SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER
PURSUANT TO RULE 13a-16 OR 15d-16 OF
THE SECURITIES EXCHANGE ACT OF 1934
November 10, 2003
Hanson PLC
----------
(Translation of Registrant's Name into English)
1 Grosvenor Place, London SW1X 7JH, England
-------------------------------------------
(Address of Principal Executive Offices)
Indicate by check mark whether the registrant files or will file annual reports
under cover of Form 20-F or Form 40-F.
Form 20-F X Form 40-F
--- ---
Indicate by check mark whether the registrant by furnishing the information
contained in this form is also thereby furnishing the information to the
Commission pursuant to Rule 12g3-2(b) under the Securities Exchange Act of 1934.
Yes No X
--- ---
THIS SPECIAL REPORT IS INCORPORATED BY REFERENCE IN THE PROSPECTUSES CONTAINED
IN REGISTRATION STATEMENT NO. 33-15028 ON FORM S-8, REGISTRATION STATEMENT NO.
333-13968 ON FORM S-8 AND REGISTRATION STATEMENT NO. 333-14022 ON FORM S-8 FILED
BY THE REGISTRANT UNDER THE SECURITIES ACT OF 1933.
EXHIBIT INDEX
Exhibit No. 1 Description of Hanson Share Capital and American
Depositary Shares.
2
SIGNATURE
Pursuant to the requirement of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
HANSON PLC
Dated: November 7, 2003 By: /s/ Graham Dransfield
-----------------------------
Name: Graham Dransfield
Title: Legal Director
3
EXHIBIT NO. 1
DESCRIPTION OF HANSON SHARE CAPITAL AND AMERICAN DEPOSITARY SHARES
Set forth below is certain information concerning the share capital
and American Depositary Shares ("ADSS") of Hanson PLC, a company incorporated
under the laws of England and Wales ("HANSON"), including a summary of certain
provisions of the Memorandum of Association of Hanson (the "MEMORANDUM"), the
Articles of Association of Hanson (together with the Memorandum, the "ARTICLES")
and the Deposit Agreement, dated October 14, 2003 (the "DEPOSIT Agreement"),
among Hanson, Citibank, N.A., 111 Wall Street, 20th Floor, New York, NY 10005,
USA, as Depositary (the "DEPOSITARY"), and the holders and beneficial owners of
ADSs issued thereunder. Each ADS represents five ordinary shares of 10p each in
the capital of Hanson. The information is intended to comply with Item 10B,
"Additional Information - Memorandum and Articles of Association". Such
information and summary do not purport to be complete and are qualified in their
entirety by reference to the full text of the Articles and Deposit Agreement,
which have been filed with the Securities and Exchange Commission (the
"COMMISSION").
DESCRIPTION OF THE HANSON SHARE CAPITAL AND MEMORANDUM AND
ARTICLES OF ASSOCIATION
As used in this section "Description of the Hanson Share Capital and
Memorandum and Articles of Association", the terms "holder" and "shareholder"
refer to the person registered in the Hanson register of members as the holder
of the relevant share and the term "beneficial owner" refers to a person other
than the holder who has a beneficial interest in the relevant share. The
Depositary is the holder of those ordinary shares represented by ADSs issued
pursuant to the Deposit Agreement. See "Description of the Hanson American
Depositary Shares and Deposit Agreement".
OBJECTS AND PURPOSES
Hanson is incorporated under the name Hanson PLC, and is registered
in England and Wales under registration number 04626078. Hanson's objectives and
purposes are set forth in clause 4 of the Memorandum which provides that
Hanson's principal object is to carry on business as a general commercial
company. In addition, Hanson's objects include, but are not limited to, the
ability to establish and administer facilities enabling shareholders of Hanson
to invest or deal in shares or other securities of Hanson.
DIRECTORS
Hanson's Articles provide for a board of directors consisting of not
less than two directors (the "DIRECTORS") who shall manage the business and
affairs of Hanson.
Under the Articles, a Director cannot vote in respect of any
contract, arrangement, transaction or other proposal in which the Director has a
material interest other than by virtue of the Director's interest in Hanson's
shares or debentures or other securities. This restriction on voting, however,
does not apply to any resolutions concerning the following matters:
4
(i) the giving of any security, guarantee or indemnity to the
Director in respect of money lent or obligations incurred
by the Director at the request of or for the benefit of
Hanson or any of its subsidiaries;
(ii) the giving of any security, guarantee or indemnity to a
third party in respect of a debt or obligation of Hanson or
any of its subsidiaries for which the Director has assumed
responsibility in whole or in part under a guarantee or
indemnity or by the giving of security;
(iii) any proposal concerning an offer of securities in or by
Hanson or any of its subsidiaries for subscription or
purchase in which offer the Director is or is to be
interested as a participant in the underwriting or
sub-underwriting thereof;
(iv) any proposal concerning any other company in which the
Director is interested directly or indirectly and whether
as an officer or shareholder or otherwise howsoever,
provided that the Director is not the holder of a
beneficial interest in 1% or more of any class of share
capital of such company or of the voting rights available
to the members of the relevant company;
(v) any proposal concerning the adoption, modification or
operation of a superannuation fund or retirement, death or
disability benefits scheme which is approved by or subject
to the approval of the Inland Revenue or relating to any
arrangement for the benefit of employees of Hanson or any
of its subsidiaries which does not accord to the Director
any privilege or advantage not generally accorded to the
employees to whom such arrangement relates; or
(vi) any proposal concerning the purchase and/or maintenance of
an insurance policy under which a Director may benefit.
Compensation awarded to Directors is decided by a remuneration
committee consisting exclusively of independent non-executive Directors. Members
of the remuneration committee do not participate in decisions concerning their
own compensation. Directors are entitled to be repaid all travelling, hotel and
other expenses properly incurred by them in or about the discharge of their
duties as Directors.
A Director shall not be disqualified from his office by contracting
with Hanson, nor is any contract or arrangement entered into on behalf of Hanson
in which any Director is in any way interested liable to be voided, nor is any
Director so contracting or being so interested liable to account to Hanson for
the profit realized thereby, provided that the nature of his interest has been
declared by the Director at a meeting of the board of directors.
