
(22) To do all such other things and to carry on such other business or
businesses whatsoever and wheresoever as may, in the opinion of the
Company, be necessary, incidental, conducive or convenient to the
attainment of the above objects or any of them, or calculated directly
or indirectly to enhance the value of or render profitable any of the
Company's property, assets or rights, or otherwise likely in any
respect to be advantageous to the Company.
(23) To purchase and maintain insurance for or for the benefit of any
persons who are or were at any time directors, officers or employees or
auditors of the Company, or of any other company which is its holding
company or in which the Company or such holding company or any of the
predecessors of the Company or of such holding company has any interest
whether direct or indirect or which is in any way allied to or
associated with the Company, or of any subsidiary undertaking of the
Company or of any such other company, or who are or were at any time
trustees of any pension fund in which any employees of the Company or
of any such other company or subsidiary undertaking are interested,
including (without prejudice to
<PAGE>
the generality of the foregoing) insurance against any liability
incurred by such persons in respect of any act or omission in the
actual or purported execution and or discharge of their duties and or
in the exercise or purported exercise of their powers and or otherwise
in relation to the Company or any such other company, subsidiary
undertaking or pension fund and to such extent as may be permitted by
law otherwise to indemnify or to exempt any such person against or from
any such liability; for the purpose of this clause "holding company"
and "subsidiary undertaking" shall have the same meanings as in the
Companies Act 1985 as amended by the Companies Act 1989.
And it is hereby declared that the word "company" in this Clause, except
where used in reference to this Company, shall be deemed to include any
partnership or other body of persons, whether incorporated or not
incorporated, and whether domiciled in the United Kingdom or elsewhere and
further the intention is that the objects specified in each paragraph of
this Clause, shall except where otherwise expressed in such paragraph, be
independent main objects and be in no way limited or restricted by
reference to or inference from the terms of any other paragraph or the name
of the Company.
5 THE LIABILITY OF THE MEMBERS IS LIMITED.
6 (2)THE SHARE CAPITAL OF THE COMPANY IS (POUND)50,000 AND US$816,000,000
DIVIDED INTO 8,160,000,000 ORDINARY SHARES OF US$0.10 EACH AND 50,000
FIXED RATE SHARES OF (POUND)1 EACH.
WE, the several persons whose names, addresses and descriptions are
subscribed, are desirous of being formed into a company in pursuance of
this Memorandum of Association and we respectively agree to take the number
of shares in the capital of the Company set opposite our respective names.
- -------------------
(2) The Company was incorporated with an authorized share capital of
(pound)1,000,000 divided into 1,000,000 Ordinary Shares of(pound)1 each.
On 14 September 1988:
(a) each share of (pound)1 was sub-divided into 20 shares of
5p each; and
(b) the share capital of the Company was increased to
(pound)60,000,000 by the creation of an additional
1,180,000,00 shares of 5p each.
On 20 July 1994 the share capital of the Company was increased to
(pound)200,000,000 by the creation of an additional 2,800,000,000 shares of 5p
each.
On 24 June 1999 the share capital of the Company was increased
to(pound)200,050,000 by the creation of 50,000 7 per cent cumulative fixed rate
shares of (pound)1 each.
On 30 June 1999 the share capital of the Company was increased to
(pound)50,000 and US$816,000,000 by the cancellation of all outstanding ordinary
shares in the Company and the creation of 8,160,000,000 ordinary shares of
US$0.10 each.
<PAGE>
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NAMES AND ADDRESSES AND NUMBER OF SHARES TAKEN BY
DESCRIPTIONS OF SUBSCRIBERS EACH SUBSCRIBER (IN WORDS)
- ----------------------------------- -------------------------------------------
Brian Auld One
Easthampstead Road
Bracknell
Berks
RG12 1NS
Solicitor
- ----------------------------------- -------------------------------------------
Brian Gilbert Guest Cowper One
Easthampstead Road
Bracknell
Berks
RG12 1NS
Solicitor
- ----------------------------------- -------------------------------------------
Dated this 13th day of June, 1984.
Witness to the above Signatures: Paul Lush
Easthampstead Road
Bracknell
Berks
RG12 1NS
Solicitor
<PAGE>
PLAIN ENGLISH - MERGER
Company Number: 1833679
COMPANIES ACT 1985
PUBLIC COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
OF
VODAFONE AIRTOUCH
PUBLIC LIMITED COMPANY
[LINKLATERS & PAINES LOGO]
One Silk Street
London EC2Y 8HQ
Tel: (44 171) 456 2000
Ref: SMW/NYG
<PAGE>
TABLE OF CONTENTS
PRELIMINARY ARTICLES..........................................................1
1 Table A and other standard regulations do not apply....................1
2 The meaning of words and phrases used in the Articles..................1
SHARE CAPITAL.................................................................6
3 Form of the Company's share capital....................................6
FIXED RATE SHARES.............................................................6
4 Right of Fixed Rate Shares to profits..................................6
5 Right of Fixed Rate Shares to capital..................................6
6 Voting rights of Fixed Rate Shares.....................................7
7 Varying the rights of Fixed Rate Shares................................7
CHANGING CAPITAL..............................................................8
8 The power to increase capital..........................................8
9 Application of the Articles to new shares..............................8
10 The power to change capital............................................8
11 Fractions of shares....................................................8
12 The power to reduce capital............................................9
13 Buying back shares.....................................................9
SHARES........................................................................9
14 The special rights of new shares.......................................9
15 The directors' power to deal with shares...............................9
16 The directors' authority to allot "relevant securities" and
"equity securities"...................................................10
17 Power to pay commission and brokerage.................................11
<PAGE>
18 Renunciations of allotted but unissued shares.........................11
19 No trusts or similar interests recognised.............................12
SHARES IN UNCERTIFICATED FORM................................................12
20 Holding shares in uncertificated form and effect of the
CREST Regulations.....................................................12
SHARE CERTIFICATES...........................................................12
21 Certificates..........................................................12
22 Replacement share certificates........................................13
CALLS ON SHARES..............................................................14
23 The directors can make calls on shares................................14
24 The liability for calls...............................................14
25 Interest and expenses on unpaid calls.................................14
26 Sums which are payable when a share is allotted are treated
as a call.............................................................15
27 Calls can be for different amounts....................................15
28 Paying calls early....................................................15
FORFEITING SHARES............................................................15
29 Notice following non-payment of a call................................15
30 Contents of the notice................................................15
31 Forfeiture if the notice is not complied with.........................16
32 Forfeiture will include unpaid dividends..............................16
33 Dealing with forfeited shares.........................................16
34 Cancelling forfeiture.................................................16
35 The position of shareholders after forfeiture.........................16
LIENS ON PARTLY PAID SHARES..................................................16
36 The Company's lien on shares..........................................16
<PAGE>
37 Enforcing the lien by selling the shares..............................17
38 Using the proceeds of the sale........................................17
39 Evidence of forfeiture or enforcement of lien.........................17
CHANGING SHARE RIGHTS........................................................18
40 Changing the special rights of shares.................................18
41 More about the special rights of shares...............................18
TRANSFERRING SHARES..........................................................18
42 Share transfers.......................................................18
43 More about transfers of shares in certificated form...................19
44 The Company can refuse to register certain transfers..................19
45 Closing the Register..................................................19
46 Overseas branch registers.............................................20
PERSONS AUTOMATICALLY ENTITLED TO SHARES BY LAW..............................20
47 When a shareholder dies...............................................20
48 Registering personal representatives..................................20
49 A person who wants to be registered must give notice..................20
50 Having another person registered......................................20
51 The rights of people automatically entitled to shares by law..........21
SHAREHOLDERS WHO CANNOT BE TRACED............................................21
52 Shareholder who cannot be traced......................................21
GENERAL MEETINGS.............................................................22
53 The Annual General Meeting............................................22
54 Extraordinary General Meetings........................................22
55 Calling an Extraordinary General Meeting..............................22
<PAGE>
56 Notice of General Meetings............................................22
PROCEEDINGS AT GENERAL MEETINGS..............................................23
57 The chairman of a General Meeting.....................................23
58 Security, and other arrangements at General Meetings..................24
59 Overflow meeting rooms................................................24
60 The quorum needed for General Meetings................................24
61 The procedure if there is no quorum...................................24
62 Adjourning meetings...................................................25
63 Amending Resolutions..................................................25
VOTING PROCEDURES............................................................25
64 How votes are taken...................................................25
65 How a poll is taken...................................................26
66 Where there cannot be a poll..........................................26
67 A General Meeting continues after a poll is demanded..................26
68 Timing of a poll......................................................26
69 The chairman's casting vote...........................................26
70 The effect of a declaration by the chairman...........................26
VOTING RIGHTS................................................................27
71 The votes of shareholders.............................................27
72 Shareholders who owe money to the Company.............................27
73 Suspension of rights on non-disclosure of interest....................27
74 Votes of shareholders who are of unsound mind.........................29
75 The votes of joint holders............................................29
PROXIES......................................................................30
<PAGE>
76 Appointment of proxies................................................30
77 Completing proxy forms................................................30
78 Delivering proxy forms................................................30
79 Cancellation of proxy's authority.....................................31
80 Authority of proxies..................................................31
81 Representatives of companies..........................................32
82 Challenging votes.....................................................32
DIRECTORS....................................................................32
83 The number of directors...............................................32
84 Qualification to be a director........................................32
85 Directors' fees and expenses..........................................32
86 Special pay...........................................................33
87 Directors' expenses...................................................33
88 Directors' pensions and other benefits................................33
89 Appointing directors to various posts.................................34
CHANGING DIRECTORS...........................................................34
90 Age limits............................................................34
91 Retiring directors....................................................34
92 Eligibility for re-election...........................................34
93 Re-electing a director who is retiring................................35
94 Election of two or more directors.....................................35
95 People who can be directors...........................................35
96 The power to fill vacancies and appoint extra directors...............35
97 Removing and appointing directors by an ordinary resolution...........35
<PAGE>
98 When directors are disqualified.......................................36
DIRECTORS' MEETINGS..........................................................36
99 Directors' meetings...................................................36
100 Who can call directors' meetings......................................36
101 How directors' meetings are called....................................37
102 Quorum................................................................37
103 The Chairman of directors' meetings...................................37
104 Voting at directors' meetings.........................................37
105 Directors can act even if there are vacancies.........................37
106 Directors' meetings by video conference and telephone.................38
107 Resolutions in writing................................................38
108 The validity of directors' actions....................................38
DIRECTORS' INTERESTS.........................................................38
109 Directors' interests in transactions with the Company.................38
110 When directors can vote on things in which they are interested........39
111 More about directors' interests.......................................40
DIRECTORS' COMMITTEES........................................................41
112 Delegating powers to committees.......................................41
113 Committee procedure...................................................41
DIRECTORS' POWERS............................................................41
114 The directors' management powers......................................41
115 The power to establish local boards...................................41
116 The power to appoint attorneys........................................42
117 Borrowing powers......................................................42
<PAGE>
118 Borrowing restrictions................................................43
ALTERNATE DIRECTORS..........................................................44
119 Alternate directors...................................................44
THE SECRETARY................................................................45
120 The Secretary and Deputy and Assistant Secretaries....................45
THE SEAL.....................................................................46
121 The Seal..............................................................46
AUTHENTICATING DOCUMENTS.....................................................46
122 Establishing that documents are genuine...............................46
RESERVES.....................................................................47
123 Setting up reserves...................................................47
DIVIDENDS....................................................................47
124 No dividends are payable except out of profits........................47
125 Final dividends.......................................................47
126 Fixed and interim dividends...........................................47
127 Dividends not in cash.................................................48
128 Calculation and currency of dividends.................................48
129 Deducting amounts owing from dividends and other money................48
130 Payments to shareholders..............................................48
131 Record dates for payments and other matters...........................49
132 Dividends which are not claimed.......................................49
133 Waiver of dividends...................................................50
CAPITALISING RESERVES........................................................50
134 Capitalising reserves.................................................50
<PAGE>
SCRIP DIVIDENDS..............................................................50
135 Ordinary Shareholders can be offered the right to receive extra
shares instead of cash dividends......................................50
ACCOUNTS.....................................................................52
136 Accounting and other records..........................................52
137 Location and inspection of records....................................53
138 Sending copies of accounts and other documents........................53
AUDITORS.....................................................................53
139 Acts of auditors......................................................53
140 Auditors at General Meetings..........................................53
NOTICES......................................................................54
141 Serving and delivering notices and other documents....................54
142 Notices to joint holders..............................................54
143 Notices for shareholders with foreign addresses.......................54
144 When notices are served...............................................54
145 Serving notices and documents on shareholders who have died or
are bankrupt..........................................................55
146 If documents are accidentally not sent................................55
MINUTES AND RECORDS..........................................................55
147 Minutes...............................................................55
148 Availability of records for inspection and notifying the Registrar
of Companies..........................................................55
WINDING UP...................................................................56
149 Directors' power to petition..........................................56
150 Distribution of assets in kind........................................56
DESTROYING DOCUMENTS.........................................................56
151 Destroying documents..................................................56
<PAGE>
INDEMNITY AND INSURANCE......................................................57
152 Indemnity.............................................................57
153 Insurance.............................................................57
SHARE WARRANTS...............................................................58
154 Issue of Share Warrants...............................................58
155 Directors can accept a certificate instead of a Share Warrant.........58
156 Requesting a Share Warrant............................................59
157 Replacing Share Warrants..............................................59
158 Rights of the Bearer..................................................59
159 Bearers of Share Warrants participating in securities offers..........60
160 Communications with Bearers of Share Warrants.........................60
161 Issuing shares to which the Share Warrant relates.....................61
ADR DEPOSITARY...............................................................61
162 ADR Depositary can appoint proxies....................................61
163 The ADR Depositary must keep a Proxy Register.........................62
164 Appointed Proxies can only attend General Meetings if properly
appointed.............................................................62
165 Rights of Appointed Proxies...........................................62
166 Sending information to an Appointed Proxy.............................62
167 The Company can pay dividends to an Appointed Proxy...................62
168 The Proxy Register may be fixed at a certain date.....................62
169 The nature of an Appointed Proxy's interest...........................63
170 Validity of the appointment of Appointed Proxies......................63
Glossary.....................................................................64
<PAGE>
Company Number: 1833679
THE COMPANIES ACT 1985
COMPANY LIMITED BY SHARES
ARTICLES OF ASSOCIATION
Adopted on 30 June 1999 pursuant to a Special Resolution passed on 24 May 1999
OF
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
PRELIMINARY ARTICLES
1 TABLE A AND OTHER STANDARD REGULATIONS DO NOT APPLY
The regulations in Table A of the Companies Act 1948, and any similar
regulations in THE COMPANIES ACTS do not apply to the COMPANY.
2 THE MEANING OF WORDS AND PHRASES USED IN THE ARTICLES
2.1 The following table gives the meaning of certain words and phrases as they
are used in these ARTICLES. However, the meaning given in the table does
not apply if that is inconsistent with the context in which a word or
phrase appears. After the ARTICLES there is a Glossary which explains
various words and phrases. The Glossary is not part of the MEMORANDUM or
ARTICLES, and it does not affect their meaning. Throughout the ARTICLES,
those words and expressions explained in this Article 2.1 are printed in
BOLD and those explained in the Glossary are printed in italics.
WORDS AND PHRASES MEANING
ADJUSTED TOTAL OF CAPITAL This is defined in Article 118.2.
AND RESERVES
ADR DEPOSITARY A custodian or other person or persons
approved by the directors who (a) holds
SHARES in the COMPANY under arrangements
where either the custodian or some other
person issues AMERICAN DEPOSITARY RECEIPTS
which evidence AMERICAN DEPOSITARY SHARES
representing SHARES in the COMPANY; and/or
(b) is appointed by or on behalf of the
COMPANY to hold SHARE WARRANTS.
AMERICAN DEPOSITARY These represent SHARES in the COMPANY and
SHARES are evidenced by AMERICAN DEPOSITARY
RECEIPTS.
<PAGE>
WORDS AND PHRASES MEANING
AMERICAN DEPOSITARY These represent AMERICAN DEPOSITARY SHARES
RECEIPTS either physically or in the form of DIRECT
REGISTRATION RECEIPTS.
APPOINTED PROXY This is defined in Article 162.1.
APPROVED TRANSFER This is defined in Article 73.9, for
the purposes of Article 73.
ARTICLES The COMPANY'S Articles of Association,
including any changes made to them.
BEARER This is defined in Article 154.1.
CLASS MEETING This is defined in Article 40.1.
COMMON SEAL Any seal which the COMPANY may have under the
COMPANIES ACTS and which the COMPANY may use
to execute documents.
COMPANIES ACT 1985 The Companies Act 1985, as amended by the
Companies Act 1989.
COMPANIES ACTS The COMPANIES ACT 1985, the CREST
REGULATIONS and other legislation relating to
COMPANIES and affecting the COMPANY
(including any orders, regulations or other
subordinated legislation made under them) in
force from time to time.
COMPANY Includes any company, corporate body and any
corporation established anywhere in the
world.
COMPANY REPRESENTATIVE This is defined in Article 81.1.
THE COMPANY Vodafone AirTouch Public Limited Company.
CREST REGULATIONS The Uncertificated Securities Regulations
1995.
DEFAULT SHARES This is defined in Article 73.1, for the
purposes of Article 73.
DIRECT REGISTRATION RECEIPT An AMERICAN DEPOSITARY RECEIPT in
UNCERTIFICATED FORM, the ownership of which
is recorded in the DIRECT REGISTRATION
SYSTEM.
DIRECT REGISTRATION SYSTEM The system maintained by the ADR DEPOSITARY
in which the ADR DEPOSITARY records the
ownership of DIRECT REGISTRATION RECEIPTS.
DIRECTION NOTICE This is defined in Article 73.3 for the
purposes of Article 73.
ELECTED SHARES This is defined in Article 135.8.
ELECTRONIC MAIL Includes any electronic transmission in
any form through any medium (including
transmissions by fax).
EQUITY SECURITIES The meaning of equity securities is given in
Section 94 COMPANIES ACT 1985.
<PAGE>
WORDS AND PHRASES MEANING
EQUITY SHARES Shares in the capital of the COMPANY which
are regarded as equity SHARE capital
pursuant to Section 744 COMPANIES ACT 1985.
FIXED RATE SHARES The 7 per cent cumulative fixed rate shares
of(pound)1 each in the COMPANY.
GROUP This is defined in Article 118.2, for the
purposes of Article 118.
LONDON STOCK EXCHANGE London Stock Exchange Limited.
MEMORANDUM The Memorandum of Association of the COMPANY.
NON EQUITY SECURITIES Securities which are not EQUITY SECURITIES.
OPERATOR CRESTCo Limited or any other operator of a
RELEVANT SYSTEM under the CREST REGULATIONS.
ORDINARY SHAREHOLDER A holder of the COMPANY'S ORDINARY SHARES.
ORDINARY SHARES Ordinary shares of U.S.$0.10 each in the
COMPANY.
PAID-UP SHARE OR OTHER Includes a SHARE or other security which is
SECURITY treated ("credited") as paid-up.
PAY Includes any kind of reward or payment for
services.
PRESCRIBED PERIOD This is defined in Article 16.5, for the
purposes of Article 16.
RECOGNISED CLEARING HOUSE A clearing house granted recognition under
the Financial Services Act 1986.
RECOGNISED INVESTMENT An investment exchange granted recognition
EXCHANGE under the Financial Services Act 1986.
RECORD DATE This is defined in Article 168.1, for the
purposes of Article 168.
REGISTER The COMPANY'S register of members.
REGISTERED OFFICE The COMPANY'S registered office.
RELEVANT COMPANY This is defined in Article 153.1, for
the purposes of Article 153.
RELEVANT SECURITIES The meaning of relevant securities is given
in Section 80 of the COMPANIES ACT 1985.
RELEVANT SYSTEM A relevant system under the CREST
REGULATIONS whose OPERATOR allows SHARES or
other securities of the COMPANY to be
transferred using that system.
RELEVANT VALUE This is defined in Article 135.4, for the
purposes of Article 135.
<PAGE>
WORDS AND PHRASES MEANING
RIGHTS of any share The rights attached to a SHARE when it is
issued, or afterwards.
RIGHTS ISSUE This is defined in Article 16.5, for the
purposes of Article 16.
SECRETARY Any person appointed by the directors to do
work as the company secretary including any
assistant or deputy secretary.
SECURITIES OFFER This is defined in Article 159.3, for the
purposes of Article 159.
SECURITIES SEAL A seal used to stamp securities issued by
the COMPANY in CERTIFICATED FORM as evidence
that the COMPANY has issued them.
SHARE WARRANT A share warrant to bearer issued by the
COMPANY.
SHAREHOLDER A holder of the COMPANY'S SHARES.
SHAREHOLDERS' MEETING A meeting of SHAREHOLDERS including both a
General Meeting of the COMPANY and a CLASS
MEETING.
SHARES Shares which are in issue at the relevant
time.
STERLING The currency of the UNITED KINGDOM.
SUBSIDIARY A subsidiary as defined in Section 736 of
the COMPANIES ACT 1985.
SUBSIDIARY UNDERTAKING A subsidiary undertaking as defined in
Section 258 of the COMPANIES ACT 1985.
TAKEOVER OFFER A takeover offer as defined in Section 428
of the Companies Act 1985.
TERMS of a share The terms on which a SHARE was issued.
TRANSFER OFFICE The place where the REGISTER is kept.
UNITED KINGDOM Great Britain and Northern Ireland.
US DOLLARS The currency of the United States of America.
WORKING DAY A day on which banks in the UNITED KINGDOM
are generally open for business, excluding
Saturdays, Sundays and public holidays.
2.2 References to a DEBENTURE include DEBENTURE STOCK and references to a
DEBENTURE HOLDER include a DEBENTURE STOCKHOLDER.
2.3 Where the ARTICLES refer to a person who is automatically entitled to a
SHARE by law, this includes a person who is entitled to the SHARE as a
result of the death, or bankruptcy, of a SHAREHOLDER.
<PAGE>
2.4 Words which refer to a single number also refer to plural numbers, and
the other way around.
2.5 Words which refer to males also refer to females and to other PERSONS.
2.6 References to a PERSON or PEOPLE include COMPANIES, unincorporated
associations and so on.
2.7 References to OFFICERS include directors, managers and the SECRETARY,
but not the COMPANY'S auditors.
2.8 References to the DIRECTORS are to the board of directors unless the
way in which DIRECTORS is used does not allow this meaning.
2.9 Any headings in these ARTICLES are only included for convenience. They
do not affect the meaning of the ARTICLES.
2.10 When an Act or other legislation or the ARTICLES are referred to, the
version which is current at any particular time will apply.
2.11 Where the ARTICLES give any power or authority to anybody, this power
or authority can be used on any number of occasions, unless the way in
which the word is used does not allow this meaning.
2.12 Any word which is defined in the COMPANIES ACTS (excluding any
modification to them by a further act or statutory instrument which is
not in force when these ARTICLES are adopted) means the same in the
ARTICLES, unless the ARTICLES define it differently, or the way in
which the word is used is inconsistent with the definition given in the
COMPANIES ACTS.
2.13 Where the ARTICLES say that anything can be done by passing an ordinary
resolution, this can also be done by passing a special resolution or an
extraordinary resolution.
2.14 Where the ARTICLES refer to changing the amount of SHARES this means
doing any or all of the following:
o subdividing the SHARES into other SHARES with a smaller nominal
value;
o consolidating the SHARES into other SHARES with a larger nominal
value; and
o dividing SHARES which have been consolidated into SHARES with a
larger nominal value than the original SHARES had.
2.15 Where the ARTICLES refer to any document being MADE EFFECTIVE this
means being signed, sealed or executed in some other legally valid way.
2.16 Where the ARTICLES refer to MONTHS or YEARS, these are calendar months
or years.
2.17 ARTICLES which apply to fully-paid SHARES can also apply to stock.
References in those ARTICLES to SHARE or SHAREHOLDER include stock or
stockholder.
2.18 Where the ARTICLES refer to SHARES in CERTIFICATED FORM, this means
that ownership of the SHARES can be transferred using a written
transfer document (rather than in accordance with the CREST
REGULATIONS) and that a share certificate is usually issued to the
owner.
2.19 Where the ARTICLES refer to SHARES in UNCERTIFICATED FORM, this means
that ownership of the SHARES can be transferred in accordance with the
CREST REGULATIONS without using a written transfer document and that no
share certificate is issued to the owner.
<PAGE>
2.20 Where the ARTICLES refer to A PERIOD OF CLEAR DAYS, the period does not
include the date the notice is delivered, or treated as being
delivered, nor the date of the General Meeting or other relevant event.
SHARE CAPITAL
3 FORM OF THE COMPANY'S SHARE CAPITAL
The COMPANY'S share capital at the date when these ARTICLES are adopted
is (pound)50,000 and U.S.$816,000,000. This is made up of 50,000 7 per
cent cumulative fixed rate shares of (pound)1 each and 8,160,000,000
ordinary shares of U.S.$0.10 each.
FIXED RATE SHARES
4 RIGHT OF FIXED RATE SHARES TO PROFITS
4.1 If the COMPANY has profits which are available for distribution and the
directors resolve that these should be distributed, the holders of the
FIXED RATE SHARES are entitled, before the holders of any other class
of SHARES, to be paid in respect of each financial year or other
accounting period of the COMPANY a fixed cumulative preferential
dividend ("PREFERENTIAL DIVIDEND") at the rate of 7 per cent per annum
on the nominal value of the FIXED RATE SHARES which is PAID-UP or
treated as PAID-UP.
4.2 Subject to Article 4.3 below, the PREFERENTIAL DIVIDEND will be paid
yearly, on 31 March in respect of each financial year ending on or
before that date. If this date is not a WORKING DAY, the payment will
be made on the next WORKING DAY.
4.3 When the COMPANY has to calculate a dividend on the FIXED RATE SHARES
for a period other than a calendar year ending on 31 March (being
another accounting period, the first dividend period arising for the
FIXED RATE SHARES or otherwise), the daily dividend rate will be worked
out by dividing the yearly dividend rate by 365 days. This daily rate
will then be multiplied by the actual number of days which have passed
in the relevant period, but not including the date of payment, to give
the amount payable for that period.
4.4 Except as provided in this Article, the FIXED RATE SHARES do not have
any other right to share in the COMPANY'S profits.
5 RIGHT OF FIXED RATE SHARES TO CAPITAL
5.1 If the COMPANY is wound up (but in no other circumstances involving a
repayment of capital or distribution of assets to SHAREHOLDERS whether
by reduction of capital, redeeming or buying back SHARES or otherwise),
the holders of the FIXED RATE SHARES will be entitled, before the
holders of any other class of SHARES to:
o repayment of the amount paid up or treated as PAID UP on the
nominal value of each FIXED RATE SHARE;
o the amount of any dividend which is due for payment on, or after,
the date the winding up commenced which is payable for a period
ending on or before that date. This applies even if the dividend
has not been declared or earned;
o any arrears of dividend on any FIXED RATE SHARES held by them.
This applies even if the dividend has not been declared or
earned; and
<PAGE>
o a proportion of any dividend in respect of the financial year or
other accounting period which began before the winding up
commenced but ends after that date. The proportion will be the
amount of the dividend that would otherwise have been payable for
the period which ends on that date. This applies even if the
dividend has not been declared or earned.
5.2 If there is a winding up to which Article 5.1 applies, and there is not
enough to pay the amounts due on the FIXED RATE SHARES, the holders of
the FIXED RATE SHARES will share what is available in proportion to the
amounts to which they would otherwise be entitled. The holders of the
FIXED RATE SHARES will be given preference over the holders of other
classes of SHARES which rank behind them in sharing in the COMPANY'S
assets.
5.3 Except as provided in this Article 5, the FIXED RATE SHARES do not have
any other right to share in the COMPANY'S surplus assets.
6 VOTING RIGHTS OF FIXED RATE SHARES
6.1 The holders of the FIXED RATE SHARES are only entitled to receive
notice of General Meetings, or to attend, speak and vote at General
Meetings, as set out below.
o If a resolution is to be proposed at the General Meeting to wind
up the COMPANY, they are entitled to receive notice of the
General Meeting and can attend, but are not entitled to speak or
vote.
o If a resolution is to be proposed at the General Meeting which
would vary or abrogate the RIGHTS attached to the FIXED RATE
SHARES, they are entitled to receive notice of the General
Meeting and are entitled to attend, speak and vote but only in
respect of such resolution or any motion to adjourn the General
Meeting before such resolution is voted on.
6.2 If the holders of the FIXED RATE SHARES are entitled to vote at a
General Meeting, each holder present in person or by proxy (or, being a
COMPANY, by a COMPANY REPRESENTATIVE) has one vote on a show of hands
and on a poll every holder who is present in person or by proxy (or,
being a COMPANY, by a COMPANY REPRESENTATIVE) shall have one vote in
respect of each fully paid FIXED RATE SHARE.
7 VARYING THE RIGHTS OF FIXED RATE SHARES
The RIGHTS of the holders of the FIXED RATE SHARES will be regarded as
being varied or abrogated if any resolution is passed for the reduction
of the amount of capital paid up on the FIXED RATE SHARES but not for
the repayment of the FIXED RATE SHARES at par.
Accordingly, this can only take place if:
o holders of at least three quarters in nominal value of the FIXED
RATE SHARES agree in writing; or
o an extraordinary resolution is passed at a separate CLASS MEETING
by the holders of the FIXED RATE SHARES approving the proposal,
in accordance with Article 40.
<PAGE>
CHANGING CAPITAL
8 THE POWER TO INCREASE CAPITAL
The SHAREHOLDERS can increase the COMPANY'S share capital by passing an
ordinary resolution. The resolution must fix the:
o amount of the increase;
o nominal value of the new SHARES; and
o currency or currencies in which the nominal value of such shares
is to be expressed.
9 APPLICATION OF THE ARTICLES TO NEW SHARES
The provisions of the ARTICLES about allotment, payment of calls,
transfers, automatic entitlement by law, forfeiture, lien and all other
things apply to new SHARES under Article 8 in the same way as if they
were part of the COMPANY'S existing share capital.
10 THE POWER TO CHANGE CAPITAL
The SHAREHOLDERS can pass ordinary resolutions to do any of the
following:
o consolidate, or consolidate and then divide, all or any part of
the COMPANY'S share capital into new SHARES of a larger nominal
value than the existing SHARES;
o cancel any SHARES which have not been taken, or agreed to be
taken, by any person at the date of the resolution, and reduce
the amount of the COMPANY'S share capital by the amount of the
cancelled SHARES;
o divide some or all of the SHARES into SHARES which are of a
smaller nominal value than is fixed in the MEMORANDUM. This is
subject to any restrictions under the COMPANIES ACTS. The
resolution can provide that, as between the SHARES resulting from
such subdivision, different RIGHTS and restrictions which the
COMPANY can apply to new SHARES may apply to all or any of the
different divided SHARES.
11 FRACTIONS OF SHARES
11.1 If any SHARES are consolidated or divided, the directors have power to
deal with any fractions of SHARES which result or any other difficulty
that arises. If the directors decide to sell any SHARES representing
fractions, they must do so for the best price reasonably obtainable and
distribute the net proceeds of sale among SHAREHOLDERS in proportion to
their fractional entitlements in accordance with their RIGHTS and
interests. The directors can sell to any person (including the COMPANY,
if the COMPANIES ACTS allow this) and can authorise any person to
transfer those SHARES to the buyer or in accordance with the buyer's
instructions. The buyer does not need to take any steps to see how any
money he paid is used. Nor will his ownership be affected if the sale
was irregular or invalid in any way.
