Common use of LIABILITY OF THE COMPANY AND DEPOSITARY Clause in Contracts

LIABILITY OF THE COMPANY AND DEPOSITARY. Neither the Depositary nor the Company nor shall any of their respective directors, employees, agents or affiliates shall incur any liability to any Holder of any Receipt if, by reason of any provision of any present or future law, rule or regulation of the United States or Australia or any other country, or of any other action of any governmental authority or regulatory authority or stock exchange, or by reason of any provision, present or future, of the Memorandum and Articles of Association of the Company, or by reason of any act of God or war or other circumstances beyond its control, the Depositary or its agents or the Company or its agents shall be prevented or forbidden from, or subjected to any civil or criminal penalty on account of, doing or performing any act or thing which by the terms of the Deposit Agreement or this Receipt it is provided shall be done or performed or shall be obliged to do anything inconsistent with this Deposit Agreement; nor shall the Depositary or the Company incur any liability to any Holder of a Receipt by reason of any nonperformance 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 the Deposit Agreement or in the Memorandum and Articles of Association. In the event of any inconsistency between the provisions of the Deposit Agreement and the Memorandum and Articles of Association, the Memorandum and Articles of Association shall govern (subject, however to the provisions of Paragraph (22) hereof). Neither the Company nor the Depositary nor either's agents shall incur any liability to any Holder or third party due to or arising out of any inconsistency between the Deposit Agreement and the Memorandum and Articles of Association. Except in the case of negligence or bad faith on the part of the Company, the Company shall not incur any liability to the Depositary, its directors, employees, or agents (including any Custodian), either directly, by indemnity, contribution or otherwise, due to or arising out of any inconsistency between the Deposit Agreement and the Memorandum and Articles of Association. Except in the case of negligence or bad faith on the part of the Depositary, the Depositary shall not incur any liability to the Company, its directors, employees, or agents, either directly, by indemnity, contribution or otherwise, due to or arising out of any inconsistency between the Deposit Agreement and the Memorandum and Articles of Association. No implied covenants or obligations shall be read into this Deposit Agreement or the Receipts against the Company, the Depositary or the directors, employees, agents (including, in the case of the Depositary, the Custodian) of either. Where, by the terms of a distribution or an offering pursuant to the Deposit Agreement, or for any other reason, such distribution or offering may not be made available to Holders, or some of them, and the Depositary may not dispose of such distribution or offering on behalf of such Holders and make the net proceeds available to such Holders, then the Depositary shall not make such distribution or offering, and may, after consultation with the Company if practicable, allow any such rights, if applicable, to lapse. Neither the Company or its agents nor the Depositary or its agents assumes any obligation or shall be subject to any liability under the Deposit Agreement or hereunder to Holders or third parties, except that each of them agrees to use its best judgment and good faith in the performance of its obligations and duties set forth in the Deposit Agreement. Neither the Depositary nor its agents shall be subject to any liability with respect to the validity or worth of the Deposited Securities. Neither the Company nor the Depositary nor any of their respective agents shall be (a) under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its opinion may involve it in expense and liability, unless indemnity and security satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as may be required, and no Custodian shall be under any obligation whatsoever with respect to such proceedings, the responsibility of a Custodian being solely to the Depositary or (b) liable for any action or inaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Stock for deposit, any Holder, or any other person believed in good faith to be competent to give such advice or information. Neither the Depositary nor any of its agents shall 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 any such vote, provided that any such action or inaction is in good faith. No disclaimer of liability under the Securities Act of 1933, as amended, is intended by any provision hereof or by any provision of the Deposit Agreement. Subject to the further terms and provisions of this Pxxxxxxxx (00), Xxxxxxxx, N.A. and its agents may own and deal in any class of securities of the Company and its affiliates and in Receipts. The Depositary may issue Receipts against evidence of rights to receive Stock from the Company, or any custodian, registrar, transfer agent, clearing agency or other entity involved in ownership or transaction records in respect of the Stock. Such evidence of rights shall consist of written blanket or specific guarantees of ownership