The Directors have the power to borrow up to three times the
"adjusted equity shareholders' funds" (with adjustments including those related
to deferred tax and to pension and other retirement benefits). Hanson's cash
deposits and similar available assets are deductible in calculating Hanson's
borrowings. Based on the consolidated shareholders' funds at June 30, 2003 of
Hanson Building Materials Limited (formerly known as Hanson PLC) the borrowing
limits of Hanson would have been (using the new provision to borrow up to three
times the "adjusted equity shareholders' funds" provision) approximately
(pound)8.8 billion.
5
The Articles do not specify any age limit for Directors, who may
remain in office when they are over 70. However, any Director who reaches the
age of 70 shall retire at the annual general meeting immediately following his
seventieth birthday and, if willing to act, must seek re-appointment at that and
each subsequent annual general meeting.
All Directors must offer themselves for re-election at least every
three years. A Director can be removed from office by not less than
three-quarters of the remaining Directors. However, a Director may also be
removed by an ordinary resolution of the shareholders of which special notice
has been given.
Directors are not required to hold any shares of Hanson as a
qualification to act as a director.
HANSON ORDINARY SHARES
The authorized share capital of Hanson is (pound)100,000,000 divided
into 1,000,000,000 ordinary shares of 10p each. As of October 15, 2003,
736,968,849 ordinary shares were outstanding. All the issued and outstanding
ordinary shares are fully paid. Ordinary shares may be held in certificated form
whereby certificates representing ordinary shares are issued in registered form
and are issued (subject to the terms of issuance of such shares) following
allotment or receipt of the form of transfer bearing the appropriate stamp duty
by Hanson's UK Registrar, Lloyds TSB Registrars, The Causeway, Worthing, West
Sussex BN99 6DA; or in uncertificated form pursuant to regulation 16(2) of the
Uncertificated Securities Regulations 2001 (the "CREST REGULATIONS") whereby
ordinary shares may be held within and transferred by means of a settlement
system (as defined in the CREST Regulations).
DIVIDEND RIGHTS
Holders of ordinary shares (subject to the terms of issue thereof)
are entitled to receive such dividends out of the profits of Hanson which are
available by law for distribution, as may be declared by the shareholders at a
general meeting, but no dividends may be declared in excess of the amount
recommended by the Directors. The Directors may pay to the shareholders such
interim dividends as appear to the Directors to be justified by the profits of
Hanson available for distribution.
UNCLAIMED DIVIDENDS
Any dividends unclaimed may be invested or otherwise made use of by
the Directors for the benefit of Hanson until claimed. Any dividend which is
still unclaimed twelve years from the date the dividend became due for payment
shall be forfeited and shall revert to Hanson.
UNTRACED SHAREHOLDERS
Hanson may sell any shares in Hanson of a member, or any share to
which a person is entitled by transmission, if, during a period of twelve years
prior to the date of compliance by Hanson with the certain notification
requirements:
(i) no cheque, money order or warrant addressed to the member or the
person entitled to such shares by transmission has been cashed;
6
(ii) no communication has been received from such member or any
person entitled to the shares by transmission; and
(iii) Hanson has paid at least three cash dividends (whether interim
or final) and no such dividend has been claimed.
VOTING RIGHTS
Every holder of ordinary shares present in person at a meeting of
shareholders has one vote on a vote taken by a show of hands, and on a poll
every holder of ordinary shares who is present in person or by proxy has one
vote for each fully-paid share of which he is the holder. Holders of ADSs are
not members of the company but may instruct the Depositary as to the exercise of
voting rights pertaining to the number of ordinary shares represented by their
ADSs (see "Description of Hanson American Depositary Shares and Deposit
Agreement-Voting Rights"). Voting at any meeting of shareholders is by show of
hands unless a poll is demanded. A poll may be demanded by the chairman of the
meeting, by at least three shareholders having the right to vote at the meeting,
by any shareholder or shareholders representing at least 10% of the voting
rights of all shareholders having the right to vote at the meeting or by any
shareholder or shareholders holding shares conferring a right to vote at the
meeting on which the aggregate sum paid up is equal to not less than 10% of the
total sum paid up on all the shares conferring such right.
A member is not entitled to vote if any calls or other monies due in
respect of his shares remain unpaid and a holder may be disenfranchised where
he, or a person appearing to be interested in such shares, fails to comply with
a notice from Hanson requiring him to indicate the capacity in which he holds
such shares or any interest in them.
Forty-eight (48) hours' prior written notice is required of any
proposed amendment to an ordinary resolution.
Under English law, shareholders of a public company such as Hanson
are not permitted to pass resolutions by written consent unless such resolutions
are passed unanimously.
LIQUIDATION RIGHTS
In the event of the liquidation of Hanson, after payment of all
liabilities, the remaining assets would be shared equally by the holders of
ordinary shares. The liquidator, however, may divide among the shareholders in
specie the whole or any part of the remaining assets and may determine how such
division shall be carried out as among the shareholders or the different classes
of shareholders, provided that in each case he is authorized to do so by
extraordinary resolution of the shareholders.
DISCLOSURE OF INTERESTS
Section 198 of the U.K. Companies Act 1985 (the "ACT") provides that
a person (including a company and other legal entities) who to his knowledge
acquires an interest or becomes aware that he has acquired an interest of 3% or
more of any class of shares comprised in a public company's `relevant share
capital' (which, for these purposes, means that company's issued share capital
7
carrying rights to vote in all circumstances at general meetings of the company)
is obliged to notify that company of his interest within two days after becoming
so interested or so aware. Thereafter any changes in such interest of a least 1%
calculated as required by the Act or which reduce such interest below 3% must be
notified to the company. The ordinary shares are `relevant share capital' for
this purpose.
In addition, Section 212 of the Act provides that a public company
may by notice in writing (a "SECTION 212 NOTICE") require a person whom the
company knows or has reasonable cause to believe to be, or to have been at any
time during the three years immediately preceding the date on which the notice
is issued, interested in shares comprised in the company's `relevant share
capital' to confirm that fact or (as the case may be) to indicate whether or not
that is the case, and where he holds or has during the relevant time held an
interest in such shares, to give such further information as may be required
relating to his interest and any other interest in the shares of which he is
aware. The disclosure must be made within such reasonable period as may be
specified in the relevant notice.