11.2 So far as the COMPANIES ACTS allow, when SHARES are consolidated or
divided, the directors can treat a SHAREHOLDER'S SHARES which are held
in CERTIFICATED FORM and in UNCERTIFICATED FORM as separate
shareholdings. The directors can also arrange for any SHARES which
result from a consolidation or division and which represent rights to
fractions of SHARES to be entered in the REGISTER as SHARES in
CERTIFICATED FORM where this makes it easier to sell them.
<PAGE>
12 THE POWER TO REDUCE CAPITAL
The COMPANY'S SHAREHOLDERS can pass a special resolution to reduce in
any way:
o the COMPANY'S share capital; or
o any capital redemption reserve, share premium account or other
undistributable reserve.
This is subject to any restrictions under the COMPANIES ACTS.
13 BUYING BACK SHARES
The COMPANY can buy back, or agree to buy back in the future, any
SHARES of any class (including redeemable SHARES) in accordance with
the COMPANIES ACTS. However, if the COMPANY has other SHARES in issue
which are listed on the LONDON STOCK EXCHANGE and which are convertible
at any time into the class of EQUITY SHARES to be repurchased, the
holders of the convertible SHARES must first pass an extraordinary
resolution approving the buy-back at a separate CLASS MEETING. A
resolution is not required, however, if the terms on which the
convertible SHARES were issued allow the buy-back.
SHARES
14 THE SPECIAL RIGHTS OF NEW SHARES
14.1 If the COMPANY issues new SHARES, the new SHARES can have any RIGHTS or
restrictions attached to them. The RIGHTS can take priority over the
RIGHTS of existing SHARES, or existing SHARES can take priority over
them, or the new SHARES and the existing SHARES can rank equally. These
RIGHTS and restrictions can apply to sharing in the COMPANY'S profits
or assets. Other RIGHTS and restrictions can also apply, for example to
the right to vote.
14.2 The powers conferred by Article 14.1 are subject to the provisions of
Article 14.5.
14.3 The RIGHTS and restrictions referred to in Article 14.1 can be decided
by an ordinary resolution passed by the SHAREHOLDERS. The directors can
also take these decisions if they do not conflict with any resolution
passed by the SHAREHOLDERS.
14.4 If the COMPANIES ACTS allow this, the RIGHTS of any new SHARES can
include RIGHTS for the holder and/or the COMPANY to have them redeemed.
14.5 The ability to attach particular RIGHTS and restrictions to new SHARES
may be restricted by special rights previously given to holders of any
existing SHARES.
15 THE DIRECTORS' POWER TO DEAL WITH SHARES
15.1 The directors can decide how to deal with any SHARES which have not
been issued. The directors can:
o allot them on any terms, which can include the right to transfer
the allotment to another person before any person has been
entered on the REGISTER. This is known as the right to RENOUNCE
the allotment (see also Article 18);
o grant options to give people a right to acquire SHARES in the
future; or
o dispose of the SHARES in any other way.
<PAGE>
15.2 The directors are free to decide with whom they deal, when they deal
with the SHARES, and the terms on which they deal.
15.3 For the purposes of Article 15.1, the directors must comply with:
o the provisions of the COMPANIES ACTS relating to authority,
pre-emption rights and other matters; and
o any resolution of a General Meeting which is passed under the
COMPANIES ACTS.
16 THE DIRECTORS' AUTHORITY TO ALLOT "RELEVANT SECURITIES" AND "EQUITY
SECURITIES"
16.1 This Article regulates the authority of the directors to allot RELEVANT
SECURITIES and their power to allot EQUITY SECURITIES for cash.
16.2 The directors are authorised, generally and without conditions, under
Section 80 of the COMPANIES ACT 1985, to allot RELEVANT SECURITIES.
They are authorised to allot them for any PRESCRIBED PERIOD. The
maximum amount of RELEVANT SECURITIES which the directors can allot in
each PRESCRIBED PERIOD is the SECTION 80 AMOUNT.
16.3 Under the directors' general authority in Article 16.2, they have the
power to allot EQUITY SECURITIES, entirely paid for in cash, free of
the restriction in Section 89(1) of the COMPANIES ACT 1985. They have
the power to allot them for any PRESCRIBED PERIOD. There is no maximum
amount of EQUITY SECURITIES which the directors can allot when the
allotment is in connection with a RIGHTS ISSUE. In all other cases, the
maximum amount of EQUITY SECURITIES which the directors can allot is
the SECTION 89 AMOUNT.
16.4 During any PRESCRIBED PERIOD, the directors can make offers and enter
into agreements which would, or might, require SHARES or other
securities to be allotted after that period has ended.
16.5 For the purposes of this Article:
o RIGHTS ISSUE means an offer of EQUITY SECURITIES which is open
for a period decided on by the directors to the people who are
registered on a particular date (chosen by the directors) as
holders of:
(i) ORDINARY SHARES, in proportion to their holdings of ORDINARY
SHARES; and
(ii) other classes of EQUITY SECURITIES or NON EQUITY SECURITIES
which give them the right to receive the offer in accordance
with their RIGHTS.
However, the directors can do the following things (and the
issue will still be treated as a RIGHTS ISSUE for the purpose
of this Article if they do so):
o sell any fractions of EQUITY SECURITIES to which people
would be entitled and keep the net proceeds for the
COMPANY'S benefit or make other appropriate arrangements to
deal with such fractions;
o make the RIGHTS ISSUE subject to any limits or restrictions
which the directors think are necessary or appropriate to
deal with legal or practical problems under the laws of any
territory, or under the requirements of any recognised
regulatory body, or stock exchange, in any territory or as a
result of SHARES being represented by AMERICAN DEPOSITARY
SHARES; or
o treat a SHAREHOLDER'S holdings in CERTIFICATED FORM and
UNCERTIFICATED FORM as separate shareholdings.
<PAGE>
o PRESCRIBED PERIOD means in the first instance the period
ending on the date of the Annual General Meeting in 2000 or
on 24 August 2000, whichever is the earlier. After this, the
PRESCRIBED PERIOD means a period of no more than five years
fixed by the SHAREHOLDERS by passing a resolution at a
General Meeting. The SHAREHOLDERS can, by passing further
resolutions, renew or extend this power (including the first
PRESCRIBED PERIOD), for periods of no more than five years
each. Such resolutions can take the form of:
o an ordinary resolution fixing a period under Article
16.2; or
o a special resolution fixing a period under Article
16.3; or
o a special resolution fixing identical periods under
Article 16.2 and under Article 16.3; or
o a special resolution fixing different periods under
Article 16.2 and under Article 16.3.
o The SECTION 80 AMOUNT for the first PRESCRIBED PERIOD is
that fixed at the Extraordinary General Meeting of the
COMPANY held on 24 May 1999, being U.S.$816,000,000. For any
subsequent PRESCRIBED PERIOD the SECTION 80 AMOUNT is that
stated in a relevant resolution passed by the SHAREHOLDERS
at a General Meeting.
o The SECTION 89 AMOUNT for the first PRESCRIBED PERIOD is
that fixed at the Extraordinary General Meeting of the
COMPANY held on 24 May 1999, being U.S.$30,223,864. For any
subsequent PRESCRIBED PERIOD the SECTION 89 AMOUNT is that
stated in a relevant special resolution passed by the
SHAREHOLDERS at a General Meeting.
o In working out any maximum amounts of securities referred to
in this Article, the nominal value of rights to subscribe
for SHARES, or to convert any securities into SHARES, will
be taken as the nominal value of the SHARES which would be
allotted if the subscription or conversion takes place.
17 POWER TO PAY COMMISSION AND BROKERAGE
17.1 The COMPANY can use all the powers given by the COMPANIES ACTS to
pay commission or brokerage to any person who:
o applies, or agrees to apply, for any new SHARES; or
o gets anybody else to apply, or agree to apply for, any new
SHARES.
17.2 The rate per cent or amount of the commission paid or agreed to be paid
must be disclosed as required by the COMPANIES ACTS and must not exceed
10 per cent of the price at which the SHARES in respect of which the
commission is paid are issued (or an equivalent amount).
18 RENUNCIATIONS OF ALLOTTED BUT UNISSUED SHARES
Where a SHARE has been allotted to a person but that person has not yet
been entered on the REGISTER, the directors can recognise a transfer
(called a renunciation) by that person of his right to the SHARE in
favour of some other person. The ability to renounce allotments only
applies if the terms on which the SHARE is allotted are consistent with
renunciation. The directors can impose terms and conditions regulating
renunciation rights and can allow
<PAGE>
renunciation rights to be participating securities (as defined in the
CREST REGULATIONS) in their own right.
19 NO TRUSTS OR SIMILAR INTERESTS RECOGNISED
19.1 The COMPANY will only be affected by, or recognise, a current and
absolute right to whole SHARES. The fact that any SHARE, or any part of
a SHARE, may not be owned outright by the registered owner is not of
any concern to the COMPANY, for example if a SHARE is held on any kind
of trust.
19.2 The only exception to what is said in ARTICLE 19.1 is for any right:
o which is expressly given by these ARTICLES; or
o which the COMPANY has a legal duty to recognise.
SHARES IN UNCERTIFICATED FORM
20 HOLDING SHARES IN UNCERTIFICATED FORM AND EFFECT OF THE CREST
REGULATIONS
20.1 Subject to the ARTICLES and so far as the COMPANIES ACTS allow this,
the directors can decide that any class of SHARES can:
o be held in UNCERTIFICATED FORM and that title to such SHARES can
be transferred using a RELEVANT SYSTEM; or
o no longer be held and transferred in UNCERTIFICATED FORM.
20.2 These ARTICLES do not apply to SHARES of any class which are held in
UNCERTIFICATED FORM to the extent that the ARTICLES are inconsistent
with the:
o holding of SHARES of that class in UNCERTIFICATED FORM;
o transfer of title to SHARES of that class by means of a RELEVANT
SYSTEM; or
o CREST REGULATIONS.
SHARE CERTIFICATES
21 CERTIFICATES
21.1 When a SHAREHOLDER is first registered as the holder of any class of
SHARES in CERTIFICATED FORM, he is entitled to receive, free of charge,
one certificate for all the SHARES in CERTIFICATED FORM of that class
which he holds. If he holds SHARES of more than one class in
CERTIFICATED FORM, he is entitled to receive a separate share
certificate for each class.
21.2 The COMPANY must also observe any requirements of the CREST REGULATIONS
when issuing share certificates. Where the COMPANIES ACTS allow, the
COMPANY does not need to issue share certificates.
21.3 If a SHAREHOLDER receives more SHARES in CERTIFICATED FORM of any class
he is entitled, without charge, to another certificate for the
additional SHARES.
21.4 If a SHAREHOLDER transfers part of his SHARES covered by a certificate,
he is entitled, free of charge, to a new certificate for the balance if
the balance is also held in CERTIFICATED FORM. The old certificate will
be cancelled.
<PAGE>
21.5 The COMPANY does not have to issue more than one certificate for any
SHARE in CERTIFICATED FORM, even if that SHARE is held jointly.
21.6 When the COMPANY delivers a certificate to one joint holder of SHARES
in CERTIFICATED FORM, this is treated as delivery to all of the joint
SHAREHOLDERS.
21.7 If requested in writing to do so, the COMPANY can deliver a certificate
to a broker or agent who is acting for a person who is buying SHARES in
CERTIFICATED FORM, or who is having SHARES transferred to him in
CERTIFICATED FORM.
21.8 The directors can decide how share certificates are made effective. For
example, they can be:
o signed by two directors or one director and the SECRETARY;
o sealed with the COMMON SEAL or the SECURITIES SEAL (or in the
case of SHARES on a branch REGISTER, an official seal for use in
the relevant territory); or
o printed, in any way, with a copy of the signature of those
directors and the SECRETARY. The copy can be made or produced
mechanically, electronically or in any other way the directors
approve.
21.9 A share certificate must state the number and class of SHARES to which
it relates and the amount PAID-UP on those SHARES. It cannot be for
SHARES of more than one class.
21.10 If all the issued SHARES of the COMPANY, or a particular class of
SHARES, are fully PAID UP and rank equally with each other for all
purposes, none of those SHARES will (unless the directors pass a
resolution to the contrary) have a distinguishing number as long as it
remains fully PAID UP and ranks equally for all purposes with all the
SHARES of the same class which are issued and fully PAID UP.
21.11 The time limit for the COMPANY to prepare a share certificate for
SHARES in CERTIFICATED FORM is:
o one month after the allotment of a new SHARE;
o five WORKING DAYS after a valid transfer of fully-paid shares is
presented for registration; or
o two months after a valid transfer of partly-paid shares is
presented for registration.
21.12 Article 21.11 only applies to the extent that the terms of issue of
SHARES do not provide otherwise.
21.13 Share certificates will also be prepared and sent earlier where the
LONDON STOCK EXCHANGE requires it.
22 REPLACEMENT SHARE CERTIFICATES
22.1 If a SHAREHOLDER has four or more share certificates for SHARES of
the same class which are in CERTIFICATED FORM, he can ask the COMPANY
for these to be cancelled and replaced by a single new certificate. The
COMPANY must comply with this request, without making a charge for
doing so.
22.2 A SHAREHOLDER can ask the COMPANY to cancel and replace a single
share certificate with two or more certificates, for the same total
number of SHARES. The COMPANY, upon the payment
<PAGE>
by the SHAREHOLDER of a reasonable sum determined by the directors,
must comply with this request.
22.3 A SHAREHOLDER can ask the COMPANY for a new certificate if the original
is:
o damaged or defaced; or
o lost, stolen, or destroyed.
22.4 If a certificate has been damaged or defaced, the COMPANY can require
satisfactory evidence and for the certificate to be delivered to it
before issuing a replacement. If a certificate is lost, stolen or
destroyed, the COMPANY can require satisfactory evidence, together with
an indemnity, before issuing a replacement. In each case the directors
can impose such other terms as they think fit.
22.5 The directors can require the SHAREHOLDER to pay the COMPANY'S
exceptional out-of-pocket expenses for issuing any share certificates
under Article 22.3.
22.6 Any one joint SHAREHOLDER can request replacement certificates under
this Article.
CALLS ON SHARES
23 THE DIRECTORS CAN MAKE CALLS ON SHARES
The directors can call on SHAREHOLDERS to pay any money which has not
yet been paid to the COMPANY for their SHARES. This includes both the
nominal value of the SHARES and any premium which may be payable. If
the TERMS OF ISSUE of the SHARES allow this, the directors can:
o make calls as often, and whenever, they think fit;
o decide when and where the money is to be paid;
o decide that the money can be paid by instalments; or
o wholly or partly revoke or postpone any call.
A call is treated as having been made as soon as the directors pass a
resolution authorising it.
24 THE LIABILITY FOR CALLS
24.1 A SHAREHOLDER who has received at least 14 days' notice giving details
of the amount called, the time (or times) and place for payment must
pay the call as required by the notice. Joint SHAREHOLDERS are liable
jointly and severally to pay any money called for in respect of their
SHARES.
24.2 A SHAREHOLDER due to pay the amount called shall still have to pay the
call even if, after the call was made, he transfers the SHARES to which
the call related.
25 INTEREST AND EXPENSES ON UNPAID CALLS
If a call is made and the money due remains unpaid, the SHAREHOLDER is
liable to pay interest on the money and any expenses incurred by the
COMPANY because of his failure to pay the call on time. The interest
will run from the day the money is due until it has actually been paid.
The yearly interest rate will be a reasonable rate fixed by the
directors (or, where they do not
<PAGE>
fix a reasonable rate, 10 per cent). The directors can decide not to
charge any or all of such expenses and interest.
26 SUMS WHICH ARE PAYABLE WHEN A SHARE IS ALLOTTED ARE TREATED AS A CALL
If the TERMS OF A SHARE require any money to be paid at the time the
SHARE is allotted, or at any fixed date (whether in relation to the
nominal value of the SHARES or any premium which may apply), then the
liability to pay the money will be treated in the same way as a
liability for a valid call for money on SHARES which is due on the same
date. If this money is not paid, everything in the ARTICLES relating to
non-payment of calls applies. This includes ARTICLES which allow the
COMPANY to forfeit or sell SHARES and to claim interest.
27 CALLS CAN BE FOR DIFFERENT AMOUNTS
On an issue of SHARES, if the TERMS OF SUCH SHARES allow, the directors
can decide that allottees or the subsequent holders of such SHARES can
be called on to pay different amounts, or that they can be called on at
different times.
28 PAYING CALLS EARLY
28.1 The directors can accept payment in advance of some or all of the money
due from a SHAREHOLDER before he is called on to pay the money. The
directors can agree to pay interest on money paid in advance until it
would otherwise be due to the COMPANY at a rate (up to a maximum yearly
interest rate of 10 per cent) agreed between the directors and the
SHAREHOLDER.
28.2 The money which is paid in advance in this way shall not be included in
calculating the dividend payable on the SHARES in respect of which the
money paid in advance has been paid.
FORFEITING SHARES
29 NOTICE FOLLOWING NON-PAYMENT OF A CALL
Articles 29 to 39 apply if a SHAREHOLDER fails to pay the whole amount
of a call, or an instalment of a call, by the date on which it is due.
The directors can serve a notice on him any time after the date on
which the call or the instalment is due, if the whole amount
immediately due has not been paid.
46 CONTENTS OF THE NOTICE
A notice served under Article 29 must:
o demand payment of the amount immediately payable, plus any
interest;
o give a date by when the total must be paid, but this must be at
least 14 days after the notice is served on the SHAREHOLDER;
o state where the payment(s) must be made; and
o state that if the full amount demanded is not paid by the time
and place stated, the COMPANY can forfeit the SHARES on which the
call or instalment was due.
<PAGE>
31 FORFEITURE IF THE NOTICE IS NOT COMPLIED WITH
If a notice served under Article 29 is not complied with, the SHARES to
which it relates can be forfeited at any time while any amount
(including interest) is still outstanding. This is done by the
directors passing a resolution stating that the SHARES have been
forfeited.
32 FORFEITURE WILL INCLUDE UNPAID DIVIDENDS
All dividends which are due on (and other money payable in respect of)
the forfeited SHARES, but not yet paid, will also be forfeited.
33 DEALING WITH FORFEITED SHARES
33.1 The directors can sell, dispose of or re-allot any forfeited SHARE on
any terms and in any way that they decide. The COMPANY may keep the
consideration received from doing this. The directors can, if
necessary, authorise any person to transfer a forfeited SHARE to any
other person and may cause such other person to be registered as the
holder of the SHARE.
33.2 The new SHAREHOLDER'S ownership of the SHARE will not be affected if
the steps taken to forfeit the SHARE, or the sale or disposal of the
SHARE, were invalid or irregular, or if anything that should have been
done was not done, and the new SHAREHOLDER is not obliged to enquire as
to how the purchase money (if any) is used.
34 CANCELLING FORFEITURE
34.1 After a SHARE has been forfeited, the directors can cancel the
forfeiture. But they can only do this before the SHARE has been sold,
re-allotted or disposed of. This can be on any terms that they decide.
34.2 If a SHARE has not been sold or disposed of after three years from the
date of forfeiture, the directors must cancel the SHARE.
35 THE POSITION OF SHAREHOLDERS AFTER FORFEITURE
35.1 A SHAREHOLDER loses all rights in connection with forfeited SHARES. If
the SHARES are in CERTIFICATED FORM, he must surrender any certificate
for those SHARES to the COMPANY for cancellation. A person is still
liable to pay calls which have been made, but not paid, before the
forfeiture of his SHARES. He must also pay interest on the unpaid
amount (at the rate of interest which was payable on the unpaid amount
before the forfeiture) until it is paid. If no interest was payable
before the forfeiture on the unpaid amount, the directors can fix the
rate of interest on the unpaid amount, but it must not be more than 10
per cent a year, until it is paid.
35.2 The SHAREHOLDER continues to be liable for all claims and demands which
the COMPANY could have made relating to the forfeited SHARE. He is not
entitled to any credit for the value of the SHARE when it was forfeited
or for money received by the COMPANY under Article 33, unless the
directors decide to allow credit for all or any of that value. The
directors may also decide to waive any payment due either completely or
in part.
LIENS ON PARTLY PAID SHARES
36 THE COMPANY'S LIEN ON SHARES
The COMPANY has a lien on all partly-paid SHARES. This lien has
priority over claims of others to the SHARES and extends to all
dividends and other money payable on the SHARES or in respect of them.
This lien is for any money owed to the COMPANY for the SHARES. The
<PAGE>
directors can decide to give up any lien which has arisen or that any
SHARE for a specified period of time be entirely or partly exempt from
this Article. They can also decide to suspend any lien which would
otherwise apply to particular SHARES. Unless otherwise agreed, the
registration of a transfer of any SHARE over which the COMPANY has a
lien shall operate as a waiver of that lien.
37 ENFORCING THE LIEN BY SELLING THE SHARES
37.1 If the directors want to enforce the lien referred to in Article 36,
they can sell some or all of the SHARES in any way they decide. The
directors can authorise someone to transfer the SHARES sold. But they
cannot sell the SHARES until all of the following conditions are met:
o the money owed by the SHAREHOLDER must be immediately payable;
o the directors must have given a written notice to the
SHAREHOLDER. This notice must say how much is due. It must also
demand that this money is paid, and say that the SHAREHOLDER'S
SHARES can be sold if the money is not paid;
o the written notice must have been served on the SHAREHOLDER, or
on any person who is automatically entitled to the SHARES by law;
and
o the money has not been paid by at least 14 days after the notice
has been served.
37.2 The new SHAREHOLDER'S ownership of the SHARE will not be affected if
the sale or disposal of the SHARE was invalid or irregular, or if
anything that should have been done was not done and is not obliged to
enquire as to how the purchase money (if any) is used.
38 USING THE PROCEEDS OF THE SALE
If the directors sell any SHARES under Article 37, the net proceeds
will first be used to pay off the amount which is then payable to the
COMPANY. The directors will pay any money left over to the former
SHAREHOLDER, or to any person who would otherwise be automatically
entitled to the SHARES by law provided that the COMPANY'S lien will
also apply to any money left over, to cover any money still due to the
COMPANY which is not yet payable: the COMPANY has the same rights over
this money as it had over the SHARES immediately before they were sold.
If the SHARES are in CERTIFICATED FORM, the COMPANY need not pay over
anything left under this Article until the certificate representing the
SHARES sold has been delivered to the COMPANY for cancellation.
39 EVIDENCE OF FORFEITURE OR ENFORCEMENT OF LIEN
A director, or the SECRETARY, can make a statutory declaration
declaring:
o that he is a director or the SECRETARY of the COMPANY;
o that a SHARE has been properly forfeited or sold to satisfy a
lien under the ARTICLES; and
o when the SHARE was forfeited or sold.
This will be conclusive evidence of these facts which cannot be
disputed as against all persons claiming to be entitled to the SHARE.
<PAGE>
CHANGING SHARE RIGHTS
40 CHANGING THE SPECIAL RIGHTS OF SHARES
40.1 If the COMPANY'S share capital is split into different classes of
SHARE, and if the COMPANIES ACTS allow this and unless the ARTICLES or
RIGHTS attached to any class of SHARE say otherwise, the special rights
which are attached to any of these classes of SHARE can be varied or
abrogated if this is approved by an extraordinary resolution in
accordance with Articles 40 and 41. This must be passed at a separate
meeting of the holders of the relevant class of SHARES. This is called
a CLASS MEETING. Alternatively, the holders of at least three-quarters
of the existing SHARES of the relevant class (by nominal value) can
give their consent in writing.
40.2 The special rights of a class of SHARES can be varied or abrogated
while the COMPANY is a going concern, or while the COMPANY is being
wound up, or if winding up is being considered.
40.3 All the ARTICLES relating to General Meetings apply, with any necessary
changes, to a CLASS MEETING, but with the following adjustments:
o At least two people who hold (or who act as proxies for) at least
one third of the total nominal value of the existing SHARES of
the class are a quorum. However, if this quorum is not present at
an adjourned CLASS MEETING, one person who holds SHARES of the
class, or his proxy, is a quorum, regardless of the number of
SHARES he holds.
o Anybody who is personally present, or who is represented by a
proxy, can demand a poll.
o On a poll, the holders of SHARES will have one vote for every
SHARE of the class which they hold.
40.4 This Article also applies to the variation or abrogation of special
rights of SHARES forming part of a class. Each part of the class which
is being treated differently is viewed as a separate class in operating
this Article.
41 MORE ABOUT THE SPECIAL RIGHTS OF SHARES
The special rights of SHARES or of any class of SHARES are not regarded
as varied or abrogated if:
o new SHARES are created, or issued, which rank equally with or
behind those SHARES or that class of SHARES in sharing in profits
or assets of the COMPANY;
o the COMPANY buys back its own SHARES.
But this does not apply if the terms of the SHARES or class of SHARES
expressly provide otherwise.
TRANSFERRING SHARES
42 SHARE TRANSFERS
42.1 Unless the ARTICLES provide otherwise, any SHAREHOLDER can transfer
some or all of his SHARES to another person.
42.2 Every transfer of SHARES in CERTIFICATED FORM must be in writing, and
either in the usual standard form, or in any other form approved by the
directors.
<PAGE>
42.3 Transfers of UNCERTIFICATED SHARES are to be carried out using a
RELEVANT SYSTEM and must comply with the CREST REGULATIONS.
43 MORE ABOUT TRANSFERS OF SHARES IN CERTIFICATED FORM
43.1 The transfer form for SHARES in CERTIFICATED FORM must be delivered to
the TRANSFER OFFICE (or any other place the directors may decide). The
directors may refuse to recognise a transfer unless the transfer form:
o has with it the share certificate for the SHARES to be
transferred and any other evidence which the directors ask for to
prove that the person wishing to make the transfer is entitled to
do this;
o is properly stamped (for payment of stamp duty) where this is
required;
o is being used to transfer only one class of SHARES; and
o is in favour of not more than four joint holders.
43.2 However, if a transfer is by a RECOGNISED CLEARING HOUSE or its nominee
or by a RECOGNISED INVESTMENT EXCHANGE, a share certificate is only
needed if a certificate has been issued for the SHARES in question.
43.3 If the SHARE being transferred is a fully PAID-UP SHARE, a share
transfer form must be signed by the person making the transfer. If the
transfer is being made by a company, the share transfer form does not
need to be under that COMPANY'S seal.
43.4 If the SHARE being transferred is not a fully PAID-UP SHARE a share
transfer form must also be signed by the person to whom the SHARE is
being transferred. If the transfer is being made to a COMPANY, the
transfer form does not need to be under that COMPANY'S seal.
43.5 The person making a transfer of SHARES will be treated as continuing to
be the SHAREHOLDER until the name of the person to whom a SHARE is
being transferred is put on the REGISTER for that SHARE.
43.6 No fee is payable to the COMPANY for transferring SHARES or registering
changes relating to the ownership of SHARES.
44 THE COMPANY CAN REFUSE TO REGISTER CERTAIN TRANSFERS
44.1 The directors can refuse to register a transfer of any SHARES in
CERTIFICATED FORM which are not fully PAID-UP. They do not have to give
any reasons for refusing. But, if any of those SHARES are listed on the
LONDON STOCK EXCHANGE, the directors cannot refuse to register a
transfer if this would stop dealings in the SHARES from taking place on
an open and proper basis.
44.2 If the directors decide not to REGISTER a transfer of a SHARE, they
must notify the person to whom such SHARE was to be transferred. This
must be done no later than two months after the COMPANY receives the
transfer (in the case of a SHARE in CERTIFICATED FORM).
45 CLOSING THE REGISTER
The directors can decide to suspend the registration of transfers by
closing the REGISTER. This can be for part of a day, a day, or more
than a day. Suspension periods can vary between different classes of
SHARES. But the REGISTER cannot be closed for more than 30 days a year.
<PAGE>
In the case of SHARES in UNCERTIFICATED FORM, the REGISTER must not be
closed without the consent of the OPERATOR of a RELEVANT SYSTEM.
46 OVERSEAS BRANCH REGISTERS
The COMPANY can use all the powers that the COMPANIES ACTS give to keep
an overseas branch register. The directors can make and change any
regulations they decide on relating to this register, as long as the
COMPANIES ACTS allow this.
PERSONS AUTOMATICALLY ENTITLED TO SHARES BY LAW
47 WHEN A SHAREHOLDER DIES
47.1 When a sole SHAREHOLDER dies (or a SHAREHOLDER who is the last survivor
of joint SHAREHOLDERS dies), his legal personal representatives will be
the only people whom the COMPANY will recognise as being entitled to
his SHARES.
47.2 If a SHAREHOLDER who is a joint SHAREHOLDER dies, the remaining joint
SHAREHOLDER or SHAREHOLDERs will be the only people who the COMPANY
will recognise as being entitled to his SHARES.
47.3 This Article does not discharge the estate of any joint SHAREHOLDER
from any liability.
48 REGISTERING PERSONAL REPRESENTATIVES
A person who becomes automatically entitled to a SHARE by law can
either be registered as the SHAREHOLDER, or can select some other
person to whom the SHARE is to be transferred. The person who is
automatically entitled by law must provide any evidence of his
entitlement which is reasonably required by the directors.
49 A PERSON WHO WANTS TO BE REGISTERED MUST GIVE NOTICE
If a person who is automatically entitled to SHARES by law wants to be
registered as a SHAREHOLDER, he must deliver or send a notice to the
COMPANY saying that he has made this decision. He must sign this
notice, and it must be in the form which the directors require. This
notice will be treated as a transfer form and all of the provisions of
these ARTICLES about registering transfers of SHARES apply to it. The
directors have the same power to refuse to register the automatically
entitled person as they would have had in deciding whether to register
a transfer by the person who was previously entitled to the SHARES.
50 HAVING ANOTHER PERSON REGISTERED
If a person who is automatically entitled to a SHARE by law wants the
SHARE to be transferred to another person, he must do the following:
o for a SHARE in CERTIFICATED FORM sign a transfer form to the
person he has selected; and
o for a SHARE in UNCERTIFICATED FORM transfer such SHARE using a
RELEVANT SYSTEM.
The directors have the same power to refuse to register the person
selected as they would have had in deciding whether to register a
transfer by the person who was previously entitled to the SHARES.
<PAGE>
51 THE RIGHTS OF PEOPLE AUTOMATICALLY ENTITLED TO SHARES BY LAW
51.1 A person who is automatically entitled to a SHARE by law is entitled to
any dividends or other money relating to the SHARE, even though he is
not registered as the holder of that SHARE. However, if the directors
have served a notice on any such person requesting him to choose
between registering himself or transferring the SHARE, and such person
does not comply with the notice within 90 days, the directors can
withhold the dividend and other money until the notice has been
properly complied with.
51.2 Unless and until he is registered as a SHAREHOLDER the person
automatically entitled to a SHARE by law is not entitled:
o to receive notices of General Meetings, or to attend or vote at
these meetings; and
o (subject to Article 51.1) to any of the other rights and benefits
of being a SHAREHOLDER,
unless the directors decide to allow this.