of Stock furnished by the Company or any such custodian or registrar, transfer agent clearing agency or other such entity on behalf of the holder thereof. The Depositary shall not lend Stock or Receipts; provided, however, that the Depositary reserves the right to (i) issue Receipts prior to the receipt of Stock pursuant to Section 2.02 of the Deposit Agreement and (ii) deliver Stock prior to the receipt and cancellation of Receipts pursuant to Section 2.05 of the Deposit Agreement, including Receipts which were issued under (i) above but for which Stock may not have been received. The Depositary may receive Receipts in lieu of Stock under (i) above. Each such transaction shall be (a) accompanied by or subject to (x) a written representation by the person or entity (the "Applicant") to whom Receipts are issued or Stock delivered that at the time the Depositary issued such Receipts or delivers such Stock, the Applicant or its customer owns the Stock or Receipts to be delivered to the Depositary, or (y) such evidence of ownership of Stock or Receipts as the Depositary deems appropriate, (b) subject to a written representation by the Applicant that it will hold such Stock or Receipts in trust for the Depositary until their delivery to the Depositary or custodian, reflect on its records the Depositary as owner of such Stock or Receipts and deliver such Stock upon the Depositary's request, (c) at all times fully collateralized (marked to market daily) with cash, United States government securities, or other collateral of comparable safety and liquidity, (d) terminable by the Depositary on not more than five (5) business days notice, and (e) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The Depositary intends that the number of Receipts issued by it under (i) above and outstanding at any time, generally will not exceed thirty percent (30%) of the American Depositary Shares issued by the Depositary with respect to which Stock is on deposit with the Depositary or Custodian; provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as the Depositary deems appropriate. The Depositary will also set limits with respect to the number of Receipts and Stock involved in transactions to be effected hereunder with any one person on a case by case basis as it deems appropriate. Collateral provided by an Applicant for Receipts or Stock, but not the earnings, thereon, shall be held for the benefit of the Holder. The Depositary may retain for its own account any compensation received by it in connection with the foregoing, including, without limitation, earnings on the collateral.

LIABILITY OF THE COMPANY AND DEPOSITARY. Neither the Depositary nor the Company nor shall any of their respective directors, employees, agents or affiliates shall incur any liability to any Holder of any Receipt if, by reason of any provision of any present or future law, rule or regulation of the United States or Australia or any other country, or of any other action of any governmental authority or regulatory authority or stock exchange, or by reason of any provision, present or future, of the Memorandum and Articles of Association of the Company, or by reason of any act of God or war or other circumstances beyond its control, the Depositary or its agents or the Company or its agents shall be prevented or forbidden from, or subjected to any civil or criminal penalty on account of, doing or performing any act or thing which by the terms of the Deposit Agreement or this Receipt it is provided shall be done or performed or shall be obliged to do anything inconsistent with this Deposit Agreement; nor shall the Depositary or the Company incur any liability to any Holder of a Receipt by reason of any nonperformance 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 the Deposit Agreement or in the Memorandum and Articles of Association. In the event of any inconsistency between the provisions of the Deposit Agreement and the Memorandum and Articles of Association, the Memorandum and Articles of Association shall govern (subject, however however, to the provisions of Paragraph (22) hereof). Neither the Company nor the Depositary nor either's agents shall incur any liability to any Holder or third party due to or arising out of any inconsistency between the Deposit Agreement and the Memorandum and Articles of Association. Except in the case of negligence or bad faith on the part of the Company, the Company shall not incur any liability to the Depositary, its directors, employees, or agents (including any Custodian), either directly, by indemnity, contribution or otherwise, due to or arising out of any inconsistency between the Deposit Agreement and the Memorandum and Articles of Association. Except in the case of negligence or bad faith on the part of the Depositary, the Depositary shall not incur any liability to the Company, its directors, employees, or agents, either directly, by indemnity, contribution or otherwise, due to or arising out of any inconsistency between the Deposit Agreement and the Memorandum and Articles of Association. No implied covenants or obligations shall be read into this Deposit Agreement or the Receipts against the Company, the Depositary or the directors, employees, agents (including, in the case of the Depositary, the Custodian) of either. Where, by