For the purpose of the above obligations, the interest of a person in
shares means any kind of interest in shares including interests in any shares
(i) in which his spouse, or his child or stepchild under the age of 18 is
interested, (ii) in which a corporate body is interested in and either (a) that
corporate body or its directors are accustomed to act in accordance with that
person's directions or instructions or (b) that person controls one-third or
more of the voting power of that corporate body or (iii) in which another party
is interested and the person and that other party are parties to a `concert
party' agreement under Section 204 of the Act (being an agreement which provides
for one or more parties to it to acquire interests in shares of a particular
public company, which imposes obligations or restrictions on any one or more of
the parties as to the use, retention or disposal of such interests acquired
pursuant to such agreement and any interest in the company's shares is in fact
acquired by any of the parties pursuant to the agreement). The holding of an
American Depositary Receipt ("ADR") evidencing an ADS would generally constitute
an interest in the underlying ordinary shares.
Where a Section 212 Notice is served by a company on a person who is
or was interested in shares of the company and that person fails to give the
company any information required by the notice within the time specified in the
notice, the company may apply to the court for an order directing that the
shares in question be subject to restriction prohibiting, inter alia, any
transfer of those shares, the exercise of voting rights in respect of such
shares, the issue of further shares in respect of such shares and, other than in
a liquidation, payments, including dividends, in respect of such shares. Such
restrictions may also void any agreement to transfer such shares. In addition, a
person who fails to fulfill the obligations described above is subject to
criminal penalties in the United Kingdom. Under the Articles certain of the
powers of imposing restrictions granted to the courts may be imposed by the
Directors in certain circumstances.
Under Article 43.2 of the Articles, no person shall, unless the
Directors otherwise determine, be entitled to attend or to vote at any general
meeting or to exercise any other right conferred by being a shareholder at or in
relation to meetings of Hanson in respect of any ordinary shares held by him if
he or any person appearing to be, directly or indirectly, interested in those
shares has been duly served with a Section 212 Notice and he or any such person
is in default in supplying to Hanson the information thereby requested within 14
days after (but not including) the date of the Section 212 Notice and if the
shares specified in such notice represent at least 0.25% of the shares of the
class to which such shares belong on the date of service of such notice then,
8
inter alia, a dividend payable in respect of such person's shares may be
withheld by Hanson until the notice is complied with or such other date as the
Directors may determine. The provisions of Article 43.2 of the Articles are in
addition and without prejudice to the provisions of the Act and any other
applicable legislation.
Section 204 of the Act sets out particular rules of disclosure where
two or more parties have entered into an agreement to acquire interests in
shares of a public company, and the agreement imposes obligations or
restrictions on any one or more of the parties to it with respect to the use,
retention or disposal of their interests in such shares acquired in pursuance of
the agreement and any interest in such shares is in fact acquired by any of the
parties in pursuance of the agreement.
There are additional disclosure obligations under the Rules Governing
Substantial Acquisitions of Shares where a person acquires 15% or more (up to
30%) of the voting rights of a listed company or when an acquisition increases
his holdings of shares or rights over shares so as to increase his voting rights
beyond that level by a whole percentage point. Notification in this case should
be to the company, the Panel on Takeover and Mergers and the London Stock
Exchange by no later than noon on the business day following the date of the
acquisition.
The City Code on Takeovers and Mergers also contains strict
disclosure requirements with regard to dealings in the securities of an offeror
or offeree company on all parties to a takeover and also to their respective
associates during the course of an offer period.
NEW ISSUES OF SHARES AND REPURCHASE OF SHARES
The ability of the Directors to issue ordinary shares or securities
convertible into ordinary shares under any circumstances or to issue other
shares is restricted by law and (except in certain cases) requires appropriate
authorization to be given by the holders of ordinary shares. Section 89 of the
Act also applies certain restrictions to the allotment of `equity securities'
(which includes ordinary shares) for cash. Essentially, any new equity or option
to acquire an equity which Hanson may issue for cash (other than pursuant to
employee share schemes) must be offered pro rata to existing shareholders except
insofar as such statutory pre-emption provisions have been disapplied in
accordance with Section 95 of the Act. By a special resolution passed on July
30, 2003 the shareholders of Hanson authorized, inter alia, the Directors to
issue up to 250,000,000 ordinary shares, such authority to expire at the
conclusion of the annual general meeting ("AGM") of the shareholders of Hanson
to be held in 2004. Within this limit, ordinary shares are issuable by way of a
rights offer to existing holders of ordinary shares (subject to the Directors
being able to make exclusions or other arrangements to deal with overseas laws,
regulatory requirements and fractional entitlements), but otherwise issues of
ordinary shares for cash (other than shares issued under employee share schemes)
are limited to an aggregate of 36,850,000 ordinary shares (approximately 5% of
the number of issued ordinary shares). Hanson intends to seek shareholders'
consent to renew these authorities at the 2004 AGM on a substantially similar
basis and on an annual basis thereafter.
So far as concerns issues of ordinary shares for cash other than by
way of a rights offer or under employee share schemes, the Directors are also
restricted by the regulations of the London Stock Exchange, which permit all
such issues only with the consent of the shareholders at a general meeting
either for a specific issue or under a general consent provided that such
9
general consent expires within fifteen months or on the date of the Hanson AGM
following the obtaining of such consent.
Subject to applicable provisions of English law and the Articles,
Hanson may repurchase its own ordinary shares (including any redeemable shares).
By a special resolution passed on July 30, 2003, Hanson's shareholders also
approved a resolution giving Hanson general authority until the 2004 AGM to
repurchase up to 73,696,884 ordinary shares at a price per share (exclusive of
expenses) of not less than 10 pence and not more than 105% of the average of the
middle market price of the ordinary shares as derived from the Daily Official
List of the London Stock Exchange for the five trading days immediately
preceding the date of purchase. Hanson's shareholders will be asked to approve a
resolution to renew this authority at the 2004 AGM on substantially similar
terms.