SHAREHOLDERS WHO CANNOT BE TRACED
52 SHAREHOLDER WHO CANNOT BE TRACED
52.1 The COMPANY can sell any SHARES at the best price reasonably obtainable
if:
o during the previous 12 years, at least three dividends on the
SHARES have been payable and none has been claimed;
o after this 12-year period, the COMPANY announces that it intends
to sell the SHARES by placing an advertisement in a UNITED
KINGDOM national newspaper and in a newspaper appearing in the
area which includes the address held by the COMPANY for serving
notices relating to the SHARES;
o during this 12-year period, and for three months after the last
advertisement appears in the newspapers, the COMPANY has received
no indication as to the whereabouts or existence of the
SHAREHOLDER or any person who is automatically entitled to the
SHARES by law; and
o where the SHARES are listed on the LONDON STOCK EXCHANGE, the
COMPANY has notified the LONDON STOCK EXCHANGE that it intends to
sell the SHARES.
52.2 To sell any SHARES in this way, the COMPANY can authorise any person to
transfer the SHARES. This transfer will be just as effective as if it
had been made by the registered holder of the SHARES, or by a person
who is automatically entitled to the SHARES by law. The ownership of
the person to whom the SHARES are transferred will not be affected even
if the sale is irregular or invalid in any way.
52.3 The net sale proceeds belong to the COMPANY until claimed under this
Article, but it must pay these to the SHAREHOLDER who could not be
traced, or to the person who is automatically entitled to the SHARES by
law, if that SHAREHOLDER, or that other person, asks for it.
52.4 The COMPANY must record the name of that SHAREHOLDER, or the person who
was automatically entitled to the SHARES by law, as a creditor for this
money in its accounts. The money is not held on trust, and no interest
is payable on the money. The COMPANY can keep any money which it has
earned on the net sale proceeds. The COMPANY can use the money for its
business, or it can invest the money in any way that the directors
decide. But the money
<PAGE>
cannot be invested in the COMPANY'S SHARES, or in the SHARES of any
holding company of the COMPANY.
52.5 In the case of UNCERTIFICATED SHARES, this Article is subject to any
restrictions which apply under the CREST REGULATIONS.
GENERAL MEETINGS
53 THE ANNUAL GENERAL MEETING
Except as provided in the COMPANIES ACTS, each year the COMPANY must
hold an Annual General Meeting, in addition to any other General
Meetings which are held in the year. The notice calling the Annual
General Meeting must say that the meeting is the Annual General
Meeting. There must not be a gap of more than 15 months between one
Annual General Meeting and the next. The Annual General Meeting must be
held in accordance with the COMPANIES ACTS. The directors must decide
when and where to hold the Annual General Meeting.
54 EXTRAORDINARY GENERAL MEETINGS
If a General Meeting is not an Annual General Meeting, it is called an
Extraordinary General Meeting.
55 CALLING AN EXTRAORDINARY GENERAL MEETING
The directors can decide to call an Extraordinary General Meeting at
any time. Extraordinary General Meetings must also be called promptly
in response to a requisition by SHAREHOLDERs under the COMPANIES ACTS.
If an Extraordinary General Meeting is not called in response to such a
request by SHAREHOLDERs, it can be called by the SHAREHOLDERS who
requested the Extraordinary General Meeting in accordance with the
COMPANIES ACTS. Any Extraordinary General Meeting requisitioned in this
way by SHAREHOLDERS shall be called in the same manner as nearly as
possible to that in which General Meetings are called by the directors.
The directors must decide when and where to hold an Extraordinary
General Meeting.
56 NOTICE OF GENERAL MEETINGS
56.1 At least 21 clear days' notice in writing (or, where the
COMPANIES ACTS permit, by ELECTRONIC MAIL) must be given for every
Annual General Meeting and for any other General Meeting where it is
proposed to pass a special resolution or to pass some other resolution
of which special notice under the COMPANIES ACTS has been given to the
COMPANY. For every other General Meeting at least 14 clear days' notice
in writing (or, where the COMPANIES ACTS permit, by ELECTRONIC MAIL)
must be given.
However, a shorter period of notice can be given:
o for an Annual General Meeting, if all the SHAREHOLDERs entitled
to attend and vote agree; or
o for an Extraordinary General Meeting, if a majority of the
SHAREHOLDERS entitled to attend and vote agree and those
SHAREHOLDERS hold at least 95 per cent by nominal value of the
SHARES which can be voted at the meeting.
56.2 Any notice of General Meeting must state:
<PAGE>
o where the General Meeting is to be held;
o the date and time of the General Meeting;
o the general nature of the business of the General Meeting;
o if any resolution will be proposed as a special resolution or
extraordinary resolution; and
o in a reasonably prominent place that a SHAREHOLDER entitled to
attend and vote can appoint one or more proxies (who need not be
SHAREHOLDERs) to attend, speak and vote instead of that
SHAREHOLDER.
56.3 Notices of General Meetings must be given to the SHAREHOLDERS, except
in cases where the ARTICLES or the RIGHTS attached to the SHARES state
that the holders are not entitled to receive them from the COMPANY.
Notice must also be given to the COMPANY'S auditors. The day when the
notice is served (see Article 144), or is treated as served, and the
day of the General Meeting do not count towards the period of notice.
In relation to any class of SHARES some of which are in UNCERTIFICATED
FORM the COMPANY can decide that only people who are entered on the
REGISTER at the close of business on a particular day are entitled to
receive such a notice. That day shall be a day chosen by the COMPANY
and falling not more than 21 days before the notice is sent.
56.4 Unless the COMPANIES ACT 1985 does not require it, the COMPANY must, on
the requisition in writing of such number of SHAREHOLDERs as is
specified in the COMPANIES ACT 1985, send to SHAREHOLDERS:
o entitled to receive notice of the next Annual General Meeting
notice of any resolution which may properly be proposed and is
intended to be proposed at that meeting; and
o entitled to receive notice of any General Meeting any statement
of not more than one thousand words with respect to the matter
referred to in any proposed resolution or the business to be
dealt with at that meeting.
Notice of any such resolution shall be given, and any such statement
shall be circulated, to SHAREHOLDERS of the COMPANY entitled to have
notice of the General Meeting sent to them. The cost of this, unless
the COMPANY decides otherwise, must be borne by the requisitionists.
PROCEEDINGS AT GENERAL MEETINGS
57 THE CHAIRMAN OF A GENERAL MEETING
57.1 The Chairman of the directors will be the chairman at every General
Meeting, if he is present and willing to take the chair.
57.2 If the COMPANY does not have a Chairman, or if the Chairman is not
present and willing to chair the General Meeting, a Deputy Chairman
will chair the meeting if he is present and willing to take the chair.
57.3 Where there is more than one Deputy Chairman at a General Meeting and
there is more than one present, and the Chairman is not there, the
Deputy Chairman to take the chair will be the longest serving Deputy
Chairman present.
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57.4 If the COMPANY does not have a Chairman or a Deputy Chairman, or if
neither the Chairman or any Deputy Chairman are present and willing to
chair the General Meeting, after waiting ten minutes from the time that
a meeting is due to start, the directors who are present will choose
one of themselves to act as chairman. If there is only one director
present, he will be chairman if he is willing.
57.5 If there is no director present and willing to be chairman, then the
SHAREHOLDERS who are personally present at the General Meeting and
entitled to vote will decide which one of them is to be chairman.
57.6 To avoid any doubt, nothing in these ARTICLES restricts or excludes any
of the powers or rights of a chairman of a meeting which are given by
the general law.
58 SECURITY, AND OTHER ARRANGEMENTS AT GENERAL MEETINGS
Either the chairman of a General Meeting, or the SECRETARY, can take
any action he considers necessary for:
o the safety of people attending a General Meeting; or
o proper and orderly conduct at a General Meeting.
59 OVERFLOW MEETING ROOMS
The directors can arrange for any people who they consider cannot be
seated in the main meeting room, where the chairman will be, to attend
and take part in a General Meeting in an overflow room or rooms. Any
overflow room must have a live video and two way sound link with the
main room for the General Meeting, where the chairman will be. The
video and sound link must enable those in all the rooms to see and hear
what is going on in the other rooms. The notice of the General Meeting
does not have to give details of any arrangements under this Article.
The directors can decide on how to divide people between the main room
and any overflow room. If any overflow room is used, the General
Meeting will be treated as being held, and taking place, in the main
room.
60 THE QUORUM NEEDED FOR GENERAL MEETINGS
Before a General Meeting starts to conduct business, there must be a
quorum present. If there is not, the meeting cannot carry out any
business. Unless other Articles say otherwise, a quorum for all
purposes is two people who are entitled to vote. They can be personally
present or proxies for SHAREHOLDERS or duly authorised COMPANY
representatives or a combination of SHAREHOLDERS, duly authorised
COMPANY REPRESENTATIVES for COMPANIES and proxies.
61 THE PROCEDURE IF THERE IS NO QUORUM
61.1 This Article 61 applies if a quorum is not present either within 30
minutes of the time fixed for a General Meeting to start or within any
longer period (being no longer than an hour from the time fixed for the
General Meeting to start) on which the chairman may decide. If the
General Meeting was called by SHAREHOLDERS it is cancelled. Any other
General Meeting is adjourned to the same day in the next week (or if
that day is a public holiday, then the next day which is not a
Saturday, Sunday or public holiday) at the same time and place or to
any other day and time and place which the directors decide.
61.2 If a quorum is not present within 15 minutes of the time fixed for the
start of the adjourned meeting, the adjourned General Meeting shall be
cancelled.
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62 ADJOURNING MEETINGS
62.1 The chairman of a General Meeting can adjourn a meeting which has a
quorum present, if this is agreed by those present at the General
Meeting. This can be to a time, date and place proposed by the chairman
or may be an indefinite adjournment. The chairman must adjourn the
General Meeting if the General Meeting directs him to. In these
circumstances the General Meeting will decide how long the adjournment
will be, and where it will adjourn to. If a General Meeting is
adjourned indefinitely, the directors will fix the time, date and place
of the adjourned General Meeting.
62.2 General Meetings can be adjourned more than once. But if a General
Meeting is adjourned for more than 30 days or indefinitely, at least
seven days' notice must be given of the adjourned General Meeting in
the same way as was required for the original General Meeting. If a
General Meeting is adjourned for less than 30 days, there is no need to
give notice of the adjourned General Meeting, or about the business to
be considered there.
62.3 An adjourned General Meeting can only deal with business that could
have been dealt with at the original General Meeting before it was
adjourned.
63 AMENDING RESOLUTIONS
If the chairman of a General Meeting, acting in good faith, rules an
amendment to a resolution out of order, any error in that ruling will
not affect the validity of a vote on the original resolution.
VOTING PROCEDURES
64 HOW VOTES ARE TAKEN
64.1 If an ordinary resolution or any question is put to the vote at a
General Meeting, it will be decided by a show of hands of the
SHAREHOLDERS present in person or by proxy, unless a poll is demanded
when, or before, the result of the show of hands is declared by the
chairman. A poll can be demanded by:
o the chairman of the General Meeting;
o at least two SHAREHOLDERS at the General Meeting (including
proxies of SHAREHOLDERS entitled to vote) who are entitled to
vote;
o one or more SHAREHOLDERS at the General Meeting who are entitled
to vote (including proxies of SHAREHOLDERS entitled to vote) and
who have, between them, at least 10 per cent of the total votes
of all SHAREHOLDERS who have the right to vote at the General
Meeting; or
o one or more SHAREHOLDERS who have SHARES which allow them to vote
at the General Meeting (including proxies of SHAREHOLDERS
entitled to vote), where the total amount which has been PAID UP
on their SHARES is at least 10 per cent of the total sum paid up
on all SHARES which give the right to vote at the General
Meeting.
64.2 All special resolutions and extraordinary resolutions shall only be
decided on a poll.
64.3 A demand for a poll can be withdrawn if the chairman agrees to this. If
a poll is demanded, and this demand is then withdrawn, any declaration
by the chairman of the result of a vote on that resolution by a show of
hands, which was made before the poll was demanded, will stand.
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65 HOW A POLL IS TAKEN
65.1 If a poll is demanded or held in the way allowed by the ARTICLES, the
chairman of the General Meeting can decide where, when and how it will
be carried out. The result is treated as the decision of the General
Meeting where the poll was demanded, even if the poll is carried out
after the General Meeting.
65.2 The chairman can:
o decide that a ballot, voting papers or tickets will be used;
o appoint one or more scrutineers (who need not be SHAREHOLDERS);
o decide to adjourn the General Meeting to such day, time and place
as he decides for the result of the poll to be declared.
65.3 If a poll is called, a SHAREHOLDER can vote either personally or by his
proxy. If a SHAREHOLDER votes on a poll, he does not have to use all of
his votes or cast all his votes in the same way.
66 WHERE THERE CANNOT BE A POLL
Notwithstanding any other provision in these ARTICLES, a poll is not
allowed on a vote to elect a chairman of a General Meeting, nor is a
poll allowed on a vote to adjourn a General Meeting, unless the
chairman of the General Meeting demands a poll.
67 A GENERAL MEETING CONTINUES AFTER A POLL IS DEMANDED
A demand for a poll on a particular matter does not stop a General
Meeting from continuing and dealing with matters other than the
question on which the poll was demanded.
68 TIMING OF A POLL
A poll on a resolution to adjourn the General Meeting must be taken
immediately at the General Meeting. Any other poll can either be taken
immediately at the General Meeting or within 30 days from the date it
was demanded and at a time and place decided on by the chairman. No
notice is required for a poll which is not taken immediately if the
time and place at which it is to be taken are announced at the General
Meeting at which it is demanded. In any other case, at least seven
clear days' notice must be given specifying the time and place at which
the poll is to be taken.
69 THE CHAIRMAN'S CASTING VOTE
If the votes are equal, either on a show of hands or on a poll, the
chairman of the General Meeting is entitled to a further, casting vote.
This is in addition to any other votes which the chairman may have as a
SHAREHOLDER, or as a proxy.
70 THE EFFECT OF A DECLARATION BY THE CHAIRMAN
The following applies when there is a vote by a show of hands, and no
poll is demanded, or any demand for a poll is withdrawn. A
corresponding entry in the minute book is conclusive proof of the
following declarations by the chairman of the General Meeting:
o a resolution has been carried;
o a resolution has been carried unanimously;
o a resolution has been carried by a particular majority;
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o a resolution has been lost; or
o a resolution has been lost by a particular majority.
There is no need to prove the validity, number, or proportion of votes
recorded for or against a resolution.
VOTING RIGHTS
71 THE VOTES OF SHAREHOLDERS
At a General Meeting, on a show of hands every SHAREHOLDER who is
present in person and every person present who has been duly appointed
as a proxy shall have one vote, provided that each such person is
entitled to attend and vote at that General Meeting. Where there is a
poll, a SHAREHOLDER who is present in person (or by proxy) who is
entitled to be present and to vote has one vote for every SHARE which
he holds. This is subject to any special rights or restrictions which
are given to any class of SHARES by, or in accordance with, the
ARTICLES.
72 SHAREHOLDERS WHO OWE MONEY TO THE COMPANY
Unless the ARTICLES provide otherwise, the only people who are entitled
to attend and/or vote at General Meetings or to exercise any other
right conferred by being a SHAREHOLDER in relation to General Meetings,
are SHAREHOLDERS who have paid the COMPANY all calls, and all other
sums, relating to their SHARES which are due at the time of the General
Meeting. This applies both to attending the General Meeting personally
and to appointing a proxy.
73 SUSPENSION OF RIGHTS ON NON-DISCLOSURE OF INTEREST
73.1 This Article applies if any SHAREHOLDER, or any person appearing to be
interested in SHARES held by that SHAREHOLDER, has been properly served
with a notice under Section 212 of the COMPANIES ACT 1985, requiring
information about interests in SHARES, and has failed for a period of
14 days from the date of the notice to supply to the COMPANY the
information required by that notice. Then (subject to the provisions of
this Article and unless the directors otherwise decide) the SHAREHOLDER
is not (for so long as the failure continues) entitled to attend or
vote either personally or by proxy at a SHAREHOLDERS' MEETING or to
exercise any other right in relation to a SHAREHOLDERS' MEETING as
holder of:
o the SHARES in relation to which the default occurred (called
DEFAULT SHARES);
o any further SHARES which are issued in respect of DEFAULT SHARES;
and
o any other SHARES held by the SHAREHOLDER holding the DEFAULT
SHARES.
73.2 Any person who acquires SHARES subject to restrictions under Article
73.1 is subject to the same restrictions, unless:
o the transfer was an APPROVED TRANSFER (see Article 73.9); or
o the transfer was by a SHAREHOLDER who was not himself in default
in supplying the information required by the notice under Article
73.1 and a certificate in accordance with Article 73.3 is
provided.
73.3 Where the default SHARES represent 0.25 per cent or more of the
existing SHARES of a class, the directors can in their absolute
discretion by notice (a DIRECTION NOTICE) to the SHAREHOLDER direct
that:
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o any dividend or part of a dividend or other money which would
otherwise be payable on the DEFAULT SHARES shall be retained by
the COMPANY (without any liability to pay interest when that
dividend or money is finally paid to the SHAREHOLDER);
o the SHAREHOLDER will not be allowed to choose to receive SHARES
in place of dividends in accordance with Article 135; and/or
o subject to Article 73.4, no transfer of any of the SHARES held by
the SHAREHOLDER will be registered unless:
o either the transfer is an APPROVED TRANSFER (see Article
73.9);
o or the SHAREHOLDER is not himself in default as regards
supplying the information required; and (in this case)
o the transfer is of part only of his holding; and
o when presented for registration, the transfer is
accompanied by a certificate by the SHAREHOLDER. This
certificate must be in a form satisfactory to the
directors and state that after due and careful enquiry
the SHAREHOLDER is satisfied that none of the SHARES
included in the transfer are DEFAULT SHARES.
73.4 Any direction notice can treat SHARES of a SHAREHOLDER in CERTIFICATED
and UNCERTIFICATED FORM as separate shareholdings and either apply only
to SHARES in CERTIFICATED FORM or to SHARES in UNCERTIFICATED FORM or
apply differently to SHARES in CERTIFICATED and UNCERTIFICATED FORM. In
the case of SHARES in UNCERTIFICATED FORM the directors can only use
their discretion to prevent a transfer if this is allowed by the CREST
REGULATIONS.
73.5 The COMPANY must send a copy of the DIRECTION NOTICE to each other
person who appears to be interested in the SHARES covered by the
notice, but if it fails to do so, this does not invalidate the
DIRECTION NOTICE.
73.6 A DIRECTION NOTICE has the effect which it states while the default
resulting in the notice continues. It then ceases to apply when the
directors decide (which they must do within one week of the default
being cured). The COMPANY must give the SHAREHOLDER immediate written
notice of the directors' decision.
73.7 A DIRECTION NOTICE also ceases to apply to any SHARES which are
transferred by a SHAREHOLDER in a transfer permitted under Article 73.3
even where a DIRECTION NOTICE restricts transfers.
73.8 For the purposes of this Article a person is treated as appearing to be
interested in any SHARES if the SHAREHOLDER holding those SHARES has
been served with a notice under Section 212 of the COMPANIES ACT 1985
and:
o the SHAREHOLDER has named that person as being so interested; or
o (after taking into account the response of the SHAREHOLDER to the
notice and any other relevant information) the COMPANY knows or
reasonably believes that the person in question is or may be
interested in the SHARES.
73.9 For the purposes of this Article a transfer of SHARES is an APPROVED
TRANSFER if:
o it is a transfer of SHARES to an offeror under an acceptance of a
TAKEOVER OFFER; or
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o the directors are satisfied that the transfer is made in
connection with a sale in good faith of the whole of the
beneficial ownership of the SHARES to a person unconnected with
the SHAREHOLDER or with any person appearing to be interested in
the SHARES. This includes such a sale made through the LONDON
STOCK EXCHANGE or any other stock exchange outside the UNITED
KINGDOM on which the COMPANY'S SHARES are normally traded. For
this purpose any associate (as that word is defined in Section
435 of the Insolvency Act 1986) is included amongst the people
who are connected with the SHAREHOLDER or any person appearing to
be interested in the SHARES.
73.10 Where a person who has an interest in AMERICAN DEPOSITARY SHARES
receives a notice under this Article 73, that person is considered for
the purposes of this Article 73 to have an interest in the number of
SHARES represented by those AMERICAN DEPOSITARY SHARES which is
specified in the notice and not in the remainder of the SHARES held by
the ADR DEPOSITARY.
73.11 Where the ADR DEPOSITARY receives a notice under this Article 73, the
ADR DEPOSITARY shall only be required to supply information relating to
any person who has an interest in the SHARES held by the ADR DEPOSITARY
which has been recorded by the ADR DEPOSITARY under the arrangements
made with the COMPANY (including in the PROXY REGISTER maintained under
Article 163) when it was appointed as the ADR DEPOSITARY.
73.12 This Article does not restrict in any way the provisions of the
COMPANIES ACT which apply to failures to comply with notices under
Section 212 of that Act.
74 VOTES OF SHAREHOLDERS WHO ARE OF UNSOUND MIND
74.1 This Article 74 applies where a court which claims jurisdiction to
protect people who are unable to manage their own affairs has made an
order detaining a shareholder or appointing a person to manage his
property or affairs.
74.2 The receiver or other person appointed by the court order to act for
the SHAREHOLDER can vote for the SHAREHOLDER on a show of hands or on a
poll at General Meetings. However, this Article only applies if the
receiver or other person appointed by the court delivers to the
TRANSFER OFFICE (or the place stated in the notice for the delivery of
the proxy form) at least 48 hours before the relevant General Meeting
(or adjourned General Meeting) such evidence as the directors may
require of such person's authority to act.
74.3 If the receiver or other person appointed by the court fails to deliver
the appropriate evidence to the TRANSFER OFFICE (or the place stated in
the proxy form) in accordance with Article 74.2, the right to vote
shall not be exercisable.
75 THE VOTES OF JOINT HOLDERS
Where a SHARE is held by joint SHAREHOLDERs any one joint SHAREHOLDER
can vote at any General Meeting (either personally or by proxy) in
respect of such SHARE as if he were the only SHAREHOLDER. If more than
one of the joint SHAREHOLDERS votes (either personally or by proxy),
the only vote which will count is the vote of that one of them who is
listed first on the REGISTER for the SHARE.
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PROXIES
76 APPOINTMENT OF PROXIES
76.1 Any SHAREHOLDER may appoint another person, who need not be another
SHAREHOLDER, as his proxy to act at a General Meeting on his behalf.
76.2 Proxies may also be appointed to act at General Meetings in the
circumstances, and in the manner, provided for in Articles 158.2, 162,
164, 165 and 168, and Articles 76 to 80 should be read subject to their
terms.
76.3 A SHAREHOLDER can appoint more than one proxy to attend on the same
occasion.
77 COMPLETING PROXY FORMS
77.1 A proxy form:
o must be in writing; and
o can be in any form which is commonly used, or in any other form
which the directors approve.
77.2 A proxy form given by:
o an individual must be signed by the SHAREHOLDER appointing the
proxy, or by an agent who has been properly appointed in writing;
or
o a COMPANY must be sealed with the COMPANY'S seal or signed by an
officer who is authorised to act on behalf of the COMPANY.
Unless the contrary is shown, the directors are entitled to assume that
where a proxy form purports to have been signed by an officer on behalf
of a COMPANY that such officer was duly authorised by such COMPANY
without requiring any further evidence. Signatures need not be
witnessed.
77.3 All notices convening General Meetings which are sent to SHAREHOLDERS
entitled to vote at the General Meeting, must, at the expense of the
COMPANY, be accompanied by a proxy form. The proxy form must make
provision for two-way voting on all resolutions intended to be
proposed, other than resolutions which are merely procedural.
77.4 The accidental omission to send out a proxy form to a SHAREHOLDER
entitled to it (or non receipt by him of the proxy form) will not
invalidate any resolution passed or proceedings at the General Meeting
to which the proxy form relates.
78 DELIVERING PROXY FORMS
78.1 A proxy form must be delivered to the place stated in the notice of the
General Meeting, or in the proxy form, or, if no place is stated, to
the TRANSFER OFFICE or, if the directors decide to accept proxies by
ELECTRONIC MAIL, in the way that they specify. It must be delivered at
least:
o 48 hours before a General Meeting, an adjourned General Meeting
or a poll taken on the same day as the meeting; or
o 24 hours before a poll is taken, if the poll is not taken on the
same day as the General Meeting or adjourned General Meeting.
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78.2 To the extent that the COMPANIES ACTS permit, directors can decide to
accept proxies delivered by ELECTRONIC MAIL, subject to any
limitations, restrictions or conditions they decide to apply and
Articles 77.1 and 77.2 may be disapplied in relation to a proxy form
delivered in this way.
78.3 If a proxy form is signed by an agent, the power of attorney or other
authority relied on to sign it, or a copy which has been certified by a
notary, or certified in some other way specified by the directors, must
(if required by the COMPANY) be delivered with the proxy form in
accordance with the instructions for delivery of proxy forms which are
set out in the notice of General Meeting or on the proxy form, unless
the power of attorney or other form of authority has already been
registered with the COMPANY.
78.4 If this Article 78 is not complied with, the proxy will not be able to
act for the person who appointed him.
78.5 If a proxy form which relates to several General Meetings has been
properly delivered for one General Meeting or adjourned General
Meeting, it does not need to be delivered again for any later General
Meeting which the proxy form covers.
78.6 Unless the proxy form says otherwise, it will be valid at an adjourned
General Meeting as well as for the original General Meeting to which it
relates.
78.7 A SHAREHOLDER can attend and vote at a General Meeting on a show of
hands or on a poll even if he has appointed a proxy to attend and vote
at that meeting. However, if he votes in person on a resolution, then
as regards that resolution his appointment of a proxy will not be
valid.
79 CANCELLATION OF PROXY'S AUTHORITY
79.1 Any vote cast in the way a proxy form authorises, or any demand for a
poll made by a proxy, will be valid even though:
o the SHAREHOLDER who appointed the proxy has died or is of unsound
mind;
o the proxy form has been revoked; or
o the authority of the person who signed the proxy form for the
SHAREHOLDER has been revoked.
79.2 However, this does not apply if written notice of the fact has been
received at the TRANSFER OFFICE (or at such other place within the
UNITED KINGDOM which is specified for the deposit of proxy forms in
accordance with these ARTICLES) before:
o the General Meeting or adjourned General Meeting starts; or
o the time fixed on a later day to take a poll,
when the vote is taken or poll demanded.
80 AUTHORITY OF PROXIES
80.1 A proxy is entitled to speak at a General Meeting.
80.2 A proxy form gives the proxy the authority to demand a poll, or to join
others in demanding one. A demand for a poll made by a proxy for a
SHAREHOLDER is treated in the same way as a demand by the SHAREHOLDER
himself.
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80.3 Unless the proxy form provides otherwise, a proxy form entitles a proxy
to vote on any amendment to a resolution put to the General Meeting for
which it was given as the proxy thinks fit.
81 REPRESENTATIVES OF COMPANIES
81.1 A COMPANY which is a SHAREHOLDER can authorise any person to act as its
representative at any General Meeting which it is entitled to attend.
This person is called a COMPANY REPRESENTATIVE. The directors of that
COMPANY must pass a resolution to appoint the COMPANY REPRESENTATIVE.
If the governing body of that COMPANY is not a board of directors, the
resolution can be passed by its governing body. A COMPANY
REPRESENTATIVE can exercise all the powers on behalf of the COMPANY
which the COMPANY could exercise if it were an individual SHAREHOLDER
present at the General Meeting in person. This includes the power to
vote on a show of hands when the COMPANY REPRESENTATIVE is present in
person at a General Meeting.
81.2 Any vote cast by a COMPANY REPRESENTATIVE, and any demand he makes for
a poll, is valid even if he is, for any reason, no longer authorised to
represent the COMPANY. However, this does not apply if written notice
of the fact that he is no longer authorised has been received at the
TRANSFER OFFICE (or at such other place within the UNITED KINGDOM which
is specified for the deposit of proxy forms in accordance with these
ARTICLES) before the deadlines which apply to notice of cancellation of
proxies under Article 79.
82 CHALLENGING VOTES
Any objection to the right of any person to vote or the way in which
the votes have been counted must be made at the General Meeting (or
adjourned General Meeting) at which the vote is cast. If a vote is not
disallowed at the General Meeting, it is valid for all purposes. Any
such objection must be raised with the chairman of the General Meeting
and will only change the decision of the General Meeting on any
resolution if the chairman of the General Meeting decides that the vote
cast may have affected the decision of the General Meeting. His
decision on matters referred to him under this Article is final.
DIRECTORS
83 THE NUMBER OF DIRECTORS
There must be at least three directors (other than ALTERNATE
DIRECTORS), but the SHAREHOLDERS can vary the number of directors by
passing an ordinary resolution.
84 QUALIFICATION TO BE A DIRECTOR
A director need not be a SHAREHOLDER, but a director who is not a
SHAREHOLDER is entitled to attend and speak at SHAREHOLDERS' MEETINGS.
85 DIRECTORS' FEES AND EXPENSES
85.1 Each of the directors shall be paid a fee for his services. The
directors can decide on the amount, timing and manner of payment of
directors' fees, but the total of the fees paid to all of the directors
(excluding amounts paid as special PAY under Article 86, amounts paid
as expenses under Article 87 and any payments under Article 88) must
not exceed:
o (pound)1 million a year; or
<PAGE>
o any higher sum decided on by an ordinary resolution at a General
Meeting.
This remuneration shall accrue from day to day.
85.2 Unless an ordinary resolution is passed which provides otherwise, the
fees will be divided between some or all of the directors in the way
that they decide. If they fail to decide, the fees will be shared
equally by the directors, except that any director holding office as a
director for only part of the period covered by the fee is only
entitled to a pro rata share covering that broken period.
86 SPECIAL PAY
86.1 The directors can award special PAY if any director performs extra or
special services of any kind including:
o holding any executive post;
o acting as chairman or deputy chairman (whether or not this office
is executive or non- executive);
o travelling or staying outside his main residence for any business
or purposes of the COMPANY; and
o serving on any committee of the directors.
86.2 Special PAY can take the form of salary, commission or other benefits
or expenses or more than one of such forms or can be paid in some other
way. This is decided on by the directors and may be a fixed sum or
percentage of profits or otherwise. Such special PAY can be either in
addition to or instead of any other fees, expenses and other benefits a
director may be entitled to receive.
87 DIRECTORS' EXPENSES
In addition to any fees and expenses paid under Articles 85 and 86, the
COMPANY will repay to a director all expenses properly incurred in:
o attending and returning from SHAREHOLDERS' MEETINGS;
o attending and returning from directors' meetings;
o attending and returning from meetings of committees of the
directors; or
o in or with a view to the performance of their duties.
88 DIRECTORS' PENSIONS AND OTHER BENEFITS
88.1 The directors may PAY or provide:
o pensions;
o annual payments;
o gratuities; or
o other allowances or benefits
to any people who are, or who were, directors who had a salary or place
of profit with the COMPANY or with any COMPANY which is or has been a
SUBSIDIARY of the COMPANY or a
<PAGE>
predecessor in business of the COMPANY or any such SUBSIDIARY. The
directors can decide to extend these arrangements to any member of his
family (including a spouse and a former spouse) or to any person who
was or is dependent on him. The directors can also decide to contribute
(before as well as after he ceases to receive a salary or occupy a
place of profit) to any scheme or fund or to pay premiums to a third
party for these purposes.
88.2 No director or former director is accountable to the COMPANY or its
SHAREHOLDERS for a benefit of any kind given in accordance with this
Article. The receipt of a benefit of any kind given in accordance with
this Article does not prevent a person from being or becoming a
director.