the terms of a distribution or an offering pursuant to the Deposit Agreement, or for any other reason, such distribution or offering may not be made available to Holders, or some of them, and the Depositary may not dispose of such distribution or offering on behalf of such Holders and make the net proceeds available to such Holders, then the Depositary shall not make such distribution or offering, and may, after consultation with the Company if practicable, allow any such rights, if applicable, to lapse. Neither the Company or its agents nor the Depositary or its agents assumes any obligation or shall be subject to any liability under the Deposit Agreement or hereunder to Holders or third parties, except that each of them agrees to use its best judgment and good faith in the performance of its obligations and duties set forth in the Deposit Agreement. Neither the Depositary nor its agents shall be subject to any liability with respect to the validity or worth of the Deposited Securities. Neither the Company nor the Depositary nor any of their respective agents shall be (a) under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its opinion may involve it in expense and liability, unless indemnity and security satisfactory to it against all expense (including fees and disbursements of counsel) and liability be furnished as often as may be required, and no Custodian shall be under any obligation whatsoever with respect to such proceedings, the responsibility of a Custodian being solely to the Depositary or (b) liable for any action or inaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Stock for deposit, any Holder, or any other person believed in good faith to be competent to give such advice or information. Neither the Depositary nor any of its agents shall 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 any such vote, provided that any such action or inaction is in good faith. No disclaimer of liability under the Securities Act of 1933, as amended, is intended by any provision hereof or by any provision of the Deposit Agreement. Subject to the further terms and provisions of this Pxxxxxxxx (00), Xxxxxxxx, N.A. and its agents may own and deal in any class of securities of the Company and its affiliates and in Receipts. The Depositary may issue Receipts against evidence of rights to receive Stock from the Company, or any custodian, registrar, transfer agent, clearing agency or other entity involved in ownership or transaction records in respect of the Stock. Such evidence of rights shall consist of written blanket or specific guarantees of ownership of Stock furnished by the Company or any such custodian or registrar, transfer agent agent, clearing agency or other such entity on behalf of the holder thereof. The Depositary shall not lend Stock or Receipts; provided, however, that the Depositary reserves the right to (i) issue Receipts prior to the receipt of Stock pursuant to Section 2.02 of the Deposit Agreement and (ii) deliver Stock prior to the receipt and cancellation of Receipts pursuant to Section 2.05 of the Deposit Agreement, including Receipts which were issued under (i) above but for which Stock may not have been received. The Depositary may receive Receipts in lieu of Stock under (i) above. Each such transaction shall be (a) accompanied by or subject to (x) a written representation by the person or entity (the "Applicant") to whom Receipts are issued or Stock delivered that at the time the Depositary issued such Receipts or delivers such Stock, the Applicant or its customer owns the Stock or Receipts to be delivered to the Depositary, or (y) such evidence of ownership of Stock or Receipts as the Depositary deems appropriate, (b) subject to a written representation by the Applicant that it will hold such Stock or Receipts in trust for the Depositary until their delivery to the Depositary or custodian, reflect on its records the Depositary as owner of such Stock or Receipts and deliver such Stock upon the Depositary's request, (c) at all times fully collateralized (marked to market daily) with cash, United States government securities, or other collateral of comparable safety and liquidity, (d) terminable by the Depositary on not more than five (5) business days days' notice, and (e) subject to such further indemnities and credit regulations as the Depositary deems appropriate. The Depositary intends that the number of Receipts issued by it under (i) above and outstanding at any time, generally will not exceed thirty percent (30%) of the American Depositary Shares issued by the Depositary with respect to which Stock is on deposit with the Depositary or Custodian; provided, however, that the Depositary reserves the right to change or disregard such limit from time to time as the Depositary deems appropriate. The Depositary will also set limits with respect to the number of Receipts and Stock involved in transactions to be effected hereunder with any one person on a case by case basis as it deems appropriate. Collateral provided by an Applicant for Receipts or Stock, but not the earnings, thereon, shall be held for the benefit of the Holder. The Depositary may retain for its own account any compensation received by it in connection with the foregoing, including, without limitation, earnings on the collateral.