VARIATION OF RIGHTS
If, at any time, Hanson's share capital is divided into different
classes of shares, the rights attached to any class may be varied or abrogated
(unless the rights attached to the shares of the class otherwise provide),
subject to the provisions of the Act, with the consent in writing of the holders
of three-fourths in nominal value of the issued shares of that class, or upon
the adoption of an extraordinary resolution passed at a separate general meeting
of the holders of the shares of that class.
At every such separate general meeting, all of the provisions of the Articles
relating to proceedings at a general meeting apply, except that:
(i) the quorum is the number of persons (which must be at least
two) who hold or represent by proxy at least one-third in
nominal value of the issued shares of the class or if such
quorum is not present at an adjourned meeting, those
persons present in person or by proxy at such meeting; and
(ii) any shareholder present in person or by proxy may demand a
poll.
Class rights are deemed to have been varied by the reduction of
capital paid up on such shares or by the allotment of further shares ranking in
priority thereto for payment of a dividend or repayment of capital or which
confer on the holders voting rights more favorable than those conferred by the
first-mentioned shares.
The rights are deemed not to have been varied by the creation or
issue of new shares ranking equally in all respects with, or subsequent to, that
class of shares.
ALTERATION OF CAPITAL
Hanson may by ordinary resolution:
(i) increase its share capital;
(ii) consolidate and divide all or any of its share capital;
10
(iii) cancel shares which, at the date of passing of the
resolution, have not been taken or agreed to be taken by a
person and diminish the amount of its capital by the amount
of shares so cancelled; and/or
(iv) subject to the Act, sub-divide its shares or any of them
into shares of smaller amounts.
Hanson may by special resolution reduce its share capital or any
capital redemption reserve or share premium account or other undistributable
reserve in any manner and with and subject to any conditions, authorities and
consents required by law.
TRANSFER OF SHARES
All transfers of certificated ordinary shares shall be effected by
instrument in writing, in any usual form or in any other form approved by the
Directors and shall be executed by or on behalf of the transferor and, if the
share is not fully paid, by or on behalf of the transferee. Uncertificated
ordinary shares may be transferred in accordance with the CREST Regulations and
the facilities and requirements of the relevant system concerned. The Directors
may, in their absolute discretion and without assigning any reason therefor,
decline to register any transfer of an ordinary share:
(i) to more than four joint transferees or renouncees;
(ii) where the share is not fully paid, provided that such
action does not prevent dealings in the shares from taking
place on an open and proper basis;
(iii) on which Hanson has a lien;
(iv) which is in respect of more than one class of share;
(v) which has not been duly stamped (if so required by law);
and
(vi) which has not been delivered for registration or is not
supported by evidence of transfer of title. GENERAL MEETING
AND NOTICES
Under the Articles, the AGM must be held within 15 months of the
preceding AGM and at a time and place determined by the Directors.
In the case of an AGM or a meeting convened for the purpose of
passing a special resolution, 21 days' notice (excluding the day on which the
notice is sent), and in any other case 14 days' notice (excluding the day on
which the notice is sent), specifying the place, the date and time of meeting
and in the case of special business, the general nature of such business shall
be mailed to shareholders or, in certain cases, published in at least one daily
newspaper of national circulation in the United Kingdom.
Subject to the Act and any other applicable legislation, any notice
or other document to be given or sent to any person by Hanson is also to be
treated as given or sent where Hanson and that person have agreed that any
11
notice or other document required to be given or sent to that person may instead
be accessed by him electronically.
RESTRICTIONS ON OWNERSHIP BY NON-U.K. RESIDENTS
Except for certain limitations described in Item 10D "Exchange
Controls" of the annual report of Hanson Building Materials Limited (formerly
known as Hanson PLC) filed on March 11, 2003, under English law and the
Articles, persons who are neither residents nor nationals of the United Kingdom
may freely hold, vote and transfer ordinary shares in the same manner as U.K.
residents or nationals.
12
DESCRIPTION OF THE HANSON AMERICAN DEPOSITARY SHARES AND DEPOSIT AGREEMENT
As used in this section "Description of the Hanson American
Depositary Shares and Deposit Agreement", the term "holder" refers to the person
registered as the owner of Hanson ADSs in the direct registration system of the
Depositary and the term "beneficial owner" refers to a person other than the
holder who has a beneficial interest in the relevant ADS.
DIVIDENDS AND DISTRIBUTIONS
Holders of ADSs generally have the right to receive the distributions
made by Hanson on the securities deposited with Citibank, N.A., as Custodian
(the "CUSTODIAN"). Receipt by holders of these distributions may be limited,
however, by legal and practical constraints. Holders will receive such
distributions under the terms of the Deposit Agreement in proportion to the
number of ADSs held as at a specified record date.
DISTRIBUTION OF CASH
Whenever the Depositary receives confirmation from the Custodian of
the receipt of any cash dividend or other cash distribution on any of the
securities on deposit with the Custodian, the Depositary will arrange for the
funds to be converted into U.S. dollars and for the distribution of the U.S.
dollars to the holders of ADSs, subject to English law and regulations.
The conversion into U.S. dollars will take place only if practicable
and if the U.S. dollars are transferable to the United States. The amounts
distributed to holders of ADSs will be net of the fees, expenses, taxes and
governmental charges payable by holders under the terms of the Deposit
Agreement. The Depositary will apply the same method for distributing the
proceeds of the sale of any property (such as undistributed rights) held by the
Custodian in respect of securities on deposit.
DISTRIBUTIONS OF HANSON SHARES
Whenever Hanson makes a free distribution of ordinary shares for the
securities on deposit with the Custodian, the Depositary will either (i)
distribute to holders of ADSs new ADSs representing the ordinary shares
deposited or (ii) modify the ADS-to-ordinary shares ratio, in which case each
ADS will represent rights and interests in the additional ordinary shares so
deposited. Only whole new ADSs will be distributed. Fractional entitlements will
be sold and the proceeds of such sale will be distributed as in the case of a
cash distribution.
The distribution of new ADSs or the modification of the
ADS-to-ordinary shares ratio upon a distribution of ordinary shares will be made
net of the fees, expenses, taxes and governmental charges payable by holders
under the terms of the Deposit Agreement. In order to pay such taxes or
governmental charges, the Depositary may sell all or a portion of the new
ordinary shares so distributed.