89 APPOINTING DIRECTORS TO VARIOUS POSTS
89.1 The directors can appoint any director as chairman, or a deputy
chairman, or to any executive position on which they decide. So far as
the COMPANIES ACTS allow, they can decide on how long these
appointments will be for, and on their terms. Subject to the terms of
any contract with the COMPANY, they can also vary or end these
appointments.
89.2 A director will automatically stop being chairman, deputy chairman,
managing director, deputy managing director, joint managing director or
assistant managing director if he is no longer a director. Other
executive appointments will only stop if the contract or resolution
appointing the director to a post says so. If a director's appointment
ends because of this Article, this does not prejudice any claim for
breach of contract against the COMPANY which may otherwise apply.
89.3 The directors can delegate to a director appointed to an executive post
any of the powers which they jointly have as directors. These powers
can be delegated on such terms and conditions as decided by the
directors either in parallel with, or in place of, the powers of the
directors acting as a board. The directors can change the basis on
which these powers are given or withdraw them from the executive.
CHANGING DIRECTORS
90 AGE LIMITS
90.1 Provisions of the COMPANIES ACTS which, together with these ARTICLES,
would restrict the appointment of a director or require him to stop
being a director because he has reached a particular age do not apply
to the COMPANY. This includes restrictions and requirements involving
special formalities once an age limit is reached.
90.2 However, if it is proposed that a director who has reached the age of
70 be elected or re-elected in a notice convening a General Meeting,
the director's age must be stated in the notice (or document
accompanying such notice). However, the accidental failure to state
this will not invalidate the election or re-election of the director or
any other proceedings at the General Meeting.
91 RETIRING DIRECTORS
At each Annual General Meeting all those directors who were elected or
last re-elected at or before the Annual General Meeting held in the
third calendar year before the current year shall automatically retire.
92 ELIGIBILITY FOR RE-ELECTION
A retiring director is eligible for re-election.
<PAGE>
93 RE-ELECTING A DIRECTOR WHO IS RETIRING
93.1 At a General Meeting at which a director retires (whether at an Annual
General Meeting or otherwise), he may be re-elected (as long as the
director has not told the COMPANY in writing that he does not wish to
be re-elected) if the SHAREHOLDERS pass an ordinary resolution to
re-elect him.
93.2 A director retiring at a General Meeting retires at the end of that
meeting (or adjourned meeting). Where a retiring director is re-elected
he continues as a director without a break.
94 ELECTION OF TWO OR MORE DIRECTORS
A single resolution for the election of two or more directors is void
unless the SHAREHOLDERS first approve the putting of a resolution in
this form by an earlier procedural vote taken at the General Meeting,
with no votes cast against.
95 PEOPLE WHO CAN BE DIRECTORS
95.1 Only the following people can be elected as directors at a General
Meeting:
o A director who is retiring at the General Meeting;
o A person who is recommended by the directors; and
o A person who has been proposed by a SHAREHOLDER who is entitled
to attend and vote at the General Meeting.
95.2 A SHAREHOLDER proposing a director in accordance with Article 95.1 must
deliver to the REGISTERED OFFICE at least seven days before the General
Meeting, but not more than 42 days before the meeting (this period
includes the date on which the notice is given):
o a signed letter stating that he intends to propose another person
for election as director; and
o written confirmation from the person to be proposed that he is
willing to be elected.
96 THE POWER TO FILL VACANCIES AND APPOINT EXTRA DIRECTORS
96.1 The directors can appoint any person as an extra director or to fill a
casual vacancy. Any director appointed in this way automatically
retires at the next General Meeting after his appointment. At this
General Meeting he can be elected by the SHAREHOLDERS as a director.
96.2 At a General Meeting the SHAREHOLDERS can also pass an ordinary
resolution to fill a casual vacancy or to appoint an extra director.
96.3 Extra directors can only be appointed under this Article up to the
limit (if any) on the total number of directors under the ARTICLES (or
any variation of the limit approved by the SHAREHOLDERS in accordance
with the ARTICLES).
97 REMOVING AND APPOINTING DIRECTORS BY AN ORDINARY RESOLUTION
97.1 The SHAREHOLDERS can pass an ordinary resolution to remove a director,
even though his time in office has not ended. This applies despite
anything else in the ARTICLES, or in any agreement between him and the
COMPANY. Special notice of the ordinary resolution must be given to the
COMPANY as required by the COMPANIES ACTS. But if a director is removed
in this way, it will not affect any claim which he may have for damages
for breach of any contract of service between him and the COMPANY.
<PAGE>
97.2 Subject to Article 95, the SHAREHOLDERS can pass an ordinary resolution
to elect a person to replace a director who has been removed in the way
described in Article 97.1. If no director is appointed under this
Article, the vacancy can be filled under Article 96.
97.3 Any person appointed under Article 97.2 will be treated, for the
purpose of determining the time at which he is to retire, as if he had
become a director on the day on which the director he replaced was last
elected.
98 WHEN DIRECTORS ARE DISQUALIFIED
98.1 Any director automatically ceases to be a director in any of the
following circumstances if:
o a bankruptcy order is made against him;
o he makes any arrangement or composition with his creditors or
applies for an interim order under Section 253 of the Insolvency
Act 1986 in connection with a voluntary arrangement under that
Act;
o a court which claims jurisdiction to protect people who are
unable to manage their own affairs has made an order detaining
him or appointing a person to manage his property or affairs;
o he has missed directors' meetings for a continuous period of six
months, without permission from the directors, and the directors
pass a resolution removing him from office;
o he is prohibited from being a director under the COMPANIES ACTS
or any power conferred on the directors or SHAREHOLDERS under
these ARTICLES;
o except where his contract of service prevents him from resigning,
he:
(i) delivers to the COMPANY a written notice of resignation
signed by him or on his behalf; or
(ii) offers to resign and the directors pass a resolution
accepting the offer;
o all the other directors sign a notice requiring him to resign. He
will cease to be a director when the notice is served on him.
Such a notice can consist of several documents in the same form
signed by one or more directors.
98.2 When a director stops being a director for any reason, he will also
automatically cease to be a member of any committee. Removal from
office will be without prejudice to any claim which he or the COMPANY
might bring in relation to any contract of service between him and the
COMPANY.
DIRECTORS' MEETINGS
99 DIRECTORS' MEETINGS
The directors can decide when and where to have directors' meetings and
how they shall be conducted, and on the quorum. They can also adjourn
their meetings.
100 WHO CAN CALL DIRECTORS' MEETINGS
A directors' meeting can be called by any director. The SECRETARY must
also call a directors' meeting if a director asks him to.
<PAGE>
101 HOW DIRECTORS' MEETINGS ARE CALLED
Directors' meetings are called by giving notice to all the directors.
This notice may be given to a director personally, by word of mouth, by
notice in writing (sent to him at his last known address) or by
ELECTRONIC MAIL (sent to him at his last known electronic address or
fax number). Any director can waive notice of any directors' meeting,
including one which has already taken place.
102 QUORUM
102.1 If no other quorum is fixed by the directors, three directors are a
quorum. A directors' meeting at which a quorum is present can exercise
all the powers, authorities and discretions of the directors whether by
or under these ARTICLES or exercisable by the directors generally.
102.2 A person who holds office only as an ALTERNATE DIRECTOR shall, if his
appointor is not present, be counted in the quorum.
102.3 A director who ceases to be a director at a directors' meeting can
continue to be present and act as a director and be counted in the
quorum until the end of that meeting if no other director objects and a
quorum would not otherwise be present.
103 THE CHAIRMAN OF DIRECTORS' MEETINGS
103.1 The directors can elect any director as Chairman or as one or more
Deputy Chairmen for such periods as the directors decide. If the
Chairman is at a directors' meeting, he will chair it. In his absence,
the chair will be taken by a Deputy Chairman, if one is present. If
there is no Chairman or Deputy Chairman present within five minutes of
the time when the directors' meeting is due to start, the directors who
are present can choose which one of them will be the Chairman of the
directors' meeting.
103.2 Where there is more than one Deputy Chairman present at a meeting, and
the Chairman is not there, the Deputy Chairman to take the chair will
be the longest serving Deputy Chairman present.
104 VOTING AT DIRECTORS' MEETINGS
Matters for decision which arise at a directors' meeting will be
decided by a majority vote. The chairman of the meeting will not have a
second, casting vote.
105 DIRECTORS CAN ACT EVEN IF THERE ARE VACANCIES
105.1 The remaining directors can continue to act even if one or more of them
ceases to be a director. But if the number of directors falls below the
minimum which applies under Article 83 (including any variation of that
minimum approved by an ordinary resolution of SHAREHOLDERS), the
remaining director(s) can only:
o either appoint further directors to make up the shortfall; or
o call a General Meeting.
105.2 If no director or directors are willing or able to act under this
Article, any two SHAREHOLDERS can call a General Meeting to appoint
extra directors.
<PAGE>
106 DIRECTORS' MEETINGS BY VIDEO CONFERENCE AND TELEPHONE
106.1 Any or all of the directors, or members of a committee, can take part
in a directors' meeting of the directors or of a committee by way of a
video conference or conference telephone, or similar equipment,
designed to allow everybody to take part in the directors' meeting.
106.2 Taking part in this way will be counted as being present at the
directors' meeting. A directors' meeting which takes place by way of
video conference, conference telephone or similar equipment will be
treated as taking place where most of the participants are. If there is
no largest group, directors' meetings will be treated as taking place
where the Chairman is.
106.3 A directors' meeting held in the way described in Article 106.1 will be
valid as long as in one single place, or in places connected by way of
video conference, telephone conference, or similar equipment, a quorum
is present.
107 RESOLUTIONS IN WRITING
107.1 This Article applies to a written resolution which is signed by all of
the directors or members of a committee who would be entitled to vote
on the resolution at a directors' meeting or at a committee meeting.
This kind of resolution is just as valid and effective as a resolution
passed by those directors at a directors' meeting which is properly
called and held.
107.2 The resolution can be passed using several copies of a document, if
each copy is signed by one or more directors. These copies can be faxed
copies.
107.3 A written resolution signed by an ALTERNATE DIRECTOR does not need also
to be signed by his appointor. If the written resolution is signed by a
director who has appointed an ALTERNATE DIRECTOR, it does not need to
be signed by the ALTERNATE DIRECTOR acting in that capacity.
107.4 A written resolution will be valid at the time it is signed by the last
director.
108 THE VALIDITY OF DIRECTORS' ACTIONS
Everything which is done by any directors' meeting, or by a committee
of the directors, or by a person acting as a director, or as a member
of a committee, will, in favour of anyone dealing with the COMPANY in
good faith, be valid even though it is discovered later that any
director, or person acting as a director, was not properly appointed or
elected. This also applies if it is discovered later that anyone was
disqualified from being a director, or had ceased to be a director, or
was not entitled to vote. In any of these cases, in favour of anyone
dealing with the COMPANY in good faith, anything done will be as valid
as if there was no defect or irregularity of the kind referred to in
this Article.
DIRECTORS' INTERESTS
109 DIRECTORS' INTERESTS IN TRANSACTIONS WITH THE COMPANY
109.1 If the COMPANIES ACTS allow, and if he has disclosed to the directors
the nature and extent of his interest, a director can, notwithstanding
his being a director:
(a) be a party to, or otherwise interested in, any existing or
proposed contract, transaction or arrangement with the COMPANY or
in which the COMPANY is otherwise interested;
(b) be a director of, or occupy an office or place of profit (other
than as auditor) in, and in any such case on terms (including
pay) which the directors can decide, or be employed by, or be a
party to any existing or proposed contract, transaction or
arrangement with,
<PAGE>
or otherwise be interested in, any COMPANY promoted by the
COMPANY or in which the COMPANY is otherwise interested; or
(c) alone (or any firm of which he is a partner, employee or member
can) act in a professional capacity for the COMPANY (other than
as auditor) and be paid for this.
109.2 A director will not, unless he agrees otherwise, have to hand over to
the COMPANY any benefit which he derives from any of the interests
described above, and no contract, transaction or arrangement of the
type described above will be liable to be avoided on the grounds of any
director's interest or benefit.
109.3 If the COMPANY holds or owns SHARES in another COMPANY, the directors
can exercise votes attached to such SHARES or if any of the directors
are directors of such other COMPANY, they may vote as directors of that
other COMPANY in such manner as they think fit.
110 WHEN DIRECTORS CAN VOTE ON THINGS IN WHICH THEY ARE INTERESTED
110.1 Unless the ARTICLES say otherwise, a director cannot vote on a
resolution about a contract or any other kind of proposal in which he
has a material interest. For this purpose, any interest of a person who
is connected with a director under Section 346 of the Companies Act
1985 will be treated as if it were an interest of the director himself.
However, the director can vote if the interest is only an interest in
the COMPANY'S SHARES, debentures or other securities. If a director
cannot vote on a resolution, the director cannot be counted in the
quorum when the directors vote on that resolution.
110.2 However, if the COMPANIES ACTS permit, a director can (in the absence
of a material interest other than one which is listed below) vote, and
be counted in the quorum, on any resolution about any of the following
matters, namely:
o giving him, or any other person, any guarantee, security or
indemnity for any money which he, or that other person, has lent
at the request of, or for the benefit of, the COMPANY or any of
its SUBSIDIARY UNDERTAKINGS;
o giving him, or any other person, any security or an indemnity for
any liability which he, or that other person, has incurred at the
request, or for the benefit of, the COMPANY or any of its
SUBSIDIARY UNDERTAKINGS;
o giving any guarantee, security or indemnity, to him, or any other
person, for a debt or obligation which is owed by the COMPANY, or
any of its SUBSIDIARY UNDERTAKINGS, if the director has taken
responsibility by giving a guarantee, indemnity or security for
some or all of that debt or obligation;
o any proposal relating to an offer of any SHARES, debentures or
other securities, of or by the COMPANY, or any of its SUBSIDIARY
UNDERTAKINGS, if the director takes part because he is a holder
of SHARES, debentures or other securities, or if he takes part in
the underwriting or sub-underwriting of the offer;
o any proposal involving any other COMPANY in which the director
(together with any person connected with the director under
section 346 of the COMPANIES ACT 1985), has any kind of interest
(including holding any position in that COMPANY, or being a
SHAREHOLDER of that COMPANY). But this exemption does not apply
if he knows that he, and any people connected with him, hold an
interest in SHARES (as defined for sections 198 to 211 of the
COMPANIES ACT 1985) representing 1 per cent or more of:
<PAGE>
o any class of equity share capital of such COMPANY (or any
third COMPANY through which his interest is derived); or
o the voting rights in that COMPANY.
Any such interest of 1 per cent or more is treated for the
purposes of this Article as being material interest;
o any proposal relating to an arrangement for the benefit of
employees of the COMPANY, or any of its SUBSIDIARY UNDERTAKINGS,
which only gives him benefits which are also generally given to
the employees to whom the arrangement relates; or
o any proposal relating to any insurance which the COMPANY proposes
to buy or renew for the benefit of directors, or of a group of
people which includes directors.
110.3 A director cannot vote or be counted in the quorum on a resolution
relating to appointing that director to a position within the COMPANY
or any COMPANY in which the COMPANY has an interest or the terms and
termination of the appointment.
110.4 This Article applies if the directors are considering proposals about
appointing two or more directors to positions with the COMPANY or any
COMPANY in which the COMPANY has an interest. It also applies if the
directors are considering the terms or termination of such
appointments. These proposals can be split up to deal with each
director separately. If this is done, each director can vote and be
included in the quorum for each resolution, except the one concerning
him. But he cannot vote if the resolution relates to appointing him to
a COMPANY in which the COMPANY is interested in if he has an interest
of 1 per cent or more in that COMPANY of the nature described in
Article 110.2.
110.5 If any question comes up at a directors' meeting about whether a
director has a material interest, or whether he can vote or be counted
in the quorum, and the director does not agree to abstain from voting
on the issue or not be counted in the quorum, the question must be
referred to the chairman of the directors' meeting (unless the Chairman
is the director in question, in which case the other directors will
choose another amongst them to act as chairman in dealing with this
question). The Chairman's ruling about any other director is final and
conclusive, unless the nature and extent of the director's interest has
not been fairly disclosed to the other directors.
111 MORE ABOUT DIRECTORS' INTERESTS
For the purpose of ARTICLES 109 and 110 and this Article, a director
who is in any way interested shall state the nature of his interest at
a directors' meeting in accordance with the COMPANIES ACTS, and:
o a general notice given to the directors that a director has an
interest of the kind stated in the notice in any contract,
transaction or arrangement which involves any COMPANY or person
identified in the notice is treated as a standing disclosure that
the director has that interest;
o an interest of a person who is connected with the director under
section 346 of the COMPANIES ACT 1985 will be treated as an
interest of the director;
o interests (whether his or of any person connected with the
director under section 346 of the COMPANIES ACT 1985) which are
unknown to the director and which it is unreasonable to expect
him to know about are ignored.
<PAGE>
DIRECTORS' COMMITTEES
112 DELEGATING POWERS TO COMMITTEES
The directors can delegate any of their powers, or discretions, to
committees of one or more directors. This includes powers or
discretions relating to directors' PAY or giving benefits to directors.
If the directors have delegated any power or discretion to a committee,
any references in these ARTICLES to using that power or discretion
include its use by the committee. Any committee must comply with any
regulations laid down by the directors. These regulations can require
or allow people who are not directors to be co-opted onto the
committee, and can give voting rights to co-opted members. But:
o there must be more directors on a committee than co-opted
members; and
o a resolution of the committee is only effective if a majority of
the members of the committee present at the time of the
resolution were directors.
113 COMMITTEE PROCEDURE
If a committee includes two or more people, the Articles which regulate
directors' meetings and their procedure will also apply to committee
meetings (if possible), unless these are inconsistent with any
regulations for the committee which have been laid down under Article
112.
DIRECTORS' POWERS
114 THE DIRECTORS' MANAGEMENT POWERS
114.1 The COMPANY'S business will be managed by the directors. They can use
all the COMPANY'S powers except where the ARTICLES, or the COMPANIES
ACTS, provide that powers can only be used by the SHAREHOLDERS voting
to do so at a General Meeting. The general management powers under this
Article are not limited in any way by specific powers given to the
directors by other Articles.
114.2 The directors are, however, subject to:
o the provisions of the COMPANIES ACTS;
o the requirements of the MEMORANDUM or these ARTICLES; and
o any other requirements (whether or not consistent with these
ARTICLES) which are approved by the SHAREHOLDERS by passing a
special resolution at a General Meeting.
However, if any change is made to the MEMORANDUM or these ARTICLES or
if the SHAREHOLDERS approve a requirement relating to something which
the directors have already done which was within their powers, this
will not invalidate any prior act of the directors which would
otherwise have been valid.
115 THE POWER TO ESTABLISH LOCAL BOARDS
115.1 The directors can set up local committees, local boards or local
agencies to manage any of the COMPANY'S business. These can be either
in or outside the UNITED KINGDOM. The directors can appoint, remove and
re-appoint anybody (who need not be a director) to be:
o members of any local committee, board or agency; or
<PAGE>
o managers or agents of the COMPANY.
115.2 The directors can:
o decide on the PAY and other benefits of people appointed under
this Article;
o delegate any of their authority, powers or discretions to:
(i) any local board or committee; or
(ii) any manager, or agent of the COMPANY;
o allow local committees or boards, managers or agents to delegate
to another person;
o allow the members of local committees, boards or agencies to fill
any vacancies on them;
o allow the members of local committees, boards or agencies to
continue to act even though there are vacancies on them;
o remove any people they have appointed under this Article; and
o cancel or change an appointment or delegation made under this
Article, although this will not affect anybody who acts in good
faith who has not had any notice of any cancellation or
variation.
Any appointment or delegation by the directors which is referred to in
this Article can be on any terms and conditions decided on by the
directors.
115.3 A person who is employed by, or occupies an office with, the COMPANY
may be given a title which includes the words "Associate Director".
This will not imply that such person is a director of the COMPANY or
that he is entitled to act as a director or be deemed to be a director
for the purposes of these ARTICLES.
116 THE POWER TO APPOINT ATTORNEYS
116.1 The directors can appoint anyone (including the members of a group
which changes over time) as the COMPANY'S attorney or attorneys by
granting a power of attorney or by authorising him or them in some
other way. The attorney or attorneys can either be appointed directly
by the directors, or the directors can give someone else the power to
select attorneys. The directors can decide on the purposes, powers,
authorities and discretions of attorneys.
116.2 The directors can decide for how long a power of attorney will last and
they can apply any terms and conditions to it. The power of attorney
can also include any provisions which the directors decide on for the
protection and convenience of anybody dealing with the attorney. The
power of attorney can also allow the attorney to sub-delegate any or
all of his power, authority or discretion to any other person.
117 BORROWING POWERS
So far as the COMPANIES ACTS allow, the directors can exercise all the
powers of the COMPANY to:
o borrow money;
o issue (subject to the provisions of the COMPANIES ACTS regarding
authority to allot debentures convertible into SHARES) debentures
and other securities; and
<PAGE>
o give any form of:
o guarantee; and
o security, either outright or as collateral and over all or
any of the COMPANY'S undertaking, property and uncalled
capital,
for any debt, liability or obligation of the COMPANY or of any
third party.
118 BORROWING RESTRICTIONS
118.1 The directors must:
o limit the BORROWINGS of the COMPANY and
o exercise all voting and other rights or powers of control
exercisable by the COMPANY in relation to its SUBSIDIARY
UNDERTAKINGS
to ensure that the total amount of all BORROWINGS by the GROUP
outstanding at any time will not exceed:
o for the period from the date of the adoption of these ARTICLES to
(and including) the date of the approval by the directors of the
GROUP'S audited financial statements for the year ending 31 March
2000 the greater of:
o 1.5 times the ADJUSTED TOTAL OF CAPITAL AND RESERVES at such
time; or
o (pound)15 billion (or its equivalent in any other currency
or currencies) at such time; and
o at any time after the date of the approval by the directors of
the GROUP'S audited financial statements for the year ending 31
March 2000, 1.5 times the ADJUSTED TOTAL OF CAPITAL AND RESERVES
at such time.
This limitation on BORROWINGS will only affect SUBSIDIARY UNDERTAKINGS
to the extent that the directors can restrict the borrowings of the
SUBSIDIARY UNDERTAKINGS by exercising the rights or powers of control
which the COMPANY has over its SUBSIDIARY UNDERTAKINGS. The COMPANY may
consent in advance to exceeding the borrowing limit by passing an
ordinary resolution at a General Meeting.
118.2 In this Article:
GROUP means the COMPANY and its SUBSIDIARY UNDERTAKINGS for the time
being;
ADJUSTED TOTAL OF CAPITAL AND RESERVES means the aggregate of the share
capital and reserves as shown in the latest audited consolidated
balance sheet of the GROUP (including the amount PAID UP or credited as
PAID UP on the issued share capital of the COMPANY, the share premium
account, capital redemption reserve, profit and loss account and other
reserves included within the GROUP'S equity SHAREHOLDERS' funds) (the
"RESERVES") but:
o adjusted as appropriate in respect of any variation to the PAID
UP SHARE capital or reserves since the date of the latest audited
consolidated balance sheet as recorded within the monthly
management accounting records of the GROUP prepared in accordance
with the accounting bases and principles applied in the
preparation of its latest audited consolidated balance sheet;
<PAGE>
o adding any amount which has been deducted at any time from the
RESERVES of the GROUP for goodwill arising on consolidation
either by direct charge to RESERVES or by charge to the GROUP'S
consolidated profit and loss account; and
o making such other adjustments (if any) as the auditors of the
COMPANY consider appropriate.
BORROWINGS means the aggregate amount of all liabilities and
obligations of the GROUP which in accordance with the accounting bases
and principles of the GROUP are treated as borrowings in the latest
audited consolidated balance sheet of the GROUP but:
o adjusted as appropriate in respect of any variation to borrowings
since the date of the latest audited consolidated balance sheet
as recorded within the monthly management accounting records of
the GROUP prepared in accordance with the accounting bases and
principles applied in its latest audited consolidated balance
sheet;
o excluding any borrowings under finance or structured tax lease
arrangements to the extent matched as part of those arrangements
by deposits of cash or cash equivalent investments which are
treated by the creditor concerned as available to reduce its net
exposure; and
o making such other adjustments (if any) as the auditors of the
COMPANY consider appropriate.
118.3 The determination of the COMPANY'S auditors as to the amount of the
ADJUSTED TOTAL OF CAPITAL AND RESERVES and the total amount of
BORROWINGS at any time shall be conclusive and binding on all concerned
and for the purposes of their computation the COMPANY'S auditors may at
their discretion make such further or other adjustments (if any) or
determinations as they think fit. Nevertheless the directors may act in
reliance on a bona fide estimate of the amount of the ADJUSTED TOTAL OF
CAPITAL AND RESERVES and the total amount of BORROWINGS at any time and
if in consequence the borrowing limit is inadvertently exceeded an
amount of borrowings equal to the excess may be disregarded until the
expiration of three months after the date on which by reason of a
determination of the COMPANY'S auditors or otherwise the directors
became aware that such a situation has or may have arisen.
118.4 No lender or other person dealing with the GROUP need be concerned
whether the borrowing limit is observed. No debt incurred or security
given in breach of the borrowing limit will be invalid or ineffective
unless the lender or the recipient of the security had express notice
at the time when the debt was incurred or security given, that the
limit had been or would as a result be breached.
ALTERNATE DIRECTORS
119 ALTERNATE DIRECTORS
119.1 Any director may appoint any person (including another director) to act
in his place (such person is called an ALTERNATE DIRECTOR). Such
appointment requires the approval of the directors, unless the proposed
ALTERNATE DIRECTOR is another director. A director appoints an
ALTERNATE DIRECTOR by delivering a signed appointment (or in any other
manner which has been approved by the directors) to the REGISTERED
OFFICE. An ALTERNATE DIRECTOR need not be a SHAREHOLDER.
<PAGE>
119.2 The appointment of an ALTERNATE DIRECTOR ends if the director
appointing him ceases to be a director, unless that director retires at
a General Meeting at which he is re-elected under Article 93.1. A
director can also remove his alternate by delivering a signed notice
(or doing something else which has been approved by the directors)
delivered to the REGISTERED OFFICE. An ALTERNATE DIRECTOR can also be
removed as an alternate by a resolution of the directors.
119.3 An ALTERNATE DIRECTOR is entitled to receive notices of directors'
meetings once he has given the COMPANY an address, electronic address
or fax number to which notices may be served on him. He is entitled to
attend and vote as a director at any such meeting at which the director
appointing him is not personally present and generally at such meeting
to perform all functions of the director appointing him as a director.
If he is himself a director or attends any such meeting as an alternate
for more than one director, he will have one vote for each director for
whom he acts as an alternate, in addition to his own vote as a
director. However, he may not be counted more than once for the
purposes of the quorum. If his appointor is temporarily unable to act
through ill health or disability his signature to any resolution in
writing of the directors is as effective as the signature of his
appointor.
119.4 If the directors decide to allow this, Article 119.3 also applies in a
similar fashion to any meeting of a committee of which his appointor is
a member.
119.5 An ALTERNATE DIRECTOR shall be an officer of the COMPANY and shall
alone be responsible to the Company for his own actions and mistakes.
Except as said in this Article 119, an ALTERNATE DIRECTOR:
o does not have power to act as a director;
o is not considered to be a director for the purposes of the
ARTICLES;
o is not considered to be the agent of his appointor; and
o cannot appoint an ALTERNATE DIRECTOR.
119.6 Subject to the COMPANIES ACTS, an ALTERNATE DIRECTOR is entitled to
contract and be interested in and benefit from contracts or
arrangements or transactions and to be repaid expenses and to be
indemnified to the same extent as if he were a director. However, he is
not entitled to receive from the COMPANY as ALTERNATE DIRECTOR any PAY,
except only such part (if any) of the PAY otherwise payable to his
appointor as such appointor may direct the COMPANY in writing to pay to
his alternate.
THE SECRETARY
120 THE SECRETARY AND DEPUTY AND ASSISTANT SECRETARIES
120.1 The SECRETARY is appointed by the directors. The directors decide on
the terms and period of his appointment so long as allowed to do so by
the COMPANIES ACTS. The directors can also remove the SECRETARY, but
this does not affect any claim for damages against the COMPANY for
breach of any contract between him and the COMPANY.
120.2 The directors can also appoint one or more people to be deputy or
assistant secretary. Anything which the COMPANIES ACTS allow to be done
by or to the secretary can, if there is no SECRETARY, or he is for any
reason not capable of doing what is required of him, also be done by or
to any deputy or assistant secretary. If there is no deputy or
assistant secretary capable
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of acting, the directors can appoint any officer to do what would be
required of the deputy or assistant secretary.
120.3 Anything which the COMPANIES ACTS allow to be done by or to a director
and the SECRETARY, cannot be done by or to one person acting as both a
director and a SECRETARY.
THE SEAL
121 THE SEAL
121.1 The directors are responsible for arranging for the COMMON SEAL and any
SECURITIES SEAL to be kept safely. The COMMON SEAL and any SECURITIES
SEAL can only be used with the authority of the directors or of a
committee authorised by the directors to use it. The SECURITIES SEAL
can be used only for sealing securities issued by the COMPANY in
CERTIFICATED FORM and sealing documents creating or evidencing
securities issued by the COMPANY.
121.2 Subject to the provisions of these ARTICLES which relate to share
certificates, every document which is sealed using the COMMON SEAL must
be signed personally by:
o one director and the SECRETARY; or
o two directors; or
o any other persons who are authorised to do so by the directors.
121.3 Where a signature is required to witness the COMMON SEAL, the directors
may decide that the individual need not sign the document personally
but that his signature may be printed on it mechanically,
electronically or in any other way the directors approve.
121.4 Securities and documents which have the SECURITIES SEAL stamped on them
do not need to be signed unless the directors or the COMPANIES ACTS
require this.
121.5 The directors can use all the powers given by the COMPANIES ACTS
relating to official seals for use abroad.
121.6 Certificates for debentures or other securities of the COMPANY may be
printed in any way and may be sealed and/or signed for in any manner
allowed by these ARTICLES.
As long as it is allowed by the COMPANIES ACTS, any document signed by
one director and the SECRETARY or by two directors and expressed to be
entered into by the COMPANY shall have the same effect as if it had
been made effective by using the COMMON SEAL. However no document which
states that it is intended to have effect as a deed shall be signed in
this way without the authority of the directors or of a committee
authorised by the directors to give such authority.
AUTHENTICATING DOCUMENTS
122 ESTABLISHING THAT DOCUMENTS ARE GENUINE
122.1 Any director, or the SECRETARY, has power to identify as genuine any of
the following and to certify copies or extracts from them as true
copies or extracts:
o any documents relating to the COMPANY'S constitution;
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o any resolutions passed by the SHAREHOLDERS or any class of
SHAREHOLDERS, or by the directors or by a committee of the
directors; and
o any books, documents, records or accounts which relate to the
COMPANY'S business.
The directors can also delegate this power to other people.
122.2 When any books, documents, records or accounts are not kept at the
REGISTERed OFFICE, the officer of the COMPANY who has custody of them
is treated as a person who has been authorised by the directors to
identify them as genuine and to provide certified copies or extracts
from them.