No such distribution of new ADSs will be made if it would violate
U.S. securities laws or if it is not operationally practicable. If the
Depositary does not distribute new ADSs as described above, it may sell the
ordinary shares received upon the terms described in the Deposit Agreement and
will distribute the proceeds of the sale as in the case of a distribution of
cash.
13
DISTRIBUTION OF RIGHTS
Whenever Hanson intends to distribute rights to purchase additional
ordinary shares, Hanson will give prior notice to the Depositary. In such case,
the Depositary shall consult with Hanson as to the lawfulness of making such
distribution and shall determine whether such distribution is reasonably
practicable.
The Depositary will distribute the rights only if Hanson makes a
timely request for the Depositary to make such distribution available, such
distribution is reasonably practicable and the lawfulness of such distribution
has been established to the reasonable satisfaction of Hanson and the
Depositary. The Depositary will establish procedures to distribute rights to
purchase additional ADSs to ADS holders and to enable such holders to exercise
such rights. Holders of ADSs may have to pay fees, expenses, taxes and other
governmental charges to subscribe for the new ADSs upon the exercise of their
rights. The Depositary is not obliged to establish procedures to facilitate the
distribution and exercise by holders of rights to purchase new ordinary shares
other than in the form of ADSs.
The Depositary will sell the rights that are not exercised or
distributed if such sale is lawful and reasonably practicable. The proceeds of
such sale will be distributed to holders of ADSs as in the case of a cash
distribution. If the Depositary is unable to sell the rights, it will allow the
rights to lapse. There can be no assurance that holders of ADSs will be given
the same opportunity to receive or exercise rights on the same terms and
conditions as the holders of ordinary shares or be able to exercise such rights.
ELECTIVE DISTRIBUTIONS
Whenever Hanson intends to distribute a dividend payable at the
election of holders of ordinary shares, either in cash or in additional shares,
Hanson will give prior notice thereof to the Depositary and will indicate
whether or not Hanson wishes the elective distribution to be made available to
holders of ADSs. In such case, the Depositary shall consult with Hanson as to
the lawfulness of making such distribution and shall determine whether such
distribution is reasonably practicable.
The Depositary will make the elective distribution available to
holders of ADSs only if Hanson makes a timely request for the Depositary to make
such distribution available, such distribution is reasonably practicable and the
lawfulness of such distribution shall have been established to the reasonable
satisfaction of the Depositary and Hanson. In such case, the Depositary will
establish procedures to enable holders of ADSs to elect to receive either cash
or additional ADSs, in each case as described in the Deposit Agreement.
If the election is not made available to holders of ADSs, such
holders will receive either cash or additional ADSs, depending on what a
shareholder in England would receive upon failing to make an election, as more
fully described in the Deposit Agreement. There can be no assurance that holders
of ADSs will be given the opportunity to receive elective distributions on the
same terms and conditions as holders of ordinary shares.
OTHER DISTRIBUTIONS
Whenever Hanson intends to distribute property other than cash,
ordinary shares or rights to purchase additional ordinary shares, Hanson will
notify the Depositary in advance and will indicate whether Hanson wishes such
distributions to be made to holders of ADSs. In such case, the Depositary shall
14
consult with Hanson as to the lawfulness of such distribution to holders of ADSs
and shall determine whether such distribution is reasonably practicable.
The Depositary will distribute the property only if Hanson requests
the Depositary to make such distribution, such distribution is reasonably
practicable and the lawfulness of such distribution shall have been established
to the reasonable satisfaction of Hanson and the Depositary. In such case, the
Depositary will distribute the property to the holders in a manner it deems
practicable.
The distribution will be made net of fees, expenses, taxes and
governmental charges payable by holders of ADSs under the terms of the Deposit
Agreement. In order to pay such taxes and governmental charges, the Depositary
may sell all or a portion of the property received.
If the Depositary does not distribute the property to holders of
ADSs, it will sell the property and the proceeds of such a sale will be
distributed to holders as in the case of a cash distribution.
RECORD DATES
Whenever the Depositary shall receive notice of the fixing of a
record date by Hanson for the determination of holders of ADSs entitled to
receive any distribution (whether in cash, ordinary shares, rights, or other
distribution), or whenever for any reason the Depositary causes a change in the
number of ordinary shares that are represented by each ADS, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents
or proxies of, holders of ordinary shares or other deposited securities, or
whenever the Depositary shall find it necessary or convenient in connection with
the giving of any notice, solicitation of any consent or any other matter, the
Depositary shall fix a record date for the determination of the holders of ADSs
who shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, to give or withhold such consent,
to receive such notice or solicitation or to otherwise take action, or to
exercise the rights of holders with respect to such changed number of ordinary
shares represented by each ADS.
CHANGES AFFECTING HANSON SHARES
The ordinary shares held on deposit for holders of ADSs may change
from time to time. For example, there may be a change in nominal or par value, a
division, cancellation, consolidation or reclassification of the shares or a
recapitalisation, reorganisation, merger, consolidation or sale of assets.
If any such change were to occur, ADSs would, to the extent permitted
by law, represent the right to receive the property received or exchange in
respect of the ordinary shares held on deposit. The Depositary may in such
circumstances deliver new ADSs to holders of ADSs, provided the lawfulness of
such delivery has been established to the satisfaction of the Depositary and
Hanson, or call for the exchange of existing ADSs for new ADSs. If the
Depositary may not lawfully distribute such property to holders of ADSs, the
Depositary may sell such property and distribute the net proceeds to holders of
ADSs as in the case of a cash distribution.
15
ISSUE OF HANSON ADSS UPON DEPOSIT OF ORDINARY SHARES
The Depositary may create ADSs on behalf of the holders of ADSs if
holders or their brokers deposit ordinary shares with the Custodian in London.
The Depositary will deliver these ADSs to the person indicated by the holder of
ADSs only after such holders pay any applicable issuance fees and any charges
and taxes payable for the transfer of the ordinary shares to the Custodian. The
ability of holders to deposit ordinary shares and receive ADSs may be limited by
U.S. and English laws applicable at the time of deposit.
The issue of ADSs may be delayed until the Depositary or the
Custodian receives confirmation that all required approvals have been given and
that the ordinary shares have been duly transferred to the Custodian. The
Depositary will only issue ADSs in whole numbers.
When holders of ADSs make a deposit of ordinary shares, they will be
responsible for transferring good and valid title to the Depositary. Any such
holders will be deemed to represent and warrant that:
(i) the ordinary shares are duly authorized, validly issued,
fully paid, non-assessable and legally obtained;
(ii) all pre-emptive (and similar) rights, if any, with respect
to such ordinary shares have been validly waived or
exercised;
(iii) holders of ADSs are duly authorized to deposit the ordinary
shares;
(iv) the ordinary shares presented for deposit are free and
clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and are not, and the ADSs
issuable upon such deposit will not be, "restricted
Securities" (as defined in the Deposit Agreement); and
(v) the Shares presented for deposit have not been stripped of
any rights or entitlements.
If any of the representations or warranties are incorrect in any way,
Hanson and the Depositary may, at the cost and expense of the holders making
such incorrect representations or warranties, take any and all actions necessary
to correct the consequences of the misrepresentations.
TRANSFERABILITY OF ADSs
ADRs evidencing the ADSs may be endorsed with, or have incorporated
in the text, legends or recitals that may be necessary under the Deposit
Agreement, applicable laws or regulations, or any book-entry system in which
ADSs are held. Holders and beneficial owners of ADSs are deemed to have notice
of and to be bound by the terms and conditions of the legends set forth on the
ADRs.
Subject to the limitations contained in the Deposit Agreement and in
the ADR, title to an ADR (and to each ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
New York, provided that an ADR to be transferred has been property endorsed or
is accompanied by the proper instruments of transfer.
16
Neither the Depositary nor Hanson will have any obligation, nor will
they be subject to any liability to any holder or beneficial owner of ADSs under
the Deposit Agreement or any ADR, unless such ADSs are registered on the books
of the Depositary in the name of such holder or, in the case of a beneficial
owner, such ADSs are registered on the books of the Depositary in the name of
such beneficial owner, or the beneficial owner's representative. Such holders in
whose name ADSs are registered on the books of the Depositary shall be treated
as the absolute owners of the ADSs registered in their names.
The Depositary shall make arrangements for the acceptance of the ADSs
into Depositary Trust Company, 55 Water Street, 49th Floor, New York, NY 10041,
USA ("DTC"). A single ADR in the form of a balance certificate will evidence all
ADSs held through DTC and will be registered in the name of the nominee for DTC.
As such, the nominee will be the only registered holder of the balance
certificate ADR. Each beneficial owner of ADSs held through DTC must rely upon
the procedures of DTC and the DTC participants to exercise or be entitled to any
rights attributable to such ADSs. Ownership interests in the balance certificate
ADR registered in the name of the nominee for DTC will be shown on, and transfer
of such ownership interests will be effected through, records maintained by (i)
DTC or its nominee (with respect to the interest of DTC participants) or (ii)
DTC participants or their nominee (with respect to the interests of clients of
DTC participants).
Hanson may restrict transfers of ADSs which could result in the total
number of ordinary shares represented by ADSs owned by a single holder or
beneficial owner exceeding limits imposed by applicable law or the Articles.
Hanson may also, subject to applicable law, instruct the Depositary to take
certain actions with respect to the ownership interests of any holder or
beneficial owner in excess of such limits, including restricting the transfer
of, removing or restricting the voting rights of or disposing of such holder's
or beneficial owner's ADSs.
TRANSFER, COMBINATION AND DIVISION OF HANSON ADR CERTIFICATES
Holders of ADRs will be entitled to transfer, combine or divide their
ADRs and the ADSs evidenced thereby. For transfer of ADRs, holders will have to
surrender the ADRs to be transferred to the Depositary and must also:
(i) ensure that the surrendered ADR is properly endorsed or
otherwise in a proper form for transfer;
(ii) provide such proof of identity and authenticity of
signatures as the Depositary deems appropriate;
(iii) provide any transfer stamps required by the State of New
York or the United States; and
(iv) pay all applicable fees, charges, expenses, taxes and other
governmental charges payable by ADS holders pursuant to the
terms of the ADS Deposit Agreement, upon the transfer of
ADSs.
To have ADSs either combined or divided, holders of ADRs must
surrender the ADRs in question to the Depositary with their request to have them
combined or divided, and must pay all applicable fees, charges and expenses
17
payable by ADS holders, pursuant to the terms of the Deposit Agreement, upon a
combination or division of ADRs.
WITHDRAWAL OF ORDINARY SHARES UPON CANCELLATION OF ADSS
Holders of ADSs will be entitled to present their ADSs to the
Depositary for cancellation and to then receive the corresponding number of
underlying ordinary shares at the Custodian's office. A holder's ability to
withdraw the ordinary shares may be limited by U.S. and English law applicable
at the time of withdrawal. In order to withdraw the ordinary shares represented
by ADSs, holders of ADSs will be required to pay to the Depositary the fees for
cancellation of ADSs and any charges and taxes payable upon the transfer of the
ordinary shares being withdrawn. Holders of ADSs assume the risk for delivery of
all funds and securities upon withdrawal. Once cancelled, the ADSs will not have
any rights under the Deposit Agreement.
If a holder of ADSs holds an ADR registered in the holder's name, the
Depositary may require such holder to provide proof of identity and authenticity
of any signature and such other documents as the Depositary may deem appropriate
before it will cancel ADSs. The withdrawal of the ordinary shares represented by
ADSs may be delayed until the Depositary receives satisfactory evidence of
compliance with all applicable laws and regulations. Please note that the
Depositary will only accept ADSs for cancellation that represent a whole number
of securities on deposit.
Holders of ADSs will have the right to withdraw the securities
represented by their ADSs at any time except for:
(i) temporary delays that may arise because (i) the transfer
books for the ordinary shares or ADSs are closed; or (ii)
ordinary shares are immobilized on account of a holders'
meeting or a payment of dividends;
(ii) obligations to pay fees, taxes and similar charges; and
(iii) restrictions imposed because of laws or regulations
applicable to ADS or the withdrawal of securities on
deposit.
The Deposit Agreement may not be modified to impair the right to
withdraw the securities represented by ADSs, except to comply with mandatory
provisions of law.