122.3 A document which appears to be a copy of a resolution or an
extract from the minutes of any meeting, and which is certified as a
copy or extract as described in Article 122.1 or 122.2 is conclusive
evidence for anyone who deals with the COMPANY on the strength of the
document that:
o the resolution has been properly passed; or
o the extract is a true and accurate record of the proceedings of a
valid meeting.
RESERVES
123 SETTING UP RESERVES
The directors can, before recommending any dividend, set aside any
profits of the COMPANY and hold them in a reserve. The directors can
decide to use these sums for any purpose for which the profits of the
COMPANY can lawfully be used. Sums held in a reserve can either be
employed in the business of the COMPANY or be invested. The directors
can divide the reserve into separate funds for particular purposes and
alter the funds into which the reserve is divided. The directors can
also carry forward any profits without holding them in a reserve.
DIVIDENDS
124 NO DIVIDENDS ARE PAYABLE EXCEPT OUT OF PROFITS
124.1 No dividend can be paid otherwise than out of profits available for
for distribution under the COMPANIES ACTS.
124.2 The profits of the COMPANY which are determined to be distributed will
be used in the payment of dividends to SHAREHOLDERS in accordance with
with their respective rights and priorities.
125 FINAL DIVIDENDS
The directors may recommend the amount of any final dividend. The
SHAREHOLDERS can then declare dividends by passing an ordinary
resolution, but the amount declared cannot exceed the amount
recommended by the directors.
126 FIXED AND INTERIM DIVIDENDS
126.1 If the directors consider that the profits of the COMPANY justify such
payments, they can pay:
o fixed dividends on any class of SHARES carrying a fixed dividend
on the dates fixed for the payment of those dividends; and
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o interim dividends on SHARES of any class of any amounts and on
any dates and for any period which they decide.
126.2 If the directors act in good faith, they are not liable to any
SHAREHOLDERS for any loss they may suffer because a lawful dividend has
been paid under this Article on other SHARES which rank equally with or
behind their SHARES.
127 DIVIDENDS NOT IN CASH
If the directors recommend this, SHAREHOLDERs can pass an ordinary
resolution to direct all or part of a dividend to be paid by
distributing specific assets (and in particular PAID-UP SHARES or
debentures of any other COMPANY) rather than cash. The directors must
give effect to that resolution. Where any difficulty arises on the
distribution and valuation of the assets, the directors can settle it
as they decide. In particular, they can:
o issue fractional certificates;
o value assets for distribution purposes;
o pay cash of a similar value to adjust the rights of persons
entitled to the dividend; and/or
o transfer any assets to trustees for persons entitled to the
dividend.
128 CALCULATION AND CURRENCY OF DIVIDENDS
128.1 All dividends will be divided and paid in proportions based on the
amounts which have been PAID-UP on the SHARES during any period for
which the dividend is paid. Sums which have been PAID-UP in advance of
calls do not count in calculating the amount of a dividend to be paid
on a SHARE. If the terms on which any SHARE is issued provide that such
SHARE will be entitled to a dividend as if it were a fully PAID-UP, or
partly PAID-UP, SHARE from a particular date (in the past or the
future), it will be entitled to a dividend on this basis. This Article
applies unless the RIGHTS attached to any SHARES, or the terms of any
SHARES, provide otherwise.
128.2 Unless the RIGHTS attached to any SHARES, or the terms of any
SHARES, or the ARTICLES provide otherwise, a dividend, or any other
money payable in respect of any SHARE, can be paid to a SHAREHOLDER in
whatever currency the directors decide, using an appropriate exchange
rate selected by the directors for any currency conversions which are
required.
129 DEDUCTING AMOUNTS OWING FROM DIVIDENDS AND OTHER MONEY
If a SHAREHOLDER owes any money for calls on SHARES, or money relating
in any other way to SHARES, the directors can deduct any of this money
(as long as it is immediately payable) from:
o any dividend on any SHARES held by the SHAREHOLDER; or
o any other money payable by the COMPANY in connection with the
SHARES.
Money deducted in this way can be used to pay amounts owed to the
COMPANY in connection with the SHARES.
130 PAYMENTS TO SHAREHOLDERS
130.1 Any dividend or other money payable in cash (whether in STERLING or
foreign currency) relating to a SHARE can be paid:
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o by cheque or warrant or any other similar financial instrument
made payable to the SHAREHOLDER who is entitled to it and sent
direct to his registered address or, in the case of joint
SHAREHOLDERS, to the SHAREHOLDER who is first named in the
REGISTER and sent direct to his registered address, or to someone
someone else named in a written instruction from the
SHAREHOLDER (or from all joint SHAREHOLDERS);
o in the case of SHARES in UNCERTIFICATED FORM, by the use of a
RELEVANT SYSTEM;
o by inter-bank transfer or other electronic means to an account
named in a written instruction from the person receiving the
payment; and/or
o in some other way agreed between the SHAREHOLDER (or all joint
SHAREHOLDERS) and the COMPANY.
130.2 For joint SHAREHOLDERS, the COMPANY can rely on a receipt for a
dividend or other money paid on SHARES from any one of them.
130.3 Cheques and warrants are sent, and payment in any other way is made,
made, at the risk of the people who are entitled to the money. The
COMPANY is treated as having paid a dividend if such a cheque or
warrant is cleared or if a payment using a RELEVANT SYSTEM or bank
transfer or other electronic means is made in accordance with
instructions given by the COMPANY. The COMPANY will not be responsible
for a payment which is lost or delayed.
130.4 The COMPANY will not pay interest on any dividend or other money due
to a SHAREHOLDER in respect of his SHARES, unless the rights of the
SHARES provide otherwise.
131 RECORD DATES FOR PAYMENTS AND OTHER MATTERS
Any dividend or distribution on SHARES of any class can be paid to the
holder or holders of the SHARES shown on the REGISTER, at the close of
business on whatever day may be provided in the resolution declaring
the dividend or providing for the distribution. The dividend or
distribution will be based on the number of SHARES Registered on that
day. This Article applies whether what is being done is the result of a
resolution of the directors or a resolution passed at a General
Meeting. The date can be before any relevant resolution was passed.
This Article does not affect the rights to the dividend or distribution
as between past and present SHAREHOLDERS.
132 DIVIDENDS WHICH ARE NOT CLAIMED
132.1 If a dividend has not been claimed for one year after the passing of
either the resolution passed at a General Meeting declaring that
dividend or the resolution of the directors providing for payment of
that dividend, the directors may invest the dividend or use it in some
other way for the benefit of the COMPANY until the dividend is claimed
If the directors pay unclaimed dividends into a separate account, the
COMPANY will not be a trustee of the money and will not be liable to
pay any interest on it. If a dividend has not been claimed for 12 years
after either the passing of the relevant resolution either declaring
that dividend or providing for payment of that dividend, it will
be forfeited and belong to the COMPANY again.
132.2 The COMPANY can stop paying dividends by cheque, warrant or other
payment order if cheques, warrants or other payment orders for two
dividends in a row are sent back or not cashed. The COMPANY must start
paying dividends in this way again if the SHAREHOLDER or a person
automatically entitled to the SHARES by law:
o claims those dividends in writing (before they are forfeited
under Article 132.1); and
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o does not tell the COMPANY to start paying future dividends in
some other way.
133 WAIVER OF DIVIDENDS
Where a SHAREHOLDER wants to waive his entitlement to all or any part
of a dividend, he may do so by delivering a letter to that effect,
signed by him, to the COMPANY. If appropriate, the letter may be signed
by whoever has become automatically entitled to the SHARES by law. For
the waiver to be effective, the COMPANY must accept the letter and act
on it. The COMPANY may, however, decline to act on the letter and
continue to pay dividends to the SHAREHOLDER accordingly.
CAPITALISING RESERVES
134 CAPITALISING RESERVES
134.1 Subject to any special rights attaching to any class of SHARES, the
SHAREHOLDERs can pass an ordinary resolution to allow the directors to
change into capital any sum which:
o is part of any of the COMPANY'S reserves (including premiums
received when any SHARES were issued, capital redemption reserves
or other undistributable reserves); or
o the COMPANY is holding as undistributed profits.
134.2 Unless the ordinary resolution states otherwise the directors will use
the sum which is changed into capital for the ORDINARY SHAREHOLDERS on
the REGISTER at the close of business on the day the resolution is
passed (or another date stated in the resolution or fixed as stated in
the resolution). The sum set aside must be used to pay up in full
SHARES of the COMPANY and to allot such SHARES and distribute them to
holders of ORDINARY SHARES as bonus SHARES in proportion to their
holdings of ORDINARY SHARES at the time. The SHARES can be ORDINARY
SHARES or, if the rights of other existing SHARES allow this, SHARES of
some other class.
134.3 If any difficulty arises in operating this Article, the directors can
resolve it in any way which they decide. For example they can deal with
entitlements to fractions of a SHARE. They can decide that the
benefit of fractions of a SHARE belongs to the COMPANY or that
fractions of a SHARE are ignored or deal with fractions of a SHARE in
some other way.
134.4 The directors can appoint any person to sign any contract with the
COMPANY on behalf of those who are entitled to SHARES under the
resolution. Such a contract is binding on all concerned.
SCRIP DIVIDENDS
135. ORDINARY SHAREHOLDERS CAN BE OFFERED THE RIGHT TO RECEIVE EXTRA SHARES
INSTEAD OF CASH DIVIDENDS
135.1 The directors can offer ORDINARY SHAREHOLDERS the right to choose to
receive extra ORDINARY SHARES, which are credited as fully PAID-UP,
instead of some or all of their cash dividend. Before they can do this,
the SHAREHOLDERS must have passed an ordinary resolution authorising
the directors to make this offer.
135.2 The ordinary resolution can apply to a particular dividend or dividends
(whether declared or not). Alternatively, it can apply to some or all
of the dividends which may be declared or paid in
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a specified period. The specified period must end no later than five
years after the ordinary resolution is passed.
135.3 The directors can offer ORDINARY SHAREHOLDERS or persons automatically
entitled by operation of law the right to request new ORDINARY SHARES
instead of cash for:
o the next dividend; or
o all future dividends (if SHARES are made available as an
alternative to a cash dividend), until they tell the COMPANY
that they no longer wish to receive new ORDINARY SHARES.
The directors can also allow ORDINARY SHAREHOLDERS to choose between
these alternatives.
135.4 An ORDINARY SHAREHOLDER opting for new SHARES is entitled to ORDINARY
SHARES whose total RELEVANT VALUE is as near as possible to the cash
dividend (disregarding any tax credit) he would have received, but no
greater than such cash dividend.
The RELEVANT VALUE of an ORDINARY SHARE is a value calculated in the
manner set out in the ordinary resolution or, if the ordinary
resolution does not set out how the RELEVANT VALUE of an ORDINARY SHARE
is to be calculated, then the RELEVANT VALUE of an ORDINARY SHARE is
the average value of the ORDINARY SHARES for the five dealing days
starting from, and including, the day when the SHARES are first quoted
"ex dividend". This average value is worked out from the average
middle market quotations for the ORDINARY SHARES on the LONDON STOCK
EXCHANGE, as published in its Daily Official List. A certificate or
report from the COMPANY'S auditors as to the amount of the RELEVANT
VALUE will be conclusive evidence of that amount.
135.5 After the directors have decided to apply this Article to a dividend,
they must notify eligible ORDINARY SHAREHOLDERS in writing (or where
the COMPANIES ACTS permit, by ELECTRONIC MAIL) of their right to choose
new ORDINARY SHARES. This notice should also set out the procedure by
which the ORDINARY SHAREHOLDERS must notify the COMPANY if they wish to
receive new ORDINARY SHARES. Where ORDINARY SHAREHOLDERS have already
chosen to receive new ORDINARY SHARES in place of all cash future
dividends, if new ORDINARY SHARES are available, the COMPANY will not
notify them of a right to receive new ORDINARY SHARES. Instead, the
COMPANY will remind them that they have already chosen to receive new
ORDINARY SHARES and explain to them how to tell the COMPANY if they
wish to start receiving cash dividends again.
135.6 The directors can set a minimum number of ORDINARY SHARES in respect of
which the right to choose new ORDINARY SHARES can be exercised. No
ORDINARY SHAREHOLDER or person who is automatically entitled to an
ORDINARY SHARE by law will receive a fraction of a SHARE. The directors
can decide how to deal with any fractions left over and the COMPANY
can, if the directors decide, receive the benefit of any or all of
these.
135.7 The directors can exclude or restrict the right to choose new ORDINARY
SHARES, or make any other arrangements where they decide that:
o this is necessary or convenient to deal with any legal or
or practical problems in relation to holders of ORDINARY SHARES
with registered addresses in any particular territory under the
laws of any territory, or requirements of any recognised
regulatory body or stock exchange in any territory; or
<PAGE>
o special formalities would otherwise apply in connection with the
offer of new ORDINARY SHARES (including RDINARY SHARES being
represented by AMERICAN DEPOSITARY SHARES); or
o it would be impractical or unduly onerous to give the right to any
ORDINARY SHAREHOLDER or that for some other reason the offer
should not be made to them.
135.8 If an ORDINARY SHAREHOLDER chooses to receive new ORDINARY SHARES, no
dividend on the ORDINARY SHARES for which he has chosen to receive new
ORDINARY SHARES (which are called the ELECTED SHARES), will be declared
or payable. Instead, new ORDINARY SHARES will be allotted on the basis
set out earlier in this Article. To do this the directors will convert
into capital a sum equal to the total nominal value of the new ORDINARY
SHARES to be allotted. They will use this sum to pay up in full the
appropriate number of new ORDINARY SHARES. These will then be allotted
and distributed to the holders of the ELECTED SHARES as set out above.
The sum to be converted into capital can be taken from any amount which
is then in any reserve or fund (including the share premium account,
any capital redemption reserve and the profit and loss account).
Article 134 applies to this process, so far as it is consistent with
this Article 135.
135.9 The new ORDINARY SHARES rank equally in all respects with the existing
fully PAID-UP ORDINARY SHARES at the time the new ORDINARY SHARES are
allotted. The new ORDINARY SHARES are not entitled to share in the
dividend from which they arose or any other dividend or distribution or
other entitlement which has been declared, made or paid or is payable
by reference to such record date or earlier record date.
135.10 Unless the directors decide otherwise or the CREST REGULATIONS or the
rules of a RELEVANT SYSTEM require otherwise, any new ORDINARY SHARES
which an ORDINARY SHAREHOLDER has chosen to receive instead of some or
all of his cash dividend will be:
o SHARES in UNCERTIFICATED FORM if the corresponding elected SHARES
were UNCERTIFICATED SHARES on the record date for that dividend;
and
o SHARES in CERTIFICATED FORM if the corresponding elected SHARES
were SHARES in CERTIFICATED FORM on the recorddate for that
dividend.
135.11 The directors can decide that new ORDINARY SHARES will not be available
in place of any cash dividend. They can decide this at any time before
new ORDINARY SHARES are allotted in place of such dividend, whether
before or after ORDINARY SHAREHOLDERS have chosen to receive new
ORDINARY SHARES.
135.12 The directors have the power to do all acts and things they consider
necessary to give effect to this Article.
ACCOUNTS
136 ACCOUNTING AND OTHER RECORDS
136.1 The directors must make sure that proper accounting records that comply
with the COMPANIES ACTS are kept. These records must explain the
COMPANY'S transactions and show its financial position at any time with
reasonable accuracy.
136.2 The directors must, in accordance with the COMPANIES ACTS, ensure that
the profit and loss accounts, balance sheets, group accounts (if any)
and reports specified in the COMPANIES ACTS are prepared and laid
before the COMPANY at a General Meeting.
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136.3 The auditors' report must be laid before the COMPANY in General Meeting
and must be open for inspection as required by the COMPANIES ACTS.
137 LOCATION AND INSPECTION OF RECORDS
137.1 The accounting records must be kept:
o at the REGISTERED OFFICE; or
o at any other place which the COMPANIES ACTS allow and the
directors decide on.
137.2 The COMPANY'S officers always have the right to inspect the accounting
records.
138.1 No SHAREHOLDER (other than a SHAREHOLDER who is also an officer) has
any right to inspect any books or papers of the COMPANY unless:
o the COMPANIES ACTS or a proper court order give him that right;
or
o the directors authorise him to do so; or
o he is authorised by an ordinary resolution to do so.
138 SENDING COPIES OF ACCOUNTS AND OTHER DOCUMENTS
138.1 This Article applies to every directors' and auditors' report and
balance sheet and profit and loss account to be laid before the
SHAREHOLDERS at a General Meeting with any other document which the
COMPANIES ACTS requires to be attached to these.
138.2 Copies of the documents set out in Article 138.1 must be delivered or
sent by post to the SHAREHOLDERS and debenture holders at their
Registered addresses and to all other people to whom the ARTICLES, or
the COMPANIES ACTS or the requirements of the LONDON STOCK EXCHANGE (or
of any other stock exchange on which all or any of the SHARES of the
COMPANY have been admitted for listing) require the COMPANY to send
them. This must be done at least 21 days before the relevant General
Meeting. However, the COMPANY need not send these documents to
SHAREHOLDERS who are sent summary financial statements in accordance
with the COMPANIES ACTS.
138.2 SHAREHOLDERS or debenture holders who are not sent copies of the above
documents in Article 138.2 can receive a copy free of charge by
applying to the COMPANY at the REGISTERED OFFICE.
AUDITORS
139 ACTS OF AUDITORS
The directors must appoint auditors for the COMPANY. The duties of the
auditors will be regulated in accordance with the COMPANIES ACTS. So
far as the COMPANIES ACTS allow, the actions of a person acting as an
auditor are valid in favour of anyone dealing with the COMPANY in good
faith, even if there was some defect in the person's appointment or
qualification to act as an auditor.
140 AUDITORS AT GENERAL MEETINGS
The COMPANY'S auditor can attend any General Meeting. He can speak at
General Meetings on any business which is relevant to him as auditor.
<PAGE>
NOTICES
141 SERVING AND DELIVERING NOTICES AND OTHER DOCUMENTS
141.1 The COMPANY can serve or deliver any offer, notice or other document,
including a SHARE certificate, on or to a SHAREHOLDER:
o personally;
o by posting it in a letter (with postage paid) to the SHAREHOLDER'S
registered address or by causing it to be left at that address in
some other way; or
o so far as the COMPANIES ACTS allow (and except in relation to
share certificates), by electronic mail to an electronic address
or fax number in the UNITED KINGDOM notified by the SHAREHOLDER in
writing.
141.2 If the COMPANY cannot effectively call a General Meeting by sending
notices through the post, because the post is suspended or restricted
in the UNITED KINGDOM, the directors can call the General Meeting by
publishing a notice in at least one UNITED KINGDOM national newspaper.
Notice published in this way will be treated as being properly served
on SHAREHOLDERS who are entitled to receive it at noon on the day when
the advertisement first appears. If it becomes possible to use the post
again more than seven days before the General Meeting, the COMPANY must
send confirmation of the notice by post.
141.3 Any notice given by the COMPANY to its SHAREHOLDERS (except for a
notice convening a SHAREHOLDERS' meeting) can (if it is not possible to
send a notice by post) be sufficiently given by placing an
advertisement of the notice once in at least one national newspaper.
141.4 However, Articles 141 to 146 do not affect any provision of the
COMPANIES ACTS requiring offers, notices or documents to be served in a
particular way.
142 NOTICES TO JOINT HOLDERS
When a notice or document is to be given to joint SHAREHOLDERs it must
be given to the joint SHAREHOLDER who is listed first on the REGISTER
for the SHARE or SHARES, but ignoring any joint SHAREHOLDER without a
UNITED KINGDOM address under Article 143. A notice given in this way is
treated as given to all of the joint holders.
143 NOTICES FOR SHAREHOLDERS WITH FOREIGN ADDRESSES
This Article applies to a SHAREHOLDER whose address on the REGISTER is
outside the UNITED KINGDOM. He can give the COMPANY a UNITED KINGDOM
address where notices or documents can be served on him. If he does, he
is entitled to have notices or documents served on him at that address.
Otherwise, he is not entitled to receive any notices from the COMPANY.
144 WHEN NOTICES ARE SERVED
144.1 If a notice or document is delivered or served by hand, it is treated
as being delivered or served at the time it is handed to the
SHAREHOLDER or left at his registered address.
144.2 If a notice or document is sent through the post, it is treated as
being served or delivered at the expiration of 24 hours after it was
posted in the UNITED KINGDOM.
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144.3 It can be proved conclusively that a notice or other document was
served by post by showing that the envelope containing the notice or
document was:
o properly addressed and
o put into the post and sent with postage prepaid.
144.4 To the extent permitted by the COMPANIES ACTS and these ARTICLES a
notice or document sent by ELECTRONIC MAIL is treated as being served
or delivered at the expiration of two hours from the time on the day it
was sent.
144.5 If a notice is given by advertisement, it is treated as being served or
delivered on the day on which the advertisement appears.
145 SERVING NOTICES AND DOCUMENTS ON SHAREHOLDERS WHO HAVE DIED OR ARE
BANKRUPT This Article applies where a SHAREHOLDER has died, or become
bankrupt or has become of unsound mind, but is still registered as a
SHAREHOLDER. It applies whether he is registered as a sole or joint
SHAREHOLDER. If any notice, or other document, is served on the
SHAREHOLDER named on the REGISTER, or sent to him in accordance with
the ARTICLES, this will be valid despite his death or bankruptcy or
becoming of unsound mind. This applies even if the COMPANY knew about
these things. If notices or documents are served or sent in accordance
with this Article, there is no need to send them to, or serve them in
any other way on any other people who may be involved.
146 IF DOCUMENTS ARE ACCIDENTALLY NOT SENT
If any notice, or other document relating to any meeting or other
proceeding, is accidentally not sent, or is not received, the meeting
or other proceeding will not be invalid as a result.
MINUTES AND RECORDS
147 MINUTES
147.1 The directors must ensure that minutes are entered in books kept for
the purpose of:
o all appointments of officers made by the directors;
o the names of the directors present at each directors' meeting and
of any committee of the directors;
o all resolutions and proceedings at all General Meetings of the
COMPANY, the holders of any class of SHARES in the COMPANY, the
directors and any committees of the directors;
and every director present at any directors' meeting or committee
meeting must sign his name in a book to be kept for that purpose.
147.2 If any such minute purports to be signed by the chairman of the meeting
at which the proceedings took place or by the chairman of the next
succeeding meeting this shall be conclusive evidence of the
proceedings.
148 AVAILABILITY OF RECORDS FOR INSPECTION AND NOTIFYING THE REGISTRAR OF
COMPANIES
148.1 The COMPANY must keep and make available for inspection as required by
the COMPANIES ACTS:
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o a register of the directors and SECRETARY which must include all
information required by the COMPANIES ACTS (and from time to time
the COMPANY must notify the registrar of companies of changes
to the register and the date of the change in the manner required
by the Acts);
o copies and memoranda of directors' service contracts with the
COMPANY and any of its SUBSIDIARIES;
o a register of directors' interests in SHARES or debentures
of the COMPANY or any other body corporate, being the COMPANY'S
SUBSIDIARY or holding company or a SUBSIDIARY of the COMPANY'S
holding company. This register must be produced and remain open
at each Annual General Meeting; and
o a register for recording information relating to interests in the
share capital of the COMPANY.
148.2 The directors must ensure that a register is kept in accordance with
the COMPANIES ACTS of all charges specifically affecting property of
the COMPANY and of all floating charges relating to assets or property
of the COMPANY, and the directors must comply with the COMPANIES ACTS
in relation to registration of charges.
WINDING UP
149 DIRECTORS' POWER TO PETITION
The directors can present a petition to the Court in the name and on
behalf of the COMPANY for the COMPANY to be wound up.
150 DISTRIBUTION OF ASSETS IN KIND
If the COMPANY is wound up (whether the liquidation is voluntary, under
supervision of the Court, or by the Court) the liquidator can, with the
authority of an extraordinary resolution passed by the SHAREHOLDERS and
any other sanction required by the COMPANIES ACTS, divide among the
SHAREHOLDERS the whole or any part of the assets of the COMPANY. This
applies whether the assets consist of property of one kind or different
kinds. For this purpose, the liquidator can place whatever value he
considers fair upon any property and decide how the division is carried
out as between SHAREHOLDERS or different classes of SHAREHOLDERS. The
liquidator can also, with the authority of an extraordinary resolution
passed by the SHAREHOLDERS and any other sanction required by the
COMPANIES ACTS, transfer any part of the assets to trustees upon any
trusts for the benefit of SHAREHOLDERS which the liquidator decides.
However no past or present SHAREHOLDER can be compelled to accept any
SHARES or other securities under this Article which carry a liability.
DESTROYING DOCUMENTS
151 DESTROYING DOCUMENTS
151.1 The COMPANY can destroy all:
o forms of transfer of SHARES, and documents sent to support a
transfer, and any other documents which were the basis for
making an entry on the REGISTER, after six years from the date of
registration;
<PAGE>
o dividend payment instructions and notifications of a change of
address or name, after two years from the date these were
registered; and
o cancelled share certificates, one year after the date they were
cancelled.
151.2 A document destroyed in accordance with Article 151.1 is conclusively
treated as having been a valid and effective document in accordance
with the COMPANY'S records relating to the document. Any action of the
COMPANY in dealing with the document in accordance with its terms
before it was destroyed is conclusively treated as properly taken.
151.3 ARTICLES 151.1 and 151.2 only apply to documents which are destroyed in
good faith and if the COMPANY has not been informed that keeping the
documents is relevant to any claim.
151.4 For documents relating to SHARES in UNCERTIFICATED FORM, the COMPANY
must also comply with any rules (as defined in the CREST REGULATIONS)
which limit its ability to destroy these documents.
151.5 This Article does not make the COMPANY liable if it:
o destroys a document earlier than referred to in Article 151.1; or
o would not be liable if this Article did not exist.
151.6 This Article applies whether a document is destroyed or disposed of in
any other manner.
INDEMNITY AND INSURANCE
152 INDEMNITY
152.1 So far as the COMPANIES ACTS allow, every director, SECRETARY or other
officer of the COMPANY shall be indemnified by the COMPANY out of its
own funds against all costs, charges, losses, expenses and liabilities
incurred by him:
o in performing or omitting to perform his duties; and/or
o in exercising or omitting to exercise his powers; and/or
o in purporting to do any of these things; and/or
o otherwise in relation to or in connection with his duties, powers
or office.
152.2 So far as the COMPANIES ACTS allow, every director, SECRETARY or other
officer of the COMPANY is exempted from any liability to the COMPANY
where that liability would be covered by the indemnity in Article
152.1.
153 INSURANCE
153.1 For the purpose of this Article each of the following is a RELEVANT
COMPANY:
o the COMPANY;
o any holding company of the COMPANY;
o any COMPANY in which the COMPANY or its holding company or any of
the predecessors of the COMPANY or of its holding company has or
had any interest, whether direct or indirect; and
<PAGE>
o any COMPANY which is in any way allied to or associated with the
COMPANY, or any SUBSIDIARY UNDERTAKING of the COMPANY or such
other COMPANY.
153.2 Without limiting Article 152 in any way, the directors can arrange for
the COMPANY to purchase and maintain insurance for or for the benefit
of any persons who are or were at any time:
o directors, officers or employees of any RELEVANT COMPANY; or
o trustees of any pension fund or employees' share scheme in which
employees of any RELEVANT COMPANY are interested.
This includes, for example, insurance against any liability incurred by
them for any act or omission:
o in performing or omitting to perform their duties; and/or
o in exercising or omitting to exercise their powers; and/or
o in claiming to do any of these things; and/or
o otherwise in relation to their duties, powers or offices.
SHARE WARRANTS
154 ISSUE OF SHARE WARRANTS
154.1 The COMPANY can issue SHARE WARRANTS which state that the bearer of the
SHARE WARRANT ("BEARER") is entitled to the SHARES specified in the
SHARE WARRANT. The COMPANY can only do this in a way which is allowed
under the COMPANIES ACTS and in Articles 154 to 161. SHARE WARRANTS can
provide for the payment of future dividends and other distributions
relating to the SHARES. Payment can be made by exchanging coupons which
can be attached to the SHARE WARRANTS, or in any other way which the
directors determine.
154.2 The BEARER of a SHARE WARRANT is entitled to the number of SHARES which
are specified in it. These SHARES can be transferred by one person
delivering the SHARE WARRANT to another.
154.3 Subject to Article 154.2, the provisions of the ARTICLES relating to
SHARE certificates and transferring SHARES do not apply to SHARE
WARRANTS.
154.4 Each SHARE WARRANT must be issued under the SEAL.
154.5 The directors can decide on the language and form of, and the number of
SHARES represented by, each SHARE WARRANT.
155 DIRECTORS CAN ACCEPT A CERTIFICATE INSTEAD OF A SHARE WARRANT
155.1 The directors can accept a certificate from the persons referred to in
Article 155.2 stating that they hold SHARE WARRANTS on behalf of
someone named in the certificate as proof of matters set out in such
certificate. The certificate will be in such form as the directors
decide (including details of the number of SHARES to which the SHARE
WARRANT relates).
155.2 The only people who may deliver a certificate to the COMPANY are the
ADR DEPOSITARY or any bank or agent which has been appointed by the
COMPANY. For the purposes of Articles 154 to 160, the COMPANY can treat
the deposit of the certificate as though the SHARE WARRANT itself had
been deposited at the TRANSFER OFFICE.
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155.3 As long as the certificate is in a form agreed by the directors, the
COMPANY does not need to make any further enquiry into the accuracy of
the information contained in the certificate.
156 REQUESTING A SHARE WARRANT
156.1 A SHARE WARRANT will only be issued if a SHAREHOLDER requests in
writing that a SHARE WARRANT is issued for some or all of the SHARES
which are registered in his name.
156.2 The request must be addressed to the directors at the TRANSFER OFFICE.
The directors can specify the form of the request, and can require that
evidence is sent with the request to prove the identity of the person
making the request and his right to the SHARES. The directors do not
have to agree to this request.
156.3 Where a SHAREHOLDER requests that SHARE WARRANTS are issued in relation
to SHARES registered in his name, and there are share certificates in
respect of those SHARES, a SHARE WARRANT will only be issued once the
share certificates have been delivered to the TRANSFER OFFICE for
cancellation.
156.4 A person who requests a SHARE WARRANT (including a person requesting a
SHARE WARRANT in the circumstances described in Article 157) is
responsible (and will re-imburse the COMPANY) for all and any stamp
duties, stamp duty reserve tax, bearer instrument duty, taxes, charges,
fees, interest and penalties payable in connection with the issue of
the SHARE WARRANTS. This Article 156.4 applies unless the person
requesting the SHARE WARRANT agrees otherwise with the COMPANY.
157 REPLACING SHARE WARRANTS
157.1 If a SHARE WARRANT is damaged or defaced, the BEARER can request a new
one, once he returns the damaged or defaced SHARE WARRANT to the
directors at the TRANSFER OFFICE. Once any payments of the types
described in Article 156.4 are made (if any), a new SHARE WARRANT will
be issued.
157.2 If a SHARE WARRANT is said to have been lost, stolen or destroyed, the
directors can issue a replacement (although they do not have to do so).
The directors can require satisfactory evidence of the loss, theft or
destruction, an indemnity, the payment of any exceptional out of pocket
expenses, and payments of the types described in Article 156.4 before
issuing a replacement.