VOTING RIGHTS
Holders of ADSs generally have the right under the Deposit Agreement
to instruct the Depositary to exercise the voting rights for the ordinary shares
represented by their ADSs.
At the request of Hanson, the Depositary will distribute to ADSs
holders any notice of a shareholders' meeting received from Hanson, together
with information explaining how to instruct the Depositary to exercise the
voting rights of the securities represented by ADSs.
If the Depositary receives timely voting instructions from a holder
of ADSs, it will endeavour to vote the securities represented by the holder's
ADSs in accordance with such voting instructions which, unless otherwise
instructed, will be either:
18
(i) on a show of hands, in which case the Depositary will vote
in accordance with the voting instructions received from a
majority of ADS holders giving voting instructions; or
(ii) by poll, in which case the Depositary will cause the number
of deposited securities represented by the ADSs for which
it has received voting instructions to be voted in
accordance with those voting instructions.
Unless specifically instructed by at least three holders of ADSs
representing not less than 10% of the total voting rights of all holders of ADSs
having a right to vote at the meeting, the Depositary may not join in demanding
a poll.
Please note that the ability of the Depositary to carry out voting
instructions may be limited by practical and legal constraints and the terms of
the securities on deposit. Hanson cannot assure holders of ADSs that they will
receive voting materials in time to enable them to return voting instructions to
the Depositary in a timely manner. Securities for which no voting instructions
have been received will not be voted.
FEES AND CHARGES
Holders of ADSs will be required to pay the following service fees to
the Depositary:
SERVICE FEES
(i) Issue of ADS Up to U.S. 5(cent)per ADS issued
(ii) Cancellation of ADS Up to U.S. 5(cent)per ADS surrenders
(iii) Exercise of rights to purchase
additional ADSs UP to U.S. 5(cent) per ADS issued
(iv) Distribution of cash dividends No fee (so long as prohibited by the
NYSE)
(v) Distribution of ADSs pursuant
to share dividend or other free
share distribution No fee (so long as prohibited by the
NYSE)
(vi) Distribution of cash proceeds
(i.e., upon sale of rights or
other entitlements) Up to U.S. 2(cent) per ADS held
(vii) Distribution of securities
other than ADSs or rights to
purchase additional ADSs Up to U.S. 5(cent) per security (or
ADS equivalent)distributed
Holders, beneficial owners, persons depositing ordinary shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
deposited securities will also be responsible for the payment of certain fees
and expenses incurred by the Depositary, and certain taxes and governmental
charges, such as:
19
(i) fees for the transfer and registration of ordinary shares
charged by the Registrar for the ordinary shares in the
United Kingdom (i.e. upon deposit and withdrawal of
ordinary shares);
(ii) expenses incurred in converting foreign currency into U.S.
dollars;
(iii) expenses for cable, telex and fax transmissions and for
delivery of securities;
(iv) taxes and duties upon the transfer of securities (i.e. when
ordinary shares are deposited or withdrawn from deposit);
and
(v) fees and expenses incurred in connection with the delivery
or servicing of ordinary shares on deposit.
Hanson has agreed to pay various other charges and expenses of the
Depositary. Please note that the fees and charges that holders of ADSs may be
required to pay may vary over time and may be changed by Hanson and by the
Depositary. Holders of ADSs will receive prior notice of such changes.
COMPLIANCE WITH INFORMATION REQUESTS
Holders and beneficial owners of ADSs will be required to comply with
requests to provide information from Hanson in accordance with applicable law,
the rules and requirements of any other stock exchange on which shares or ADSs
are at any time registered, traded or listed or the Articles. Information
requested may include the capacity in which a holder or beneficial owner of ADSs
owns ADSs, the identity of any other persons interested in such ADSs and the
nature of such interests and various other matters, whether or not a person is a
holder or beneficial owner of ADSs at the time of such request. Failure to
comply with such requests may result in the imposition of sanctions against the
holder of the ADSs in respect of which the non-complying person is or was, or
appears to be or has been, interested, including the withdrawal of voting rights
of such ordinary shares underlying the ADSs and restrictions on the rights to
receive dividends on and to transfer or withdraw such ADSs.
In addition, each holder and beneficial owner of ADSs who is or
becomes directly or indirectly interested in 3% or more of the outstanding
shares (including those ordinary shares underlying the ADSs), or is aware that
another person for whom it holds such ADSs is so interested will be required,
pursuant to the Act, to notify Hanson within two business days after becoming so
interested or so aware.
AMENDMENTS AND TERMINATION
Hanson may agree with the Depositary to modify the Deposit Agreement
at any time without the consent of the ADS holders. Hanson will give holders 30
days' prior notice of any modifications that would materially prejudice any of
their substantial rights under the Deposit Agreement. Hanson will not consider
it to be materially prejudicial to the substantial rights of holders of ADSs if
any modifications or supplements are made that are reasonably necessary for the
ADSs to be registered under the U.S. Securities Act or to be eligible for
book-entry settlement, in each case without imposing or increasing the fees and
charges that holders of ADSs are required to pay. In addition, Hanson may not be
20
able to provide holders of ADSs with prior notice of any modifications or
supplements that are required to accommodate compliance with applicable
provisions of law.
Holders of ADSs will be bound by the modifications to the Deposit
Agreement if they continue to hold ADSs after the modifications to the Deposit
Agreement become effective. The Deposit Agreement cannot be amended to prevent
holders of ADSs from withdrawing the ordinary shares represented by ADSs (except
as permitted by law or by the Articles).
Upon termination, the following will occur under the Deposit
Agreement:
(i) For a period of six months after termination, holders of
ADSs will be able to request the cancellation of their ADSs
and the withdrawal of the shares represented by their ADSs,
and the delivery of all other property held by the
Depositary in respect of those ordinary shares on the same
terms as prior to the termination. During this six months'
period, the Depositary will continue to collect all
dividends received on the ordinary shares on deposit but
will not distribute any such property to holders of ADSs
until such holders request the cancellation of their ADSs.
(ii) After the expiration of such six months' period, the
Depositary may sell the securities held on deposit. The
Depositary will hold the proceeds from such sale and any
other funds then held for the holders of ADSs in a
non-interest bearing account. At that point, the Depositary
will have no further obligations to holders other than to
account for any funds held for the holders of ADSs that are
still outstanding.