157.3 The Bearer can ask the directors to cancel his existing SHARE WARRANT
and replace it with two (or more) SHARE WARRANTS which together
represent the same number of SHARES which the original single SHARE
WARRANT represented. The directors do not have to comply with this
request. If they do, the BEARER will have to surrender his original
SHARE WARRANT and can be required by the directors to make any payments
of the types described in Article 156.4 before the new SHARE WARRANTS
are issued.
158 RIGHTS OF THE BEARER
158.1 The BEARER (or a person who has deposited his SHARE WARRANT in
accordance with Article 158.2 or if the directors so decide, Article
155.2) shall be entitled to the same rights and be subject to the same
obligations as those to which he would be entitled or subject if he
were the registered holder of the SHARES to which the SHARE WARRANT
relates. This is subject to the provisions of Articles 154 to 161.
<PAGE>
158.2 Where a BEARER deposits his SHARE WARRANT, together with a written
declaration giving his name and address, at the TRANSFER OFFICE (or
some other place specified by the directors) he has certain rights at
any General Meeting provided that such SHARE WARRANT is deposited at
least 48 hours in advance of such meeting. For as long as the SHARE
WARRANT remains so deposited, the person who deposited it will have the
following rights as if he were the registered holder from the time of
deposit of the SHARES specified in the SHARE WARRANT at a General
Meeting:
o the right to sign a form requiring a General Meeting;
o the right to give notice of his intention to submit a resolution
at a General Meeting;
o the right to attend, speak and vote, appoint a proxy and exercise
the other rights of a SHAREHOLDER at a General Meeting.
158.3 Any SHARE WARRANT which is deposited in accordance with Article 158.2
must remain deposited until the end of the General Meeting at which the
person who deposited the SHARE WARRANT desires to attend or be
represented.
158.4 If a person presents a SHARE WARRANT at the TRANSFER OFFICE, the
COMPANY is entitled to assume that this person is the owner of the
SHARE WARRANT. The COMPANY can pay dividends or moneys relating to the
SHARES specified in the SHARE WARRANT which are due to this person
either to such person or to an account specified by him. If the COMPANY
does this, it shall have performed its obligation to pay that dividend
or those moneys.
159 BEARERS OF SHARE WARRANTS PARTICIPATING IN SECURITIES OFFERS
159.1 In the case of a SECURITIES OFFER, there is no need to contact any
Bearer individually. Instead, all the COMPANY need do is advertise the
details of the SECURITIES OFFER in a leading UNITED KINGDOM national
daily newspaper (and any other newspapers the directors decide on).
159.2 If, following the publication of the advertisement referred to above,
the BEARER deposits the SHARE WARRANT (or, if appropriate, the coupon
attached to the SHARE WARRANT) at the TRANSFER OFFICE (or some other
place mentioned in the advertisement), within the time limit set out in
the SECURITIES OFFER, he shall have the same right to participate in
the SECURITIES OFFER as if he were the registered holder of the SHARES
specified in the SHARE WARRANT.
159.3 For the purposes of this Article, a SECURITIES OFFER means an offer of
SHARES, securities or debentures to SHAREHOLDERS or any class of
SHAREHOLDERS, or a proposed issue of SHARES pursuant to Article 134.
160 COMMUNICATIONS WITH BEARERS OF SHARE WARRANTS
160.1 In the case of any communication (for example, a notice of General
Meeting, a circular or annual report) with SHAREHOLDERS, there is no
need for the COMPANY to contact any BEARER individually. Instead, all
the COMPANY need do is advertise the communication in a leading UNITED
KINGDOM national daily newspaper (and any other newspapers the
directors decide on), giving an address where copies of the
communication may be obtained by the BEARER.
160.2 The COMPANY must communicate with the BEARER in a different way, if the
LONDON STOCK EXCHANGE requires this.
<PAGE>
161 ISSUING SHARES TO WHICH THE SHARE WARRANT RELATES
162.1 The BEARER can ask to be registered as a SHAREHOLDER (or that another
person be so registered) in respect of all or any of the SHARES
specified in the SHARE WARRANT. In order to do so he must deposit at
the TRANSFER OFFICE (or another place specified by the directors):
o the SHARE WARRANT; and
o a signed declaration in a form agreed by the directors which sets
out the names and addresses of the persons, and the numbers of
SHARES, in whose name he wishes such SHARES to be registered.
161.2 The COMPANY will comply with a request made in accordance with Article
161.1 only upon the payment (or reimbursement) by the BEARER of all and
any stamp duties, stamp duty reserve tax, bearer instrument duty,
taxes, charges, fees, interest and penalties payable in connection with
the issue of the SHARES. The COMPANY may, however, agree that any such
taxes or costs do not have to be paid by the BEARER.
161.3 If the COMPANY complies with a request made in accordance with Article
161.1, the person named in the declaration will be entitled to have his
name entered as a member in the REGISTER in respect of the SHARES
specified in the declaration and to receive a share certificate for
them.
161.4 If the declaration does not deal with all the SHARES to which the SHARE
WARRANT relates, a new SHARE WARRANT for the remaining SHARES will be
issued, without charge, to the person who deposited the old SHARE
WARRANT. The new SHARE WARRANT will only be issued upon the
cancellation of the old SHARE WARRANT.
ADR DEPOSITARY
162 ADR DEPOSITARY CAN APPOINT PROXIES
162.1 The ADR DEPOSITARY can appoint more than one person to be its proxy. As
long as the appointment complies with the requirements in Article
162.2, the appointment can be made in any way and on any terms which
the ADR DEPOSITARY thinks fit. Each person appointed in this way is
called an APPOINTED PROXY.
162.2 The appointment must set out the number of SHARES in relation to which
an APPOINTED PROXY is appointed. This number is called the APPOINTED
NUMBER. The APPOINTED NUMBERS of all APPOINTED PROXIES appointed by the
ADR DEPOSITARY, when added together, must not be more than the number
of DEPOSITARY SHARES (as calculated in Article 162.3).
162.3 The DEPOSITARY SHARES attributable to the ADR DEPOSITARY consist of the
total of the number of SHARES:
o registered in the name of the ADR DEPOSITARY;
o represented by SHARE WARRANTS which have been deposited by the
ADR DEPOSITARY with the COMPANY in accordance with Article 158;
and
o represented by SHARE WARRANTS which are set out in a certificate
from the ADR DEPOSITARY accepted by the directors in accordance
with Article 155.
<PAGE>
163 THE ADR DEPOSITARY MUST KEEP A PROXY REGISTER
163.1 The ADR DEPOSITARY must keep a register of the names and addresses of
all the APPOINTED PROXIES. This is called the PROXY REGISTER. The PROXY
REGISTER will also set out the APPOINTED NUMBER of SHARES of each
APPOINTED PROXY. This can be shown by setting out the number of
AMERICAN DEPOSITARY RECEIPTS which each APPOINTED PROXY holds and
stating that the APPOINTED NUMBER of SHARES can be ascertained by
multiplying the said number of AMERICAN DEPOSITARY RECEIPTS by such
number which for the time being is equal to the number of SHARES which
any one AMERICAN DEPOSITARY RECEIPT represents.
163.2 The ADR DEPOSITARY must let anyone whom the directors nominate inspect
the PROXY REGISTER during usual business hours on a WORKING DAY. The
ADR DEPOSITARY must also provide, as soon as possible, any information
contained in the PROXY REGISTER if it is demanded by the COMPANY or its
agents.
164 APPOINTED PROXIES CAN ONLY ATTEND GENERAL MEETINGS IF PROPERLY
APPOINTED
An Appointed Proxy may only attend a General Meeting if he provides the
COMPANY with written evidence of his appointment by the ADR DEPOSITARY
for that General Meeting. This must be in a form agreed between the
directors and the ADR DEPOSITARY.
165 RIGHTS OF APPOINTED PROXIES
Subject to the COMPANIES ACTS and these ARTICLES and so long as the
DEPOSITARY SHARES are sufficient to include an APPOINTED PROXY'S
APPOINTED NUMBER:
o at a General Meeting which an APPOINTED PROXY is entitled to
attend, he is entitled to the same rights and has the same
obligations in relation to his APPOINTED NUMBER of SHARES as if
the ADR DEPOSITARY was the registered holder of such SHARES and
he had been validly appointed in accordance with Articles 76, 77
and 78 by the ADR DEPOSITARY as its proxy in relation to those
SHARES; and
o an APPOINTED PROXY can himself appoint another person to be his
proxy in relation to his APPOINTED NUMBER of SHARES, as long as
the appointment is made and deposited in accordance with Articles
76, 77 and 78 and, if it is, the provisions of these ARTICLES
will apply to such an appointment as though the APPOINTED PROXY
was the registered holder of such SHARES and the appointment was
made by him in that capacity.
166 SENDING INFORMATION TO AN APPOINTED PROXY
The COMPANY can send to an APPOINTED PROXY at his address in the PROXY
REGISTER all the same documents which are sent to SHAREHOLDERS.
167 THE COMPANY CAN PAY DIVIDENDS TO AN APPOINTED PROXY
The COMPANY can pay to an APPOINTED PROXY at his address in the PROXY
REGISTER all dividends or other moneys relating to the APPOINTED
PROXY'S APPOINTED NUMBER of SHARES instead of paying this amount to the
ADR DEPOSITARY. If the COMPANY does this, it will not have any
obligation to make this payment to the ADR DEPOSITARY as well.
168 THE PROXY REGISTER MAY BE FIXED AT A CERTAIN DATE
168.1 In order to determine which persons are entitled as APPOINTED PROXIES
to:
o exercise the rights conferred by Article 165;
<PAGE>
o receive documents sent pursuant to Article 166; and
o be paid dividends pursuant to Article 167
and the APPOINTED NUMBER of SHARES in respect of which a person is to
be treated as having been appointed as an APPOINTED PROXY for such
purpose, the ADR DEPOSITARY may determine that the APPOINTED PROXIES
who are entitled are the persons entered in the PROXY REGISTER at the
close of business on a date (a "RECORD DATE") determined by the ADR
DEPOSITARY in consultation with the COMPANY.
168.2 When a RECORD DATE is determined for a particular purpose:
o the APPOINTED NUMBER of SHARES in respect of an APPOINTED PROXY
will be treated as the number appearing against his name in the
PROXY REGISTER as at the close of business on the RECORD DATE;
o this can be shown by setting out the number of AMERICAN
DEPOSITARY RECEIPTS which each APPOINTED PROXY holds and stating
that the number of SHARES can be ascertained by multiplying the
said number of AMERICAN DEPOSITARY RECEIPTS by such number which
for the time being is equal to the number of SHARES which any one
AMERICAN DEPOSITARY RECEIPT represents; and
o changes to entries in the PROXY REGISTER after the close of
business on the RECORD DATE will be ignored in determining the
entitlement of any person for the purpose concerned.
169 THE NATURE OF AN APPOINTED PROXY'S INTEREST
Except as required by the COMPANIES ACTS, no APPOINTED PROXY will be
recognised by the COMPANY as holding any interest in SHARES upon any
trust. Except for recognising the rights given in relation to General
Meetings by appointments made by APPOINTED PROXIES pursuant to Article
165, the COMPANY is entitled to treat any person entered in the PROXY
REGISTER as an APPOINTED PROXY as the only person (other than the ADR
DEPOSITARY) who has any interest in the SHARES in respect of which the
APPOINTED PROXY has been appointed.
170 VALIDITY OF THE APPOINTMENT OF APPOINTED PROXIES
170.1 If any question arises as to whether any particular person or persons
has or have been validly appointed to vote (or exercise any other
right) in respect of any SHARES (for example because the total number
of SHARES in respect of which appointments are recorded in the PROXY
REGISTER is more than the number of DEPOSITARY SHARES) this question
will, if it arises at or in relation to a General Meeting be determined
by the chairman of the General Meeting. His decision (which can include
declining to recognise a particular appointment or appointments as
valid) will, if made in good faith, be final and binding on all persons
interested.
170.2 If a question of the type described in Article 170.1 arises in any
circumstances other than at or in relation to a General Meeting, the
question will be determined by the directors. Their decision (which can
include declining to recognise a particular appointment or appointments
as valid) will also, if made in good faith, be final and binding on all
persons interested.
<PAGE>
GLOSSARY
ABOUT THE GLOSSARY
This glossary is to help readers understand the COMPANY'S Articles of
Association. Words are explained as they are used in the ARTICLES - they might
mean different things in other documents. The glossary is not legally part of
the ARTICLES, and it does not affect their meaning. The definitions are intended
to be a general guide - they are not precise.
ABROGATE If the special rights of a SHARE are abrogated, they are cancelled or
withdrawn.
ACCRUE If interest is accruing, it is running or mounting up, day by day.
ADJOURNED In relation to a SHAREHOLDERS' MEETING, means that the meeting has
come to an end for the time being, to be continued at a later time or day, at
the same or a different place and adjourned and adjourn shall be construed
accordingly.
AGENT A person who has been appointed to act for another person.
ALLOT When new SHARES are allotted, they are set aside for the person they are
intended for. This will normally be after the person has agreed to pay for a new
SHARE, or has become entitled to a new SHARE for any other reason. As soon as a
SHARE is allotted, that person gets the right to have his name put on the
register of SHAREHOLDERS. When he has been registered, the SHARE has also been
issued.
ALLOTTEE A person to whom a SHARE is allotted (see renunciation).
ASSET Any property of any description which is of any value to its owner.
ATTORNEY An attorney is a person who has been appointed to act for another
person in a particular way. The person is appointed by a formal document, called
a power of attorney.
AUTOMATICALLY ENTITLED TO A SHARE BY LAW In some situations, a person will be
entitled to have SHARES which are registered in somebody else's name registered
in his own name. Or he can require the SHARES to be transferred to another
person. When a SHAREHOLDER dies, or the sole survivor of joint SHAREHOLDERS
dies, his personal representatives have this right. If a SHAREHOLDER is made
bankrupt, his trustee in bankruptcy has the right.
BENEFICIAL INTEREST A person on whose behalf or for whose benefit a trustee
holds SHARES has a beneficial interest in those SHARES.
BROKERAGE Commission which is paid to a broker by a COMPANY issuing SHARES,
where the broker's clients have applied for SHARES.
CALL A call to pay money which is due on SHARES which has not yet been paid.
This happens if the COMPANY issues SHARES which are partly paid, where money
remains to be paid to the COMPANY for the SHARES. The money which has not been
paid can be "called" for. If all the money to be paid on a SHARE has been paid,
the SHARE is called a fully paid SHARE.
CAPITALISE To convert some or all of the reserves of a COMPANY into capital
(such as SHARES).
CAPITAL REDEMPTION RESERVE A reserve of funds which a COMPANY may have to set up
to ensure that the COMPANY'S capital base remains the same when SHARES are
redeemed or bought back. It is equivalent to the amount by which the COMPANY'S
issued share capital is reduced by the redemption or purchase.
<PAGE>
CASUAL VACANCY A vacancy amongst the directors which occurs by reason of the
death, resignation or disqualification of a director, or from the failure of an
elected director to accept his appointment, or for any other reason except the
retirement of a director in accordance with the ARTICLES.
CHARGE See lien and charge.
COMPANY REPRESENTATIVE If a COMPANY owns SHARES, it can appoint a COMPANY
REPRESENTATIVE to attend a SHAREHOLDERS' MEETING to speak and vote for it.
CONSOLIDATE When SHARES are consolidated, they are combined with other SHARES.
For example, every three (poUND)1 shares might be consolidated into one new
(Pound)3 SHARE.
CUMULATIVE DIVIDENDS If a dividend which is cumulative cannot be paid in one
year because the COMPANY does not have enough profits to cover the payment, the
SHAREHOLDER has the right to receive the dividend in a future year, when the
COMPANY has enough profits to pay the dividend. Compare this with a
non-cumulative dividend.
DEBENTURE A typical debenture is a type of long-term borrowing by a COMPANY. The
loan usually has to be repaid at a fixed date in the future, and carries a fixed
rate of interest.
DECLARE Generally, when a final dividend is declared, it becomes due to be paid.
DIVIDEND ARREARS Any dividend arrears. This includes any dividends on SHARES
with cumulative rights which could not be paid, but which have been carried
forward.
DIVIDEND WARRANT A dividend warrant is similar to a cheque for a dividend.
DOCUMENTS OF TITLE The documents which show that a person owns something (for
example, a share certificate).
EX-DIVIDEND When a SHARE goes "ex-dividend", a person who buys it will not be
entitled to the dividend which has been declared shortly before he bought it.
When a SHARE has gone "ex-dividend", the seller is entitled to this dividend,
even though it will be paid after he has sold his SHARE.
EXECUTED A document is executed when it is signed, or sealed or made valid in
some other way.
EXERCISE When a power is exercised, it is put to use.
EXTRAORDINARY RESOLUTION A decision reached by a majority of at least 75 per
cent. of votes cast. The COMPANIES ACT requires extraordinary resolutions to be
passed in certain situations.
FORFEIT When a SHARE is forfeited it is taken away from the SHAREHOLDER and
becomes the property of the COMPANY which can do with it as it likes. This
process is called "forfeiture". This can happen if a call on a partly-paid SHARE
is not paid on time.
FULLY-PAID SHARES When all of the money which is due to the COMPANY for a SHARE
has been paid, a SHARE is called a fully paid SHARE.
GOOD TITLE If a person has good title to a SHARE, he owns it outright.
HOLDING COMPANY A COMPANY which controls another COMPANY (for example by owning
a majority of its SHARES) is called the holding company of that other COMPANY.
The other COMPANY is the SUBSIDIARY of the holding company.
INDEMNITY If a person gives another person an indemnity, he promises to make
good any losses or damage which the other might suffer. The person who gives the
indemnity is said to "indemnify" the other person.
<PAGE>
IN ISSUE See issue.
INSTRUMENTS Formal legal documents.
ISSUE When a share has been issued, everything has been done to make the
SHAREHOLDER the owner of the SHARE. In particular, the SHAREHOLDER'S name has
been put on the REGISTER of SHAREHOLDERS. Existing SHARES which have been issued
are "in issue".
LIABILITIES Debts and other obligations.
LIABLE JOINTLY AND SEVERALLY Where more than one person is liable jointly and
severally it means that any one of them may be sued, or they can all be sued
together.
LIEN AND CHARGE Where the COMPANY has a lien and charge over SHARES, it can take
the dividends, and any other payments relating to the SHARES which it has a
charge over, or it can sell the SHARES, to repay the debt and so on.
MEMBERS means SHAREHOLDERS.
NEGOTIABLE INSTRUMENT A document such as a cheque, which can be freely
transferred from one person to another.
NOMINAL VALUE The nominal value of the SHARE. The nominal value of the 5p
ORDINARY SHARES is 5p. This value is shown on the share certificate for a SHARE,
if there is one. When the COMPANY issues new SHARES this can be for a price
which is at a premium to the nominal value. When SHARES are bought and sold on
the stock market this can be for more, or less, than the nominal value. The
nominal value is sometimes also called the "par value".
NON-CUMULATIVE DIVIDENDS If a dividend which is non-cumulative cannot be paid in
one year because the COMPANY does not have enough profits available to cover the
payment, the SHAREHOLDER does not have the right to receive the dividend in a
future year. This is the opposite to a cumulative dividend.
OBJECTS OF A COMPANY The business activities that the COMPANY is authorised to
carry on. The COMPANY'S objects are set out in Clause 4 of its MEMORANDUM.
OFFICE COPY An exact copy of an official document, supplied by the office which
holds, or issued, the original.
ORDINARY RESOLUTION A decision reached by a simple majority of votes - that is
by more than 50 per cent. of the votes cast.
PAR VALUE See nominal value.
PARTLY PAID SHARES If any money remains to be paid on a SHARE, it is said to be
partly paid. The unpaid money can be "called" for.
PERSONAL REPRESENTATIVES A person who is entitled to deal with the property
("the estate") of a person who has died. If the person who has died left a valid
will, the will appoints "executors" who are personal representatives. If the
person died without a will, the courts will appoint one or more "administrators"
to be the personal representatives.
POLL A poll vote is usually a card vote but to the extent permitted by the
COMPANIES ACTS may be an electronic vote. On a poll vote, the number of votes
which a SHAREHOLDER has will depend on the number of SHARES which he owns. An
ORDINARY SHAREHOLDER has one vote for each SHARE he owns. A poll vote is
different to a show of hands vote, where each person who is entitled to vote has
just one vote, however many SHARES he owns.
<PAGE>
POWER OF ATTORNEY A formal document which legally appoints one or more persons
to act on behalf of another person.
PRE-EMPTION RIGHTS The right of some SHAREHOLDERS which is given by the
COMPANIES ACT to be offered a proportion of certain classes of newly issued
SHARES and other securities before they are offered to anyone else. This offer
must be made on terms which are at least as favourable as the terms offered to
anyone else.
PREMIUM If the COMPANY issues a new SHARE for more than its nominal value (for
example because the market value is more than the nominal value), the amount
above the nominal value is the premium.
PROXY A proxy is a person who is appointed by a SHAREHOLDER to attend a
SHAREHOLDERS' MEETING and vote for that SHAREHOLDER. A proxy is appointed by
using a proxy form. A proxy does not have to be a SHAREHOLDER. At a
SHAREHOLDERS' MEETING a proxy can vote on a poll and, if the ARTICLES permit, he
can also vote on a show of hands and speak.
PROXY FORM A form which a SHAREHOLDER uses to appoint a proxy to attend a
SHAREHOLDERS' MEETING and vote for him. The proxy form must be delivered to the
COMPANY before the meeting to which it relates.
QUORUM The minimum number of SHAREHOLDERS or directors who must be present
before a meeting can start. When this number is reached, the meeting is said to
be "quorate".
RANK & RANKING When either capital or income is distributed to SHAREHOLDERS, it
is paid out according to the rank (or ranking) of the SHARES. For example, a
SHARE which ranks before (or ahead of) another SHARE in sharing in the COMPANY'S
income is entitled to have its dividends paid first, before any dividends are
paid on SHARES which rank behind (or after) it. If there is not enough income to
pay dividends on all SHARES, the available income must be used first to pay
dividends on SHARES which rank ahead, and then to SHARES which rank behind. The
same applies for repayments of capital. Capital must be paid first to SHARES
which rank ahead in sharing in the COMPANY'S capital, and then to SHARES which
rank behind. The COMPANY'S FIXED RATE SHARES rank ahead of its ORDINARY SHARES.
Where certain SHARES rank equally with other SHARES, both types of SHARES have
the same rights as each other.
RECOGNISED CLEARING HOUSE A "clearing house" which has been authorised to carry
on business by the UK authorities. A clearing house is a central computer system
for settling transactions between members of the clearing house.
RECOGNISED INVESTMENT EXCHANGE An "investment exchange" which has been
officially recognised by the UK authorities. An investment exchange is a place
where investments, such as SHARES, are traded. The LONDON STOCK EXCHANGE is a
recognised investment exchange.
REDEEM AND REDEMPTION When a SHARE is redeemed, it is effectively bought back by
the COMPANY in return for a sum of money (the "redemption price") which was
fixed before the SHARE was issued. This process is called redemption. A SHARE
which can be redeemed is called a "redeemable" SHARE.
RELEVANT SYSTEM This is a term used in the CREST REGULATIONS for a
computer-based system which allows SHARES without share certificates to be
transferred without using transfer forms. The CREST system for paperless share
dealing is a "RELEVANT SYSTEM".
<PAGE>
RENUNCIATION Where a SHARE has been allotted, but no one has been entered on the
share register as the holder of the SHARE, it can be renounced by the allottee
to another person. This transfers the right to be registered as the holder of
the share to another person. This process is called renunciation.
REQUISITION A MEETING A formal process which SHAREHOLDERS can use to call a
SHAREHOLDERS' MEETING. Generally speaking the SHAREHOLDERS who want to call a
meeting must hold at least 10 per cent of the issued SHARES.
RESERVE FUND OR RESERVES A fund which has been set aside in the accounts of a
COMPANY. Profits which are not paid out to SHAREHOLDERS as dividends, or used up
in some other way, are held in a reserve fund by the COMPANY. The capital
redemption reserve and SHARE premium account are also reserve funds.
REVOKE To withdraw, or cancel.
RIGHTS ISSUE A way by which COMPANIES raise extra share capital. Usually the
existing SHAREHOLDERS will be offered the chance to buy a certain number of new
SHARES, depending on how many they already have. For example, SHAREHOLDERS may
be offered the chance to buy one new SHARE for every four they already have.
SECURITIES All SHARES, bonds and other investment instruments issued by a
COMPANY which entitle the holder to a SHARE in the profits or assets of that
COMPANY, to receive a cash payment from a COMPANY or to subscribe for such a
security.
SECURITIES SEAL A seal used to stamp the COMPANY'S securities as evidence that
the COMPANY has issued them. The COMPANY'S SECURITIES SEAL is like the COMPANY'S
COMMON SEAL but with the addition of the word "securities".
SHARE PREMIUM ACCOUNT If a new SHARE is issued by the COMPANY for more than its
nominal value (generally because the market value is more than the nominal
value) then the amount above the nominal value is the premium, and the total of
these premiums is held in a reserve fund (which cannot be used to pay dividends)
called the share premium account.
SHOW OF HANDS A SHAREHOLDER raises his hand to vote at a SHAREHOLDERS' MEETING
(unless there is a poll). Each person who is entitled to vote has just one vote,
however many SHARES he holds.
SPECIAL NOTICE This term is defined in Section 379 COMPANIES ACT 1985. Broadly,
if special notice of a resolution is required by the COMPANIES ACTS, the
resolution is not valid unless the COMPANY has been told about the intention to
propose it at least 28 days before the SHAREHOLDERS' MEETING at which it is
proposed (although in certain circumstances the meeting can be on a date less
than 28 days from the date of the notice).
SPECIAL RESOLUTION A decision reached by a majority of at least 75 per cent of
votes cast. SHAREHOLDERS must be given at least 21 days' notice of any special
resolution.
SPECIAL RIGHTS These are the RIGHTS of a particular class of SHARES, as distinct
from RIGHTS which apply to all SHARES generally. Typical examples of special
rights are where the SHARES rank, their rights to sharing in income and assets
and voting rights.
STATUTORY DECLARATION A formal way of declaring something in writing. Particular
words and formalities must be used - these are laid down by the Statutory
Declarations Act of 1835.
STOCK When SHARES are converted into stock the holder's interest in the COMPANY
is expressed by reference to a sum of money divided into transferable units. For
example, the interest of a
<PAGE>
SHAREHOLDER with one hundred (pound)1 shares might be converted into (pound)100
worth of stock transferable in units of (pound)1 each.
SUBDIVIDING SHARES When SHARES are subdivided they are split into SHARES which
have a smaller nominal value. For example, a (pound)1 share might be subdivided
into two 50p shares.
SUBJECT TO Means that something else has priority, or prevails, or must be taken
into account. When a statement is subject to another statement this means that
the first statement must be read in the light of the other statement, which will
prevail if there is any conflict.
SUBORDINATE Where a right or interest is subordinated to something else, it
ranks behind it.
SUBSCRIBE FOR SHARES To agree to take new SHARES in a COMPANY (usually for a
cash payment).
SUBSCRIBERS TO SHARES The people who first acquire the SHARES.
SUBSIDIARY A COMPANY which is controlled by another COMPANY (for example because
the other COMPANY owns a majority of its SHARES) is called a SUBSIDIARY of that
COMPANY.
SUBSIDIARY UNDERTAKING This is a term used by the COMPANIES ACT. It is a wider
definition than SUBSIDIARY. Generally speaking it is a COMPANY which is
controlled by another COMPANY because the other COMPANY:
o has a majority of the votes in the COMPANY either alone, or acting
with others;
o is a SHAREHOLDER who can appoint or remove a majority of the
directors; or
o can exercise dominant influence over the COMPANY because of
anything in the COMPANY'S MEMORANDUM or ARTICLES, or because of a
certain kind of contract.
TAKEOVER OFFER An offer to acquire all the SHARES, or all the SHARES of any
class, in a COMPANY (except SHARES already held by the person making the offer).
The terms of the offer must be the same for all the SHARES to which the offer
relates. This is defined in more detail in the COMPANIES ACT 1985.
TRUSTEES People who hold property of any kind for the benefit of one or more
other people under a kind of arrangement which the law treats as a "trust". The
people whose property is held by the trustees are called the beneficiary.
UNDERWRITE A person who agrees to buy new SHARES if they are not bought by other
people underwrites the share offer.
UNINCORPORATED ASSOCIATIONS Associations, partnerships, societies and other
bodies which the law does not treat as a separate legal person to their members.
WARRANT See the definition of dividend warrant.
WIDER-RANGE INVESTMENTS The law restricts the investments which some trustees
can invest in. Where this restriction applies, the trustees can invest up to
three quarters of their funds in wider-range investments. These are, generally
speaking, SHARES which are quoted on the LONDON STOCK EXCHANGE, and which are
earning dividends.
WIND UP The formal process to put an end to a COMPANY. When a COMPANY is wound
up its assets are distributed. The assets go first to creditors, and then to
SHAREHOLDERS. SHARES which rank first in sharing in the COMPANY'S assets will
receive any funds which are left over before any SHARES which rank after (or
behind) them.
Exhibit ___
================================================================================
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
(FORMERLY KNOWN AS VODAFONE GROUP PUBLIC LIMITED COMPANY)
AND
AIRTOUCH COMMUNICATIONS, INC.
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF OCTOBER 12, 1988
AS AMENDED AND RESTATED AS OF DECEMBER 26, 1989, AS
FURTHER AMENDED AND RESTATED AS OF SEPTEMBER 16, 1991 AND
AS FURTHER AMENDED AND RESTATED AS OF JUNE 30, 1999
================================================================================
<PAGE>
ARTICLE I. DEFINITIONS........................................................2
SECTION 1.01 AMERICAN DEPOSITARY SHARES.......................................2
SECTION 1.02 BENEFICIAL OWNER.................................................2
SECTION 1.03 COMMISSION.......................................................2
SECTION 1.04 CUSTODIAN........................................................2
SECTION 1.05 DELIVER; EXECUTE; REGISTER; SURRENDER; TRANSFER; CANCEL..........3
SECTION 1.06 DEPOSIT AGREEMENT................................................3
SECTION 1.07 DEPOSITARY.......................................................3
SECTION 1.08 DEPOSITED SECURITIES.............................................3
SECTION 1.09 DIRECT REGISTRATION RECEIPT......................................3
SECTION 1.10 DIRECT REGISTRATION SYSTEM.......................................3
SECTION 1.11 DOLLARS; US$; P; PENCE...........................................3
SECTION 1.12 FOREIGN REGISTRAR................................................4
SECTION 1.13 ISSUER...........................................................4
SECTION 1.14 OWNER............................................................4
SECTION 1.15 RECEIPT REGISTER.................................................4
SECTION 1.16 RECEIPTS.........................................................4
SECTION 1.17 REGISTRAR........................................................4
SECTION 1.18 SECURITIES ACT OF 1933...........................................4
SECTION 1.19 SHARES...........................................................4
SECTION 1.20 TAX TREATY PAYMENTS..............................................5
ARTICLE II. 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...............................7
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS.......8
SECTION 2.05 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES...................8
SECTION 2.06 LIMITATIONS ON EXECUTION, DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS......................................................9
SECTION 2.07 LOST RECEIPTS, ETC..............................................10
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS............10
SECTION 2.09 PRE-RELEASE OF RECEIPTS.........................................11
ARTICLE III. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL 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 OF SHARES.................................13
SECTION 3.04 DISCLOSURE OF INTERESTS.........................................13
ARTICLE IV. THE DEPOSITED SECURITIES.........................................14
SECTION 4.01 CASH DISTRIBUTIONS..............................................14
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS.................14
SECTION 4.03 DISTRIBUTIONS IN SHARES.........................................15
SECTION 4.04 RIGHTS..........................................................15
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY..................................17
SECTION 4.06 FIXING OF RECORD DATE...........................................18
SECTION 4.07 VOTING OF DEPOSITED SECURITIES..................................18
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES..........................19
SECTION 4.09 REPORTS.........................................................20
SECTION 4.10 LISTS OF OWNERS.................................................20
SECTION 4.11 WITHHOLDING.....................................................20
- 1 -
<PAGE>
ARTICLE V. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.....................21
SECTION 5.01 MAINTENANCE OF OFFICE AND RECEIPT REGISTER BY THE
DEPOSITARY......................................................21
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR
THE ISSUER......................................................22
SECTION 5.03 OBLIGATIONS OF THE ISSUER, THE DEPOSITARY AND THE CUSTODIAN.....22
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY............................................23
SECTION 5.05 THE CUSTODIAN...................................................24
SECTION 5.06 NOTICES AND REPORTS.............................................24
SECTION 5.07 ISSUANCE OF ADDITIONAL SHARES, ETC..............................25
SECTION 5.08 INDEMNIFICATION.................................................25
SECTION 5.09 CHARGES OF DEPOSITARY...........................................26
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS...............................27
SECTION 5.11 COMPLIANCE WITH U.S. SECURITIES LAWS............................27
ARTICLE VI. AMENDMENT AND TERMINATION........................................27
SECTION 6.01 AMENDMENT.......................................................27
SECTION 6.02 TERMINATION.....................................................28
ARTICLE VII. MISCELLANEOUS...................................................28
SECTION 7.01 COUNTERPARTS....................................................28
SECTION 7.02 NO THIRD PARTY BENEFICIARIES....................................29
SECTION 7.03 SEVERABILITY....................................................29
SECTION 7.04 OWNERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT.........29
SECTION 7.05 NOTICES.........................................................29
SECTION 7.06 GOVERNING LAW...................................................30
SECTION 7.07 AIRTOUCH AS A PARTY TO THE DEPOSIT AGREEMENT....................30
- 2 -
<PAGE>
DEPOSIT AGREEMENT dated as of October 12, 1988, as amended and
restated as of December 26, 1989, as further amended and restated as of
September 16, 1991 and as further amended and restated as of June 30, 1999 among
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY (formerly known as VODAFONE GROUP
PUBLIC LIMITED COMPANY), a corporation organized under the laws of England and
Wales (herein called the Issuer), AIRTOUCH COMMUNICATIONS, INC., a Delaware
corporation and a subsidiary of the Issuer ("AirTouch"), THE BANK OF NEW YORK, a
New York banking corporation, as depositary, and any successor depositary
hereunder (herein called the Depositary), and all Owners and Beneficial Owners
from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Issuer, the Depositary and the Owners of American
Depositary Receipts are parties to the Deposit Agreement dated as of October 12,
1988, as amended and restated as of December 26, 1989, and as further amended
and restated as of September 16, 1991;
WHEREAS, the Issuer and the Depositary may, pursuant to Section 6.01
of the Deposit Agreement, amend the Deposit Agreement and the Form of Receipt
appearing as Exhibit A to the Deposit Agreement, at any time and from time to
time by agreement between the Issuer and the Depositary in any respect which
they may deem necessary or desirable; and
WHEREAS, under Section 6.01 of the Deposit Agreement every Owner of a
Receipt at the time the amendment 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;
WHEREAS, this agreement amends and restates the existing deposit
agreement pursuant to Section 6.01 hereof; and
WHEREAS, the Issuer desires to provide, as hereinafter set forth in
this Amended and Restated Deposit Agreement, for the deposit of Ordinary Shares
(herein called Shares) of the Issuer from time to time with the Depositary or
with the London office of the Depositary (herein called the Custodian, which
term includes any successor custodian hereunder), as agent of the Depositary for
the purposes set forth in this Amended and Restated Deposit Agreement, for the
creation of American Depositary Shares representing the Shares so deposited and
for the execution and delivery of American Depositary Receipts in respect of the
American Depositary Shares; and
WHEREAS, the American Depositary Receipts issued in certificated form
are to be substantially in the form of Exhibit A annexed hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided in
this Amended and Restated Deposit Agreement;
- 1 -
<PAGE>
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE I.
DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent ten
Shares until the Depositary and the Issuer shall agree otherwise, or until there
shall occur a distribution upon Deposited Securities referred to in Section 4.03
or a change in Deposited Securities referred to in Section 4.08 with respect to
which additional Receipts are not executed and delivered, and thereafter
American Depositary Shares shall represent the interests in the amount of Shares
or Deposited Securities specified in such Sections.
SECTION 1.02 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.04 Custodian.
The term "Custodian" shall mean the London office of the Depositary,
which at the date of this Agreement is at 46 Berkeley Street, London W1X 6AA, 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 the term "Custodian"
shall also mean all of them, collectively.
- 2 -
<PAGE>
SECTION 1.05 Deliver; Execute; Register; Surrender; Transfer; Cancel.
The terms "deliver", "execute", "register", "surrender", "transfer" or
"cancel", when used with respect to Direct Registration Receipts, shall refer to
an entry or entries or an electronic transfer or transfers in the Direct
Registration System.
SECTION 1.06 Deposit Agreement.
The term "Deposit Agreement" shall mean this Amended and Restated
Deposit Agreement, as the same may be further amended from time to time in
accordance with the provisions hereof.
SECTION 1.07 Depositary.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary, which at the date of this Agreement is 101 Barclay
Street, New York, New York, 10286.
SECTION 1.08 Deposited Securities.
The term "Deposited Securities" as of any time shall mean all Shares
whether in registered form or in the form of share warrants to bearer (or
evidence of rights to receive Shares) at such time deposited 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 Direct Registration Receipt.
The term "Direct Registration Receipt" shall mean a Receipt, the
ownership of which is recorded on the Direct Registration System.
SECTION 1.10 Direct Registration System
The term "Direct Registration System" shall mean the direct
registration system maintained by the Depositary, pursuant to which the
Depositary may record the ownership of uncertificated Receipts, which ownership
shall be evidenced by periodic statements issued by the Depositary to the
holders entitled thereto.
SECTION 1.11 Dollars; US$; p; pence.
The term "Dollars" or "US$" shall mean United States dollars. The term
"p" or "pence" shall mean United Kingdom pence.
- 3 -
<PAGE>
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 Issuer for the transfer and
registration of Shares.
SECTION 1.13 Issuer.
The term "Issuer" shall mean Vodafone AirTouch Public Limited Company
(formerly known as Vodafone Group Public Limited Company), incorporated under
the laws of England and Wales, and its successors.
SECTION 1.14 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the Receipt register of the Depositary maintained for such
purpose.
SECTION 1.15 Receipt Register.
The term "Receipt Register" shall mean the register maintained by the
Depositary for the registration of transfer, combination and split-up of
Receipts, and, in the case of Direct Registration Receipts, shall include the
Direct Registration System.
SECTION 1.16 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares. References to "Receipts" shall
include Direct Registration Receipts, unless the context otherwise requires.
SECTION 1.17 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
SECTION 1.18 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.19 Shares.
The term "Shares" shall mean Ordinary Shares of US$0.10 each (par
value) of the Issuer, either in registered form or in the form of share warrants
to bearer, heretofore validly issued and outstanding and fully paid,
non-assessable and free of any pre-emption rights of the holders of outstanding
Shares or hereafter validly
- 4 -
<PAGE>
issued and outstanding and fully paid, non-assessable and free of any
pre-emption rights of the holders of outstanding Shares.
SECTION 1.20 Tax Treaty Payments.
The term "Tax Treaty Payments" shall mean a payment made pursuant to
an entitlement to receive from the U.K. Inland Revenue, in addition to any cash
dividend paid by the Issuer, an amount in the nature of a tax-refund or other
similar payment in respect of the tax credit on the dividend.
ARTICLE II.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.01 Form and Transferability of Receipts.
(a) Certificated Receipts. Receipts in certificated form 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. Such receipt shall be executed by the Depositary by the
manual or facsimile signature of a duly authorized signatory of the Depositary
and, if a Registrar for the Receipts shall have been appointed, countersigned by
the manual or facsimile signature of a duly authorized officer of the Registrar.
No Receipt in certificated form shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt
shall have been so executed. The Depositary shall maintain a Receipt register on
which each Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered. Receipts in certificated form
bearing the 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 of such Receipts by the Registrar and their delivery or
did not hold such office at the date of such Receipts.
The Receipts in certificated form may be endorsed with or have
incorporated in the text thereof such legends or recitals or changes not
inconsistent with the provisions of this Deposit Agreement as may be required by
the Depositary for the purpose of fulfilling its obligations hereunder or as may
be required to comply with any applicable law or regulations thereunder or with
the rules and regulations of any securities exchange upon which Receipts may be
listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
(b) Direct Registration Receipts. Notwithstanding anything in this
Deposit Agreement or in the Receipt to the contrary, American Depositary Shares
issued after the date of this Deposit Agreement shall be evidenced by Direct
Registration Receipts, unless certificated Receipts are specifically requested
by the
- 5 -
<PAGE>
Owner and for no additional fee. Owners shall be bound by the terms and
conditions of this Deposit Agreement and of the form of Receipt, regardless of
whether their Receipts are Direct Registration Receipts or certificated
Receipts.
(c) Transferability. Title to a Receipt (and to the American
Depositary Shares evidenced thereby), when properly endorsed (in the case of
Receipts in certificated form) or upon delivery to the Depositary of proper
instruments of transfer, shall be transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of the State of New
York; provided, however, that the Issuer and 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.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares
or evidence of rights to receive Shares may be deposited by delivery thereof to
any Custodian hereunder, and in the case of Shares in registered form,
accompanied by any appropriate instrument or instruments of transfer, or
endorsement, in form satisfactory to such Custodian, together with all such
certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order a Receipt or Receipts through the Direct Registration System (or, if
specifically requested, certificated Receipts) for the number of American
Depositary Shares representing such deposit. Shares in the form of share
warrants to bearer issued in exchange for common stock, par value US$0.01 per
share ("AirTouch Shares"), of AirTouch, pursuant to the Agreement and Plan of
Merger dated as of January 15, 1999, (the "Merger Agreement"), by and among
Vodafone Group Public Limited Company ("Vodafone"), AirTouch and Apollo Merger
Sub, Inc., shall be deposited under this Deposit Agreement in accordance with
procedures set forth in the Procedures Agreement attached as Exhibit B hereto,
dated as of June 30, 1999 (the "Procedures Agreement"), among the Issuer,
AirTouch, the Depositary and EquiServe Limited Partnership, as Exchange Agent.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted by
the governmental body in England, if any, which is then performing the function
of the regulation of currency exchange. If required by the Depositary, Shares
presented for deposit at any time, whether or not the transfer books of the
Issuer (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,
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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
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 above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Issuer (or 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.
Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or at such other place or
places as the Depositary shall determine.
SECTION 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder (and in addition, if the transfer books of the Issuer or the Foreign
Registrar, if applicable, are open, the Depositary may require a proper
acknowledgment or other evidence from the Issuer that any Deposited Securities
have been recorded upon the books of the Issuer or the Foreign Registrar, if
applicable, in the name of the Depositary or its nominee or such Custodian or
its nominee), together with the other documents required as above specified,
such Custodian shall notify the Depositary of such deposit and the person or
persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex,
facsimile or electronic transmission. Upon receiving such notice from such
Custodian, or upon the receipt of Shares by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver a Receipt or Receipts, at its Corporate Trust Office, to or upon the
order of the person or persons entitled thereto, registered in the name or names
and evidencing any authorized number of American Depositary Shares requested by
such person or persons, but only upon payment to the Depositary of the fee of
the Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.09, if any, and of all taxes and governmental charges and
fees payable in connection with such deposit and the transfer of the Deposited
Securities.
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SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers on the Receipt register, upon receipt at any
of its designated transfer offices of proper instruments of transfer or upon any
surrender of a Receipt, by the Owner in person or by duly authorized attorney,
properly endorsed or accompanied by proper instruments of transfer, and duly
stamped as may be required by the laws of the State of New York and of the
United States of America. Thereupon the Depositary shall execute and deliver a
new Receipt or Receipts to or upon the order of the person entitled thereto
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts replaced.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall, 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 whole number of American Depositary Shares requested, representing
the same aggregate number of American Depositary Shares as the Receipt or
Receipts replaced. At the request of an Owner, the Depositary shall, for the
purpose of substituting a certificated Receipt with a Direct Registration
Receipt, or vice versa, execute and deliver a certificated Receipt or a Direct
Registration Receipt, as the case may be, for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as those evidenced by the certificated Receipt or Direct
Registration Receipt, as the case may be, substituted.
The Depositary may 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.
Upon receipt at the Corporate Trust Office of the Depositary of an
Owner's written order directing the Depositary to cause the Deposited Securities
represented by the American Depositary Shares evidenced by a Receipt to be
withdrawn and delivered to or upon the written order of the person or persons
designated in such order, and upon the surrender, if applicable, of such Receipt
for the purpose of withdrawal of the Deposited Securities represented thereby
and upon payment of the fee, if any, 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 Owner of such Receipt shall be entitled to delivery, to him or
upon his order, of the Deposited Securities represented at that time by the
American Depositary Shares evidenced by
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such Receipt. Delivery of such Deposited Securities may be made by the delivery
of (a) certificates in the name of such Owner or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him and (b) any other securities, property and
cash to which such Owner is then entitled in respect of such Receipts to such
Owner or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay. Delivery of Deposited Securities
consisting of Shares shall be made by delivery of Shares in registered form
only. Accordingly, to the extent that any Deposited Securities to be delivered
to, or upon the order of, the person or persons designated in such order consist
of any Shares in the form of share warrants to bearer, the Depositary shall
follow the procedures set forth in the Procedures Agreement or as otherwise
agreed in writing between the Depositary and the Issuer.
A Receipt in certificated form surrendered for such purposes may be
required by the Depositary to be properly endorsed in blank or accompanied by
proper instruments of transfer in blank. Thereupon the Depositary shall direct
one (or more) of the Custodians to deliver at the principal London, England
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 Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, except that the Depositary
may make delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or such
rights, which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so requesting a
withdrawal or surrendering a Receipt, and for the account of such Owner, the
Depositary shall direct the Custodian to forward any cash or other property
(other than rights) comprising, and forward a certificate or certificates and
other proper documents of title for, the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt to the Depositary for
delivery at the Corporate Trust Office of the Depositary. Such direction shall
be given by letter or, at the request, risk and expense of such Owner, by cable,
telex, facsimile or electronic transmission.
SECTION 2.06 Limitations on Execution, Delivery, Transfer and
Surrender of Receipts.
As a condition precedent to the execution, delivery, registration,
registration of transfer, split-up, combination or surrender of any Receipt, the
delivery of any distribution thereon, or the withdrawal of any Deposited
Securities, the Depositary, the Issuer or the Custodian 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 (other than Relevant
Duties payable by the Issuer or
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AirTouch in accordance with Section 3.02) and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to 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 of such depositor or presenter and as to the genuineness of any
signature appearing on any instrument or document given in connection with such
presentation or deposit and may also require compliance with such reasonable
regulations, if any, as the Depositary may establish consistent with the
provisions of this Deposit Agreement including, without limitation, Section
5.11.
The delivery of Receipts against deposits of Shares generally or
against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
Receipt register is closed, or if any such action is deemed necessary or
advisable by the Depositary or the Issuer 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, subject to Section 5.11 of the Deposit Agreement. The surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Issuer or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt in certificated form shall be mutilated,
destroyed, lost or stolen, the Depositary shall, as the Owner may request, issue
a new Receipt through the Direct Registration System or execute and deliver a
new Receipt of like tenor, in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed or lost or stolen Receipt, upon the Owner thereof filing with the
Depositary (a) a request for such execution and delivery before the Depositary
has notice that the Receipt has been acquired by a bona fide purchaser and (b) a
sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts in certificated
form so
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cancelled after holding cancelled Receipts for the period, if any, required by
any applicable law or regulation.
SECTION 2.09 Pre-Release of Receipts.
The Depositary may issue Receipts against the delivery by the Issuer
(or any agent of the Issuer recording Share ownership) of rights to receive
Shares from the Issuer (or any such agent). No such issue of Receipts will be
deemed a "Pre-Release" that is subject to the restrictions of the following
paragraph.
Unless requested in writing by the Issuer to cease doing so, the
Depositary may, notwithstanding Section 2.03 hereof, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02
("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 and
agreement from the person to whom Receipts are to be delivered (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
Receipts to be remitted, as the case may be, (ii) assigns all beneficial rights,
title and interest in such Shares or Receipts, as the case may be, to the
Depositary in its capacity as such and for the benefit of the Owners, and (iii)
will not take any action with respect to such Shares or Receipts, as the case
may be, that is inconsistent with the transfer of beneficial ownership
(including, without the consent of the Depositary, disposing of such Shares or
Receipts, as the case may be), other than in satisfaction of such Pre-Release,
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (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 Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; provided, however, that
the Depositary reserves the right to disregard such limit from time to time as
it deems reasonably appropriate, and may, with the prior written consent of the
Issuer, change such limit for purposes of general application. The Depositary
will also set Dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case-by-case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
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The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
ARTICLE III.
CERTAIN OBLIGATIONS OF OWNERS
AND BENEFICIAL 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
such proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Issuer (or the
Foreign Registrar, if applicable) of the Shares presented for deposit, 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 sale or distribution of rights or of the proceeds thereof or the
delivery of any Deposited Securities until such proof or other information is
filed or such certificates are executed or such representations and warranties
made.
SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the Owner of such
Receipt to the Depositary; provided that to the extent that any United Kingdom
stamp duty, stamp duty reserve tax or other similar United Kingdom governmental
charge (or any interest or penalties thereon) (each, a "Relevant Duty") arises
in connection with (a) the deposit of Shares, whether in registered form or in
the form of share warrants to bearer (the "Exchange Shares"), in connection with
(i) the exchange of Receipts for AirTouch Shares pursuant to the Merger
Agreement or (ii) the execution and delivery of Receipts upon the exercise of
employee stock options over AirTouch Shares outstanding as of the Effective Time
(as defined in the Merger Agreement), into the facility created by this Deposit
Agreement, including but not limited to the agreement to transfer, the transfer
and the delivery of Exchange Shares, whether in registered form or in the form
of share warrants to bearer, to the Depositary, the Custodian or the nominee of
either of them and any issue of American Depositary Shares by the Depositary in
respect thereof or (b) the holding of Shares in the form of share warrants to
bearer, the transfer of Receipts representing Shares in the form of share
warrants to bearer or the exchange of Shares in the form of share warrants to
bearer for Shares in registered form by the Depositary, the Custodian or the
nominee of either of them, but only, in the case of this clause (b), to the
extent that such Relevant Duty arises out of, or is imposed as a consequence of,
the fact that Exchange Shares were deposited in the form of share warrants to
bearer as referred to in clause (a), such Relevant Duty shall be payable by the
Issuer or AirTouch and not by the Owner, and the Issuer and
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AirTouch shall be jointly and severally liable for such payment. The Depositary
may refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner thereof any part or all
of the Deposited Securities represented by 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 of such Receipt shall remain liable for any deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and any certificate
therefor are validly issued, fully paid, non-assessable and free of any
pre-emptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that the deposit of Shares and issuance of Receipts does not
violate the Securities Act of 1933. Such representations and warranties shall
survive the deposit of Shares and issuance of Receipts. With respect to the
deposit of Shares in connection with the exchange of Receipts for AirTouch
Shares pursuant to the Merger Agreement, the Issuer shall be deemed the person
depositing the Shares for purposes of this Section.
SECTION 3.04 Disclosure of Interests.
Notwithstanding any other provision of this Deposit Agreement, each
Owner and Beneficial Owner agrees to comply with requests from the Issuer which
are made under statutory provisions in the United Kingdom to provide information
as to the capacity in which such Owner or Beneficial Owner owns Receipts and
regarding the identity of any other person interested in such Receipts and the
nature of such interest and may, pursuant to such statutory provisions and any
provisions of the Articles of Association of the Issuer, forfeit the right to
vote and to direct the voting of, and be prohibited from transferring, Receipts
as to which compliance is not made, all as if such Receipts were to the extent
practicable the Shares represented by the American Depositary Shares evidenced
thereby. The Depositary agrees to use its reasonable efforts to comply with
written instructions received from the Issuer requesting that the Depositary
take the reasonable actions specified therein to obtain such information, except
when the Depositary is notified by the Issuer that such action is prohibited by
applicable law.
In addition, any Owner or Beneficial Owner who is or becomes directly
or indirectly interested (within the meaning of the Companies Act of 1985, as
amended from time to time (the "Companies Act")), in the issued ordinary share
capital of the Issuer equal to or in excess of the then "notifiable percentage"
(at the date hereof, three percent (3%)) or such other amount as may be required
by the Companies Act, or is aware that another person for whom it holds such
Receipts is so
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interested, must within two (2) business days (or such other period as may be
required by the Companies Act) after becoming so interested or so aware, and
thereafter upon any changes of at least one percent (1%) of the outstanding
Shares, notify the Issuer as required by the Companies Act.
If the Issuer requests information from the Depositary or the
Custodian, as the registered owners of Shares, pursuant to the Articles of
Association of the Issuer or the Companies Act, the obligations of the
Depositary or the Custodian, as the case may be, shall be limited to disclosing
to the Issuer such information relating to the Shares in question as has in each
case been recorded by it pursuant to the terms of this Deposit Agreement.
ARTICLE IV.
THE DEPOSITED SECURITIES.
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Issuer on any Deposited Securities, the Depositary shall,
subject to the provisions of Section 4.05, convert such dividend or distribution
into Dollars and shall distribute as promptly as practicable the amount thus
received to the Owners entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively; provided, however, that in the event that the Issuer or the
Depositary shall be required to withhold and does withhold from such cash
dividend or other cash distribution an amount on account of taxes or other
governmental charges and net of the Depositary's fee, if any, the amount
distributed to the Owner of 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 the owners entitled
thereto. The Issuer or its agent will remit to the appropriate governmental
agency in the United Kingdom all amounts withheld and owing to such agency. The
Depositary will forward to the Issuer or its agent such information from its
records as the Issuer may reasonably request to enable the Issuer or its agent
to file necessary reports with governmental agencies, and either the Depositary
or the Issuer or its agent may file any such reports as may be necessary or
advisable to be filed 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 Section 4.11, 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, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively, in any manner that the Depositary may deem
equitable and practicable for
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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 Issuer 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 of 1933) the Depositary deems such distribution not to
be feasible, the Depositary may adopt such methods as it deems equitable and
practicable for the purpose of effecting such distribution, including public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale shall be distributed by the Depositary to
the Owners entitled thereto as in the case of a distribution received in cash in
accordance with Section 4.01.
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 shall, only if the
Issuer so requests, distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds as in the case of a cash distribution in accordance
with Section 4.01. If additional Receipts or cash in lieu thereof are not so
distributed, each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby,
and the Depositary shall give written notice to all Owners to such effect.
SECTION 4.04 Rights.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
consultation with the Issuer, 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.
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In circumstances in which rights would otherwise not be distributed,
if an Owner 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 Issuer to the Depositary that (a) the Issuer has elected
in its sole discretion to permit such rights to be exercised and (b) such Owner
has executed such documents as the Issuer has determined in its sole discretion
are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the 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 Issuer 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 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 and all
taxes and governmental charges payable in connection with such rights and
subject to the terms and conditions of this Deposit Agreement) for the account
of such Owners otherwise entitled to such rights, warrants or other instruments,
upon an averaged or other practical basis without regard to any distinctions
among such Owners because of exchange restrictions or the date of delivery of
any Receipt or otherwise.
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 of 1933 with respect to a distribution to
such 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
Issuer 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
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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 Issuer 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, as promptly as practicable, 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 (net of any conversion
expenses of the Depositary) 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 upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise.
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 reasonably deem
desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into 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 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
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foreign currency received by the Depositary to, or hold such balance 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 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
receive notice of any meeting of holders of Shares or other Deposited
Securities, the Depositary shall fix a record date, after consultation with the
Issuer, if different from the record date applicable to the Shares or other
Deposited Securities, for the determination of the Owners who shall be entitled
to receive such dividend, distribution or rights, or the net proceeds of the
sale thereof, or to vote or to give instructions for the exercise of voting
rights at any such meeting, or for fixing the date on or after which each
American Depositary Share will represent the changed number of Shares, which
shall, to the extent practicable, be the same record date as that fixed by the
Issuer for the Deposited Securities. 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 to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively or to vote or
to give such voting instructions.
SECTION 4.07 Voting of Deposited Securities.
The Depositary or, if the Deposited Securities are registered in the
name of or held by its nominee, its nominee, subject to and in accordance with
the Articles of Association of the Issuer hereby irrevocably appoints each Owner
for the time being on the record date (the "Voting Record Date") fixed by the
Depositary in accordance with Section 4.06 in respect of any meeting (including
any adjourned meeting) at which holders of Deposited Securities are entitled to
vote as its proxy to attend, vote and speak at the relevant meeting (or any
adjournment thereof) in respect of the Deposited Securities represented by the
American Depositary Shares evidenced by the Receipts held by such Owner on the
Voting Record Date. In respect of any such meeting each such Owner may appoint
either a person nominated by the Depositary or any other person as its
substitute proxy to attend, vote and speak on behalf of the Owner subject to and
in accordance with the provisions of this Section and the Articles of
Association of the Issuer. As soon as practicable after receipt of notice of any
meeting at which the holders of Deposited Securities are entitled to vote, or of
solicitation of consents or proxies from holders of Deposited Securities, the
Depositary shall, in accordance with Section 4.06, fix the Voting Record Date in
respect of such meeting or solicitation. The Depositary or, if the Issuer so
determines, the Issuer shall mail to Owners of record on such Voting Record
Date: (a) such information as is contained in such notice of meeting or in the
solicitation materials,
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(b) a Receipt proxy card in a form prepared by the Depositary, after
consultation with the Issuer, (c) a statement that each Owner of Record at the
close of business on the Voting Record Date will be entitled, subject to any
applicable law, the Issuer's Articles of Association and the provisions of or
governing the Deposited Securities, either (i) to use such Receipt proxy card in
order to attend, vote and speak at such meeting as the proxy of the Depositary
or its nominee solely with respect to the Shares or other Deposited Securities
represented by American Depositary Shares evidenced by such Owner's Receipts or
(ii) to appoint any other person as the substitute proxy of such Owner, solely
with respect to the Shares or other Deposited Securities represented by American
Depositary Shares evidenced by such Owner's Receipts or (iii) to appoint the
person nominated by the Depositary as the substitute proxy of such Owner and to
instruct such person nominated by the Depositary as to the exercise of the
voting rights pertaining to the Shares or other Deposited Securities represented
by American Depositary Shares evidenced by such Owner's Receipts, and (d) if the
person nominated by the Depositary is to be appointed by such Owner as its
substitute proxy, a brief statement as to the manner in which voting
instructions may be given to the person nominated by the Depositary. Upon the
written request of an Owner of record on the Voting Record Date received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor, insofar as practicable and permitted under applicable law, the
provisions of the Issuer's Articles of Association and the provisions of the
Deposited Securities, to cause to be voted the Deposited Securities in
accordance with the instructions set forth in such request.
Neither the Depositary nor the Custodian nor the nominee of either of
them shall exercise any discretion as to voting and neither the Depositary nor
the Custodian nor the nominee of either of them shall vote or attempt to
exercise the right to vote the Shares or other Deposited Securities represented
by American Depositary Shares except pursuant to and in accordance with such
written instructions from Owners given in accordance with this Section 4.07.
Shares or other Deposited Securities represented by American Depositary Shares
for which no specific voting instructions are received by the Depositary from
the Owner shall not be voted by the Depositary or its nominee but may be
directly voted by Owners in attendance at meetings of shareholders as proxy for
the Depositary, subject to, and in accordance with, the provisions of this
Section and the Issuer's Articles of Association.
For purposes of this Section 4.07, "Owner" shall include any person
holding Receipts through the Vodafone AirTouch Plc Global BuyDIRECT plan and any
successor plan.
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, par value, split-up, consolidation,
cancellation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, any securities which shall be
received by the Depositary or a
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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 existing Deposited Securities, 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 shall, only
if the Issuer so requests, execute and deliver additional Receipts as in the
case of a distribution in Shares in accordance with Section 4.03, or call for
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary, the Custodian or any agent of either of them as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Issuer. The Depositary shall also send to the Owners
copies of such reports when furnished by the Issuer pursuant to Section 5.06.
The Issuer will make available at its registered office for inspection
by Owners without charge its register of directors, register of members, books
of minutes of general meetings and any other documents to the extent such
documents are available for inspection without charge by the members of the
Issuer pursuant to the United Kingdom Companies Act 1985 (the "Companies Act")
and the Articles of Association of the Issuer.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer at any time or from time to time,
the Depositary shall, without expense to the Issuer (except as provided in
agreements in writing entered into between the Depositary and the Issuer from
time to time), 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 Receipt register of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary shall determine that any distribution
in property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charge which the Depositary shall be 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 shall deem 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 as in the case of a cash distribution in accordance
with Section 4.01.
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For so long as any United States Owners are eligible to receive Tax
Treaty Payments, the Depositary undertakes to use reasonable efforts to comply
with arrangements made by the Issuer with the United Kingdom Inland Revenue
under which such Owners satisfying the applicable requirements may receive such
Tax Treaty Payments at the same time as and together with the associated cash
dividend, all as directed by the Issuer. The Issuer undertakes that, for so long
as the arrangements referred to in the immediately preceding sentence are in
effect, the Issuer shall pay any Tax Treaty Payment which may be payable by the
Issuer pursuant to such arrangements at the same time as and together with each
dividend paid by the Issuer on the Shares.
ARTICLE V.
THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
SECTION 5.01 Maintenance of Office and Receipt register 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 or its agent agrees to register as a foreign
nominee for the purposes of this Agreement pursuant to English law.
The Depositary shall keep a Receipt register 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 the Owners in the interest of a business or object
other than the business of the Issuer or a matter related to this Deposit
Agreement or the Receipts.
The Depositary may close the Receipt register, at any time or from
time to time, when deemed expedient by it (after notice to the Issuer) in
connection with the performance of its duties hereunder, or at the reasonable
request of the Issuer.
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.
The Issuer may inspect transfer and registration records of the
Depositary, take copies thereof and require the Depositary and any of its agents
to supply copies of such portions of such records as the Issuer may reasonably
request.
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SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer 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, or by reason of any present or future provision of the
Articles of Association of the Issuer, or by reason of any act of God or war or
other circumstances beyond its control, the Depositary or the Issuer shall be
prevented or forbidden from doing or performing any act or thing which by the
terms of this Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary or the Issuer incur any liability to any Owner or
Beneficial Owner by reason of any non-performance or delay, caused as aforesaid,
in the performance of any act or thing which by the terms of this Deposit
Agreement it is provided shall or may be done or performed, 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 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 practicably 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 Issuer, the Depositary and the Custodian.