BOOKS OF THE DEPOSITARY
The Depositary will maintain ADS holder records at its depositary
office. Holders of ADSs may inspect such records at the office of the Depositary
during regular business hours but solely for the purpose of communicating with
other ADS holders in respect of business matters relating to the ADSs and the
Deposit Agreement.
The Depositary will maintain facilities in New York to record and
process the issue, cancellation, combination, division and transfer of ADRs.
These facilities may be closed from time to time, to the extent not prohibited
by law.
LIMITATIONS ON OBLIGATIONS AND LIABILITIES
The Deposit Agreement limits the obligations of Hanson and the
Depositary to holders of ADSs. In particular:
(i) Hanson and the Depositary are obliged only to take the
actions specifically stated in the Deposit Agreement
without negligence or bad faith;
(ii) the Depositary disclaims any liability for any failure to
carry out voting instructions, for any manner in which a
vote is cast or for the effect of any vote, provided it
acts in good faith and in accordance with the terms of the
Deposit Agreement;
(iii) the Depositary disclaims (absent its negligence or bad
faith) any liability for any failure to determine that any
distribution or action may be lawful or reasonably
21
practicable, for the content of any document forwarded to
holders of ADSs on Hanson's behalf or for the accuracy of
any translation of such a document, for allowing any rights
to lapse upon the terms of the Deposit Agreement or for the
timeliness of any notices or for Hanson's failure to give
notice;
(iv) the Depositary shall not incur any liability for any
investment risk associated with investing in shares, for
the validity or worth of the shares, for any tax
consequences that may result from the ownership of ADSs or
for the credit-worthiness of any third party;
(v) Hanson and the Depositary will not be obliged to perform
any act that is inconsistent with the terms of the Deposit
Agreement;
(vi) Hanson and the Depositary disclaim any liability if Hanson
is prevented or forbidden from acting on account of any law
or regulation, any provision of the Articles, any provision
of any securities on deposit or by reason of any act of God
or ware or terrorism or other circumstances beyond their
control;
(vii) Hanson and the Depositary disclaim any liability by reason
of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement or in the Articles or
in any provisions of securities on deposit;
(viii) Hanson and the Depositary further disclaim any liability
for any action or inaction in reliance on the advice or
information received from legal counsel, accountants, any
person presenting ordinary shares for deposit, any holder
of ADSs or authorized representatives thereof, or any other
person believed by either Hanson or the Depositary in good
faith to be competent to give such advice or information;
(ix) Hanson and the Depositary also disclaim liability for the
inability by a holder of ADSs to benefit from any
distribution, offering, right or other benefit which is
made available to holders of shares but is not, under the
terms of the Deposit Agreement, made available to holders
of ADSs;
(x) Hanson and the Depositary may rely without any liability
upon any written notice, request or other document believed
to be genuine and to have been signed or presented by the
proper parties; and
(xi) Hanson and the Depositary also disclaim liability for any
consequential or punitive damages for any breach of the
terms of the Deposit Agreement.
PRE-RELEASE TRANSACTIONS
The Depositary may, in certain circumstances, issue ADSs before
receiving a deposit of ordinary shares or release ordinary shares before
receiving ADSs for cancellation. These transactions are commonly referred to as
"pre-release transactions". The Deposit Agreement limits the aggregate size of
pre-release transactions and imposes a number of conditions on such transactions
(for example, the need to receive collateral, the type of collateral required
and the representations required from brokers). The Depositary may retain the
compensation received from the pre-release transactions.
22
TAXES
Holders of ADSs will be responsible for the taxes and other
governmental charges payable on the ADSs and the securities represented by the
ADSs. Hanson, the Depositary and the Custodian may deduct from any distribution
the taxes and governmental charges payable by holders and may sell any and all
property on deposit to pay the taxes and governmental charges payable by
holders. Holders of ADSs will be liable for any deficiency if the sale proceeds
do not cover the taxes that are due.
The Depositary may refuse to issue ADSs, to deliver, transfer, divide
and combine Hanson ADRs or to release securities on deposit until all taxes and
charges are paid by the applicable holder. The Depositary and the Custodian may
take reasonable administrative actions to obtain tax refunds and reduced tax
withholding for any distribution on their behalf. Moreover, holders of ADSs may
be required to provide to the Depositary and to the Custodian proof of taxpayer
status and residence and such other information as the Depositary and the
Custodian may require to fulfil legal obligations. Holders of ADSs are required
to indemnify Hanson, the Depositary and the Custodian for any claims with
respect to taxes based on any tax benefit obtained for holders of ADSs.
REPORTS AND NOTICES
The Depositary shall make available for inspection by holders of ADSs
at its principal office any reports and communications, including any proxy
soliciting materials, received from Hanson which are (a) received by the
Depositary, the Custodian, or the nominee of either of them as holder of the
ordinary shares underlying the ADSs and (b) made generally available to the
holders of such ordinary shares of the Company.
The Depositary shall arrange, at the request of Hanson, to provide
copies of all notices, reports and communications which are made generally
available by Hanson to its shareholders, or on such other basis as Hanson may
advise the Depositary as may be required by applicable law, regulation or stock
exchange requirement.
FOREIGN CURRENCY CONVERSION
The Depositary will arrange for the conversion of all foreign
currency received into U.S. dollars if such conversion is practical, and it will
distribute the U.S. dollars in accordance with the terms of the Deposit
Agreement. Holders of ADSs may have to pay fees and expenses incurred in
converting foreign currency, such as fees and expenses incurred in complying
with currency exchange controls and other governmental requirements.
If the conversion of foreign currency is not practicable or lawful,
or if any required approvals are denied or are not obtainable at a reasonable
cost or within a reasonable period, the Depositary may take the following
actions in its discretion:
(i) convert the foreign currency to the extent practical and
lawful, and distribute the U.S. dollars to the holders for
whom the conversion and distribution is lawful and
practical;
(ii) distribute the foreign currency to holders for whom the
distribution is lawful and practical; and
(iii) hold the foreign currency (without liability for interest)
for the applicable holders.
23