The Issuer assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or Beneficial Owners of
Receipts, except that it shall 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 Owners or Beneficial Owners of
Receipts (including, without limitation, liability with respect to the validity
or worth of the Deposited Securities), except that it shall perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Issuer 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
against all expense and liability be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
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Neither the Depositary nor the Issuer shall be liable for any action
or inaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or
Beneficial Owner of a Receipt, or any other person believed by it in good faith
to be competent to give such advice or information.
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 effect of any such vote, provided that any such
action or inaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 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 so to do delivered to the Issuer, 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 Issuer by written
notice of such removal effective upon 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 Issuer 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 Issuer 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 Issuer shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
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SECTION 5.05 The Custodian.
The Depositary has appointed the principal London office of the
Depositary as custodian and agent of the Depositary for the purposes of this
Deposit Agreement. The Custodian in acting hereunder shall be subject at all
times and in all respects to the directions of the Depositary and shall be
responsible solely to 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, 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.
Immediately upon any appointment of a successor Custodian, the
Depositary shall give written notice to all Owners to such effect.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Issuer 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, the Issuer shall transmit to the Depositary and any Custodian a copy of
the notice thereof in the form given or to be given to holders of Shares or
other Deposited Securities.
The Issuer will arrange for the prompt transmittal by the Issuer to
the Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Issuer to holders of
its Shares. If requested in writing by the Issuer, the Depositary will arrange,
as promptly as practicable, for the mailing of copies of such notices, reports
and communications
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to all Owners. The Issuer 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 of Additional Shares, etc.
The Issuer agrees that it will take all steps reasonably necessary to
ensure that no violation by the Issuer of the Securities Act of 1933 will result
from any issuance of (1) additional shares, (2) rights to subscribe for Shares,
(3) securities convertible into or exchangeable for Shares or (4) rights to
subscribe for such securities.
The Issuer agrees with the Depositary that neither the Issuer nor any
company controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares either upon original issue or upon sale of Shares
previously issued and reacquired by the Issuer or any such officiate, unless a
registration statement is in effect as to such Shares under the Securities Act
of 1933.
SECTION 5.08 Indemnification.
The Issuer agrees to indemnify the Depositary and the Custodian
against, and hold each of them harmless from, any liability or expense
(including fees and expenses of counsel), other than any loss, liability, or
expense covered by the terms of Section 3 of the Procedures Agreement, which may
arise out of acts performed or omitted in respect 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, except for any liability
or expense arising out of the negligence or bad faith of either of them, or (ii)
by the Issuer or any of its agents.
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of a Receipt or Receipts in accordance
with Section 2.09 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.09;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Company), as applicable, furnished in writing and not
materially changed or altered by the Company expressly for use in any of the
foregoing documents, or, (ii) if such information is provided, the failure to
state a material fact necessary to make the information provided not misleading.
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The Depositary agrees to indemnify the Issuer and hold it harmless
from any liability or expense (including fees and expenses of counsel) incurred
by it as a result of the negligence or bad faith of the Depositary or the
Custodian in connection with acts performed or omitted by the Depositary or the
Custodian pursuant to this Deposit Agreement or any agreement in furtherance of
or in connection with this Deposit Agreement, other than any loss, liability or
expense covered by the terms of Section 3 of the Procedures Agreement.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
person indemnified hereby.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of a commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights under this Section 5.08) and shall consult in good
faith with the indemnifying person as to the conduct of the defense of such
action or claim, which shall be reasonable in the circumstances. No indemnified
person shall compromise or settle any action or claim without the consent of the
indemnifying person.
SECTION 5.09 Charges of Depositary.
The Issuer will pay those charges of the Depositary and those of any
Registrar, co-transfer agent or co-registrar not payable by the Owners or
Beneficial Owners plus reasonable out-of-pocket expenses such as printing,
translation, stationery, postage, insurance, cables, etc., incurred by the
Depositary in the exercise of its duties and obligations under the Deposit
Agreement, in accordance with written agreements entered into between the
Depositary and the Issuer from time to time. Any other fees, expenses or charges
of the Depositary hereunder will only be paid by the Issuer in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. Except as may be otherwise agreed in writing between the Issuer
and the Depositary, the Issuer shall not pay or be liable for (1) the fees, if
any, of the Depositary for the execution and delivery of Receipts pursuant to
Section 2.03, the surrender of Receipts pursuant to Section 2.05, and the making
of distributions pursuant to Sections 4.01 through 4.04, (2) taxes and other
governmental charges (other than Relevant Duties pursuant to Section 3.02), (3)
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
Issuer (or any appointed agent of the Issuer for transfer and registration of
Shares) and accordingly applicable to transfers of Shares to the name of the
Depositary or its nominee or Custodian or its nominee on the making of deposits
hereunder, (4) such cable, telex or facsimile transmission and delivery expenses
as are expressly provided in this Deposit Agreement to be at the expense of
persons depositing Shares or Owners, and (5) such expenses as are incurred by
the Depositary in the conversion of foreign currency pursuant to Section 4.05.
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The Depositary shall present its statement for such charges and expenses to the
Issuer once every three months or as otherwise agreed between the Issuer and the
Depositary. The charges and expenses of any Custodian are for the sole account
of the Depositary. The Depositary shall charge any party to whom Receipts are
issued or who surrenders Receipts a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the issuance or surrender,
respectively, of a Receipt.
The Depositary, subject to Section 2.09 hereof, may own and deal in
any class of securities of the Issuer 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 such
papers are required to be retained in connection with the performance of written
agreements entered into between the Issuer and the Depositary from time to time
or unless the Issuer requests that such papers be retained for a longer period
or turned over to the Issuer or to a successor depositary.
SECTION 5.11 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Issuer and the Depositary each agrees that it will not exercise any rights
it has under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws including but not limited to, Section IA(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
ARTICLE VI.
AMENDMENT AND TERMINATION.
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the Issuer
and the Depositary 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), or which shall otherwise prejudice any
substantial existing right of Owners, shall not, however, become effective as to
outstanding Receipts until the expiration of three months after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
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 or Receipt as amended thereby. In no event shall
any amendment impair the right of
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any Owner to surrender his Receipt and receive therefor the Deposited Securities
represented thereby.
SECTION 6.02 Termination.
The Depositary shall at any time at the direction of the Issuer
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 Issuer 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 Issuer and the Owners
of Receipts then outstanding 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. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary. At any time
after the expiration of six months from the date of termination, the Depositary
may sell the Deposited Securities then held hereunder and may thereafter (so
long as it may lawfully do so) 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. Upon the termination of this Deposit Agreement, the Issuer shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE VII.
MISCELLANEOUS.
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of 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.
- 28 -
<PAGE>
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 Issuer or AirTouch 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 Vodafone
AirTouch Public Limited Company, The Courtyard, 2-4 London Road, Newbury,
Berkshire RG14 1JX, Attention: Company Secretary, or any other place to which
the Issuer may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to The Bank of New York,
101 Barclay Street, New York, New York 10286, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
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 Receipt register 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 effected 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
- 29 -
<PAGE>
Depositary, AirTouch or the Issuer 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 AirTouch as a Party to the Deposit Agreement
AirTouch is a party to this Deposit Agreement solely for the purpose
of fulfilling its obligations in connection with Section 3.02.
- 30 -
<PAGE>
IN WITNESS WHEREOF, VODAFONE AIRTOUCH PUBLIC LIMITED
COMPANY, AIRTOUCH COMMUNICATIONS, INC. and THE BANK OF NEW YORK have
duly executed this agreement as of the day and year first above set
forth and all Owners shall become parties hereto upon acceptance by
them of Receipts issued in accordance with the terms hereof.
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
By:____________________________________
AIRTOUCH COMMUNICATIONS, INC.
By:____________________________________
THE BANK OF NEW YORK
By:____________________________________
Name:
Title:
- 31 -
<PAGE>
Exhibit A to Deposit Agreement
No.
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents ten deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
PAR VALUE OF US$.10 EACH OF
VODAFONE AIRTOUCH PUBLIC LIMITED COMPANY
(formerly known as VODAFONE GROUP PUBLIC LIMITED COMPANY)
(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, par value US$.10 each (herein called
"Shares") of Vodafone AirTouch Public Limited Company (formerly known as
Vodafone Group Public Limited Company) incorporated under the laws of England
and Wales (herein called the "Issuer"). At the date hereof, each American
Depositary Share represents ten Ordinary Shares which are either deposited or
subject to deposit under the Deposit Agreement at the principal London office of
the Depositary (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 101 Barclay Street, New York, N.Y.
10286, and its principal executive office is located at One Wall Street, New
York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
<PAGE>
1. THE AMENDED AND RESTATED 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 October 12, 1988 as amended and restated
December 26, 1989, as further amended and restated as of September 16, 1991, and
as further amended and restated as of June 30, 1999 (herein called the "Deposit
Agreement"), by and among the Issuer, AirTouch Communications, Inc., a Delaware
corporation and a subsidiary of the Issuer ("AirTouch"), the Depositary, and all
Owners and Beneficial Owners from time to time of Receipts issued thereunder,
each of whom by accepting a 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 of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect 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 New York
City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon receipt at the Corporate Trust Office of the Depositary of an Owner's
written order directing the Depositary to cause the Deposited Securities
represented by the American Depositary Shares evidenced by a Receipt to be
withdrawn and delivered to or upon the written order of the person or persons
designated in such order, and upon the surrender, if applicable, of such Receipt
for the purpose of withdrawal of the Deposited Securities represented thereby
and upon payment of the fee, if any, 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, and subject to the terms and conditions
of the Deposit Agreement, the Owner of such Receipt shall be entitled to
delivery, to him or upon his order, of the Deposited Securities represented at
that time by the American Depositary Shares evidenced by such Receipt. Delivery
of such Deposited Securities may be made by the delivery of (a) certificates in
the name of such Owner or as ordered by him or certificates properly endorsed or
accompanied by proper instruments of transfer to such Owner or as ordered by him
and (b) any other securities, property and cash to which such Owner is then
entitled in respect of such Receipts to such Owner or as ordered by him. Such
delivery shall be made, as hereinafter provided, without unreasonable delay.
Delivery of Deposited Securities consisting of Shares shall be made by delivery
of Shares in registered form only. Accordingly, to the extent that any Deposited
Securities to be delivered to, or upon the order of, the person or persons
<PAGE>
designated in such order consist of any Shares in the form of share warrants to
bearer, the Depositary shall follow the procedures set forth in the Procedures
Agreement or as otherwise agreed in writing between the Depositary and the
Issuer.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the fees and expenses of the Depositary
and upon compliance with such regulations, if any, as the Depositary may
establish for such purpose. This Receipt may be split into other such Receipts,
or may be combined with other such Receipts into one Receipt, representing the
same aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution, delivery, registration
of transfer, split-up, combination, or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, the Issuer or the Custodian 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 (other
than Relevant Duties payable by the Issuer or AirTouch in accordance with
Section 3.02 of the Deposit Agreement) and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and payment of any applicable fees as
provided in this Receipt, may require the production of proof satisfactory to it
as to the identity of such depositor or presenter and as to the genuineness of
any signature appearing on any instrument or document given in connection with
such deposit or presentation and may also require compliance with such
reasonable regulations, if any, as the Depositary may establish consistent with
the provisions of the Deposit Agreement or this Receipt including, without
limitation, Article (23) of this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
Receipt register is closed, or if any such action is deemed necessary or
advisable by the Depositary or the Issuer at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement or this Receipt, or
for any other reason subject to Article (23) hereof. The surrender of
outstanding Receipts and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Issuer or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any
<PAGE>
Shares required to be registered under the provisions of the Securities Act of
1933, unless a registration statement is in effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary;
provided, that to the extent that any United Kingdom stamp duty, stamp duty
reserve tax or other similar United Kingdom governmental charge (or any interest
or penalties thereon) (each, a "Relevant Duty") arises in connection with (a)
the deposit of Shares, whether in registered form or in the form of share
warrants to bearer (the "Exchange Shares"), in connection with (i) the exchange
of Receipts for common stock, par value US$0.01 per share, ("AirTouch Shares")
of AirTouch pursuant to the Agreement and Plan of Merger, dated as of January
15, 1999 (the "Merger Agreement"), by and among Vodafone Group Public Limited
Company, AirTouch and Apollo Merger Sub, Inc. or (ii) the execution and delivery
of Receipts upon the exercise of employee stock options over AirTouch Shares
outstanding as of the Effective Time (as defined in the Merger Agreement), into
the facility created by the Deposit Agreement, including but not limited to the
agreement to transfer, the transfer and the delivery of Exchange Shares, whether
in registered form or in the form of share warrants to bearer, to the
Depositary, the Custodian or the nominee of either of them and any issue of
American Depositary Shares by the Depositary in respect thereof or (b) the
holding of Shares in the form of share warrants to bearer, the transfer of
Receipts representing Shares in the form of share warrants to bearer or the
exchange of Shares in the form of share warrants to bearer for Shares in
registered form by the Depositary, the Custodian or the nominee of either of
them, but only, in the case of this clause (b), to the extent that such Relevant
Duty arises out of, or is imposed as a consequence of, the fact that Exchange
Shares were deposited in the form of share warrants to bearer as referred to in
clause (a), such Relevant Duty shall be payable by the Issuer and AirTouch and
not by the Owner and the Issuer and AirTouch shall be jointly and severally
liable for such payment. The Depositary may refuse to effect any transfer of
this Receipt or any withdrawal of Deposited Securities represented by the
American Depositary Shares evidenced hereby until such payment is made, and may
withhold any dividends or other distributions, or may sell for the account of
the Owner hereof any part or all of the Deposited Securities represented by
American Depositary Shares evidenced by this Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Owner hereof shall remain liable
for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and any certificate
therefor are validly issued, fully paid, non-assessable and free of any
pre-emptive rights of the holders of outstanding Shares, that the person making
such deposit is duly authorized so to do, and that such deposit and any issuance
of Receipts therefor will not violate the Securities Act
<PAGE>
of 1933. Such representations and warranties shall survive the deposit of Shares
and issuance of Receipts. With respect to the deposit of Shares in connection
with the exchange of Receipts for AirTouch Shares pursuant to the Merger
Agreement, the Issuer shall be deemed the person depositing the Shares for
purposes of Section 3.03 of the Deposit Agreement.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
may be required from time to time to file with the Depositary such proof of
citizenship or residence, exchange control approval, or such information
relating to the registration on the books of the Issuer or the Foreign
Registrar, if applicable, of the Shares presented for deposit, 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
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in England which is then performing the function of regulation of the currency
exchange.
7. DISCLOSURE OF INTERESTS.
Notwithstanding any other provision of this Receipt, the Owner and
Beneficial Owner hereof agrees to comply with requests from the Issuer which are
made under statutory provisions in the United Kingdom to provide information as
to the capacity in which such Owner or Beneficial Owner owns this Receipt and
regarding the identity of any other person interested in this Receipt and the
nature of such interest and may, pursuant to such statutory provisions and any
provisions of the Articles of Association of the Issuer, forfeit the right to
vote and to direct the voting of, and be prohibited from transferring, this
Receipt if compliance is not made, all as if this Receipt were to the extent
practicable the Shares represented hereby. The Depositary agrees to use its
reasonable efforts to comply with any instructions received from the Issuer
requesting that the Depositary take the reasonable actions specified therein to
obtain such information, except when the Depositary is notified by the Issuer
that such action is prohibited by applicable law.
In addition, any Owner or Beneficial Owner who is or becomes directly or
indirectly interested (within the meaning of the Companies Act of 1985, as
amended from time to time (the "Companies Act")), in the issued ordinary share
capital of the Issuer equal to or in excess of the then "notifiable percentage"
(at the date hereof, three percent (3%)) or such other amount as may be required
by the Companies Act, or is aware that another person for whom it holds such
Receipts is so interested, must within two (2) business days (or such other
period as may be required by the Companies Act) after becoming so interested or
so aware, and thereafter upon any changes of at least one
<PAGE>
percent (1%) of the outstanding Shares, notify the Issuer as required by the
Companies Act.
If the Issuer requests information from the Depositary or the Custodian, as
the registered owners of Shares, pursuant to the Articles of Association of the
Issuer or the Companies Act, the obligations of the Depositary or the Custodian,
as the case may be, shall be limited to disclosing to the Issuer such
information relating to the Shares in question as has in each case been recorded
by it pursuant to the terms of the Deposit Agreement.
8. CHARGES OF DEPOSITARY.
The Issuer will pay those charges of the Depositary and those of any
Registrar, co-transfer agent or co-registrar not payable by the Owners or
Beneficial Owners plus reasonable out-of-pocket expenses such as printing,
translation, stationery, postage, insurance, cables, etc., incurred by the
Depositary in the exercise of its duties and obligations under the Deposit
Agreement, in accordance with written agreements entered into between the
Depositary and the Issuer from time to time. Any other fees, expenses or charges
of the Depositary under the Deposit Agreement will only be paid by the Issuer in
accordance with agreements in writing entered into between the Depositary and
the Issuer from time to time. Except as may be otherwise agreed in writing
between the Issuer and the Depositary, the Issuer shall not pay or be liable for
(1) the fees, if any, of the Depositary for the execution and delivery of
Receipts pursuant to Section 2.03 of the Deposit Agreement, the surrender of
Receipts pursuant to Section 2.05 of the Deposit Agreement, and the making of
distributions pursuant to Sections 4.01 through 4.04 of the Deposit Agreement,
(2) taxes and other governmental charges (other than Relevant Duties pursuant to
Section 3.02 of the Deposit Agreement), (3) 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 Issuer (or any appointed agent of the Issuer for
transfer and registration of Shares) and accordingly applicable to transfers of
Shares to the name of the Depositary or its nominee or Custodian or its nominee
on the making of deposits under the Deposit Agreement, (4) such cable, telex or
facsimile transmission and delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of persons depositing Shares or Owners,
and (5) such expenses as are incurred by the Depositary in the conversion of
foreign currency pursuant to Section 4.05 of the Deposit Agreement. The
Depositary shall present its statement for such charges and expenses to the
Issuer once every three months or as otherwise agreed between the Issuer and the
Depositary. The charges and expenses of any Custodian are for the sole account
of the Depositary. The Depositary shall charge any party to whom Receipts are
issued or who surrenders Receipts a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the issuance or surrender,
respectively, of a Receipt.
The Depositary, subject to Article (9) hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
<PAGE>
9. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against the delivery by the Issuer (or
any agent of the Issuer recording Share ownership) of rights to receive Shares
from the Issuer (or any such agent). No such issue of Receipts will be deemed a
"Pre-Release" that is subject to the restrictions of the following paragraph.
Unless requested in writing by the Issuer to cease doing so, the Depositary
may, notwithstanding Section 2.03 of the Deposit Agreement, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02 of the Deposit
Agreement ("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 and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial rights, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be), other
than in satisfaction of such Pre-Release, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (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 Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited under the Deposit Agreement; provided, however, that the Depositary
reserves the right to disregard such limit from time to time as it deems
reasonably appropriate, and may, with the prior written consent of the Issuer,
change such limit for purposes of general application. The Depositary will also
set Dollar limits with respect to Pre-Release transactions to be entered into
under the Deposit Agreement with any particular Pre-Releasee on a case-by-case
basis as the Depositary deems appropriate. For purposes of enabling the
Depositary to fulfill its obligations to the Owners under the Deposit Agreement,
the collateral referred to in clause (b) above shall be held by the Depositary
as security for the performance of the Pre-Releasee's obligations to the
Depositary in connection with a Pre-Release transaction, including the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities under the Deposit Agreement).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
<PAGE>
10. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and Beneficial
Owner of this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt, when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument under the laws of the State of New York;
provided, however, that the Issuer and the Depositary, notwithstanding any
notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes.
11. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a
duly authorized signatory and, if a Registrar shall have been appointed, by the
manual or facsimile signature of a duly authorized officer of the Registrar.
12. REPORTS; INSPECTION OF RECEIPT REGISTER.
The Issuer currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under the Securities Exchange Act of 1934.
Such reports and communications will be available for inspection and copying by
Owners and Beneficial Owners at the public reference facilities maintained by
the Commission located at 450 Fifth Street, N.W., Washington, D.C. 20549.
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 Issuer which are both (a) received by the
Depositary, the Custodian or any of its or their agents as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Issuer. The Depositary will also send to Owners
copies of such reports when furnished by the Issuer pursuant to the Deposit
Agreement.
The Issuer will make available at its registered office for inspection by
Owners without charge its register of directors, register of members, books of
minutes of general meetings and any other documents to the extent such documents
are available for inspection without charge by the members of the Issuer
pursuant to the United Kingdom Companies Act 1985 (the "Companies Act") and the
Articles of Association of the Issuer.
The Depositary will keep a Receipt register 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
<PAGE>
with the Owners in the interest of a business or object other than the business
of the Issuer or a matter related to the Deposit Agreement or the Receipts.
13. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution by the Issuer on any Deposited Securities, the Depositary shall,
subject to the provisions of Section 4.05 of the Deposit Agreement, convert such
dividend or distribution into Dollars and shall distribute as promptly as
practicable the amount thus received to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Issuer or the Depositary shall be required to withhold and does
withhold from such cash dividend or other cash distribution an amount on account
of taxes or other governmental charges and net of the Depositary's fee, if any,
the amount distributed to the Owner of American Depositary Shares representing
such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 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, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively, in any
manner that the Depositary may deem equitable and practicable for accomplishing
such distribution; provided, however, that if in the opinion of the Depositary
such distribution cannot be made proportionately among the Owners entitled
thereto, or if for any other reason (including, but not limited to, any
requirement that the Issuer 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 of 1933) the Depositary deems such distribution not to
be feasible, the Depositary may adopt such methods as it deems equitable and
practicable for the purpose of effecting such distribution, including public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale shall be distributed by the Depositary to
the Owners entitled thereto as in the case of a distribution received in cash in
accordance with Section 4.01 of the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend in
or free distribution of Shares, the Depositary shall, only if the Issuer so
requests, distribute to the Owners of outstanding Receipts entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts for an
aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary may
sell the number of Shares represented by the aggregate of such fractions and
distribute the net proceeds as in the case of a cash distribution in accordance
with Section 4.01 of the Deposit Agreement. If additional Receipts or cash in
lieu thereof are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares
<PAGE>
distributed upon the Deposited Securities represented thereby, and the
Depositary shall give written notice to all Owners to such effect.
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 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.
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, as promptly as practicable, 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 (net of any conversion expenses of the
Depositary) 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 upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise.
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 reasonably deem
desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into 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 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
<PAGE>
the Owners entitled thereto and may distribute the balance of the foreign
currency received by the Depositary to, or hold such balance for the respective
accounts of, the Owners entitled thereto.
15. RIGHTS.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
consultation with the Issuer, 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 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 Issuer to the Depositary that (a) the
Issuer has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Issuer has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the 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 Issuer 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 distribution pursuant to the second paragraph of this Article 15, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation and
transfer under such laws.
<PAGE>
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 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 of 1933 with respect to a distribution to such 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 Issuer 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 Issuer
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.
16. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever 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 receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
will fix a record date, after consultation with the Issuer if different from the
record date applicable to the Shares or other Deposited Securities, for the
determination of the Owners who will be entitled to receive such dividend,
distribution or rights, or the net proceeds of the sale thereof, or to vote or
to give instructions for the exercise of voting rights at any such meeting, or
for fixing the date on or after which each American Depositary Share will
represent the changed number of Shares which shall, to the extent practicable,
be the same date as is fixed by the Issuer for the Deposited Securities.
<PAGE>
17. VOTING OF DEPOSITED SECURITIES.
The Depositary or, if the Deposited Securities are registered in the name
of or held by its nominee, its nominee, subject to and in accordance with the
Articles of Association of the Issuer hereby irrevocably appoints each Owner for
the time being on the record date (the "Voting Record Date") fixed by the
Depositary in accordance with Section 4.06 of the Deposit Agreement in respect
of any meeting (including any adjourned meeting) at which holders of Deposited
Securities are entitled to vote as its proxy to attend, vote and speak at the
relevant meeting (or any adjournment thereof) in respect of the Deposited
Securities represented by the American Depositary Shares evidenced by the
Receipts held by such Owner on the Voting Record Date. In respect of any such
meeting each such Owner may appoint either a person nominated by the Depositary
or any other person as its substitute proxy to attend, vote and speak on behalf
of the Owner subject to and in accordance with the provisions of Section 4.07 of
the Deposit Agreement and the Articles of Association of the Issuer. As soon as
practicable after receipt of notice of any meeting at which the holders of
Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall, in
accordance with Section 4.06 of the Deposit Agreement, fix the Voting Record
Date in respect of such meeting or solicitation. The Depositary or, if the
Issuer so determines, the Issuer shall mail to Owners of record on such Voting
Record Date: (a) such information as is contained in such notice of meeting or
in the solicitation materials, (b) a Receipt proxy card in a form prepared by
the Depositary, after consultation with the Issuer, (c) a statement that each
Owner of Record at the close of business on the Voting Record Date will be
entitled, subject to any applicable law, the Issuer's Articles of Association
and the provisions of or governing the Deposited Securities, either (i) to use
such Receipt proxy card in order to attend, vote and speak at such meeting as
the proxy of the Depositary or its nominee solely with respect to the Shares or
other Deposited Securities represented by American Depositary Shares evidenced
by such Owner's Receipts or (ii) to appoint any other person as the substitute
proxy of such Owner, solely with respect to the Shares or other Deposited
Securities represented by American Depositary Shares evidenced by such Owner's
Receipts or (iii) to appoint the person nominated by the Depositary as the
substitute proxy of such Owner and to instruct such person nominated by the
Depositary as to the exercise of the voting rights pertaining to the Shares or
other Deposited Securities represented by American Depositary Shares evidenced
by such Owner's Receipts, and (d) if the person nominated by the Depositary is
to be appointed by such Owner as its substitute proxy, a brief statement as to
the manner in which voting instructions may be given to the person nominated by
the Depositary. Upon the written request of an Owner of record on the Voting
Record Date received on or before the date established by the Depositary for
such purpose, the Depositary shall endeavor, insofar as practicable and
permitted under applicable law, the provisions of the Issuer's Articles of
Association and the provisions of the Deposited Securities, to cause to be voted
the Deposited Securities in accordance with the instructions set forth in such
request.
<PAGE>
Neither the Depositary nor the Custodian nor the nominee of either of them
shall exercise any discretion as to voting and neither the Depositary nor the
Custodian nor the nominee of either of them shall vote or attempt to exercise
the right to vote the Shares or other Deposited Securities represented by
American Depositary Shares except pursuant to and in accordance with such
written instructions from Owners given in accordance with Section 4.07 of the
Deposit Agreement. Shares or other Deposited Securities represented by American
Depositary Shares for which no specific voting instructions are received by the
Depositary from the Owner shall not be voted by the Depositary or its nominee
but may be directly voted by Owners in attendance at meetings of shareholders as
proxy for the Depositary, subject to, and in accordance with, the provisions of
Section 4.07 of the Deposit Agreement and the Issuer's Articles of Association.
For purposes of Section 4.07 of the Deposit Agreement and this Article
(17), "Owner" shall include any person holding Receipts through the Vodafone
AirTouch Plc Global BuyDIRECT plan and any successor plan.
18. 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, cancellation, or any other reclassification of
Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the Issuer 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 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 shall, only
if the Issuer so requests, execute and deliver additional Receipts as in the
case of a distribution in Shares in accordance with Section 4.03 of the Deposit
Agreement or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
19. LIABILITY OF THE ISSUER AND DEPOSITARY.
Neither the Depositary nor the Issuer 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 or by reason of any present or future provision of the
Articles of Association of the Issuer, or by reason of any act of God or war or
other circumstances beyond its control, the Depositary or the Issuer shall be
prevented or forbidden from doing or performing any act or thing which by the
terms of the Deposit Agreement it is provided shall be done or performed; nor
shall the Depositary or the Issuer incur any liability to any Owner or
Beneficial Owner of a Receipt by reason of any non-performance or delay, caused
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
<PAGE>
discretion provided for in the Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.01 (Cash Distributions), 4.02 (Distributions
Other Than Cash, Shares or Rights) or 4.03 (Distributions in Shares) of the
Deposit Agreement, or an offering or distribution pursuant to Section 4.04
(Rights) of the Deposit Agreement, or for any other reason, such distribution or
offering may not practicably 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. Neither the Issuer nor the Depositary assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Owners or Beneficial
Owners of Receipts (including without limitation liability with respect to the
validity or worth of the Deposited Securities), except that they have agreed to
perform their respective obligations specifically set forth in the Deposit
Agreement without negligence or bad faith. Neither the Depositary nor the Issuer
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 against all expense and liability be furnished as
often as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Issuer shall be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Owner or Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
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 inaction is in good faith. The Issuer agrees to indemnify the
Depositary and the Custodian against, and hold each of them harmless from, any
liability or expense (including fees and expenses of counsel), other than any
loss, liability, or expense covered by the terms of Section 3 of the Procedures
Agreement, which may arise out of acts performed or omitted in respect of the
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,
except for any liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Issuer or any of its agents.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09 of the Deposit Agreement) of a Receipt
or Receipts in accordance with Section 2.09 of the Deposit Agreement and which
would not otherwise have arisen had such Receipt or Receipts not been the
subject of a Pre-Release pursuant to Section 2.09 of the Deposit Agreement;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or
<PAGE>
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of American Depositary
Shares, except to the extent any such liability or expense arises out of (i)
information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished in writing and not materially changed or
altered by the Company expressly for use in any of the foregoing documents, or,
(ii) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
Any person seeking indemnification under the Deposit Agreement (an
"indemnified person") shall notify the person from whom it is seeking
indemnification (the "indemnifying person") of a commencement of any
indemnifiable action or claim promptly after such indemnified person becomes
aware of such commencement (provided that the failure to make such notification
shall not affect such indemnified person's rights under Section 5.08 of the
Deposit Agreement) and shall consult in good faith with the indemnifying person
as to the conduct of the defense of such action or claim, which shall be
reasonable in the circumstances. No indemnified person shall compromise or
settle any action or claim without the consent of the indemnifying person.
20. 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 so to do delivered to the Issuer,
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 Issuer by written notice of such
removal, effective upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners to do so, it may appoint a substitute or additional Custodian.
21. 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 Issuer and
the Depositary 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), or which shall otherwise prejudice any
substantial existing right of Owners, shall not, however, become effective as to
outstanding Receipts until the expiration of three months after notice of such
amendment shall have been given to the Owners of outstanding Receipts. Every
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
<PAGE>
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.
22. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary will at any time at the direction of the Issuer 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 Issuer 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 Issuer and the Owners of Receipts
then outstanding a written notice of its election to resign and a successor
depositary shall not have been appointed and accepted its appointment as
provided in the Deposit Agreement. If any Receipts shall remain outstanding
after the date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights and other property as provided in the
Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary. At any time after the expiration of six
months from the date of termination, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and may thereafter (so long as
it may lawfully do so) hold uninvested the proceeds of any such sale, together
with any other cash then held by it thereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Owners 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 will be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash. Upon the termination of
the Deposit Agreement, the Issuer shall be discharged from all obligations under
the Deposit Agreement except for its obligations of the Depositary with respect
to indemnification, charges and expenses.
23. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to
the contrary, the Issuer and the Depositary have each agreed that it will not
exercise any rights it has under the Deposit Agreement to prevent the withdrawal
or delivery of Deposited Securities in a manner which would violate the United
States securities laws including but not limited to Section IA(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time under the Securities Act of 1933.
