Exhibit 1
EXECUTION COPY
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REGENERA LIMITED
(ACN 107 371 460)
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of _________________, 2004
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.........................................................1
SECTION 1.01 AMERICAN DEPOSITARY SHARES................................1
SECTION 1.02 CHESS.....................................................1
SECTION 1.03 COMMISSION................................................1
SECTION 1.04 COMPANY...................................................2
SECTION 1.05 CUSTODIAN.................................................2
SECTION 1.06 DEPOSIT AGREEMENT.........................................2
SECTION 1.07 DEPOSIT, DELIVER, EXECUTE, ISSUE, REGISTER,
SURRENDER, TRANSFER, WITHDRAW OR CANCEL...................2
SECTION 1.08 DEPOSITARY; CORPORATE TRUST OFFICE........................2
SECTION 1.09 DEPOSITED SECURITIES......................................2
SECTION 1.10 DOLLARS...................................................2
SECTION 1.11 FOREIGN REGISTRAR.........................................2
SECTION 1.12 OWNER.....................................................3
SECTION 1.13 RECEIPTS..................................................3
SECTION 1.14 REGISTRAR.................................................3
SECTION 1.15 RESTRICTED SECURITIES.....................................3
SECTION 1.16 SECTION; ARTICLE..........................................3
SECTION 1.17 SECURITIES ACT OF 1933....................................3
SECTION 1.18 SHARES....................................................3
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.............................................4
SECTION 2.01 FORM AND TRANSFERABILITY OF RECEIPTS......................4
SECTION 2.02 DEPOSIT OF SHARES.........................................4
SECTION 2.03 EXECUTION AND DELIVERY OF RECEIPTS........................5
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND
SPLIT-UP OF RECEIPTS......................................6
SECTION 2.05 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES............7
SECTION 2.06 LIMITATIONS ON EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS........................8
SECTION 2.07 LOST RECEIPTS, ETC........................................8
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS......9
SECTION 2.09 PRE-RELEASE OF RECEIPTS...................................9
SECTION 2.10 MAINTENANCE OF RECORDS....................................9
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS...............9
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.........9
SECTION 3.02 LIABILITY OF OWNER FOR TAXES.............................10
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES..........................10
SECTION 3.04 DISCLOSURE OF INTERESTS..................................10
ARTICLE 4. THE DEPOSITED SECURITIES...........................................11
SECTION 4.01 CASH DISTRIBUTIONS.......................................11
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS..........11
SECTION 4.03 DISTRIBUTIONS IN SHARES..................................12
SECTION 4.04 RIGHTS...................................................12
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY...........................14
SECTION 4.06 FIXING OF RECORD DATE....................................15
SECTION 4.07 VOTING OF DEPOSITED SECURITIES...........................15
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES...................16
SECTION 4.09 REPORTS..................................................16
SECTION 4.10 LISTS OF OWNERS..........................................17
SECTION 4.11 WITHHOLDING..............................................17
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.....................17
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SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS
BY THE DEPOSITARY........................................17
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE COMPANY................................18
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY,
THE CUSTODIAN AND THE COMPANY............................18
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY................19
SECTION 5.05 THE CUSTODIANS...........................................20
SECTION 5.06 NOTICES AND REPORTS......................................20
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC...........21
SECTION 5.08 INDEMNIFICATION..........................................22
SECTION 5.09 CHARGES OF DEPOSITARY....................................22
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS........................23
SECTION 5.11 EXCLUSIVITY..............................................24
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS.....................24
ARTICLE 6. AMENDMENT AND TERMINATION..........................................24
SECTION 6.01 AMENDMENT................................................24
SECTION 6.02 TERMINATION..............................................24
ARTICLE 7. MISCELLANEOUS......................................................25
SECTION 7.01 COUNTERPARTS.............................................25
SECTION 7.02 NO THIRD PARTY BENEFICIARIES.............................25
SECTION 7.03 SEVERABILITY.............................................26
SECTION 7.04 OWNERS AND HOLDERS AS PARTIES; BINDING EFFECT............26
SECTION 7.05 NOTICES..................................................26
SECTION 7.06 SUBMISSION TO JURISDICTION; APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS.............................26
SECTION 7.07 ASSIGNMENT...............................................27
SECTION 7.08 GOVERNING LAW............................................27
SECTION 7.09 COMPLIANCE WITH U.S. SECURITIES LAWS.....................27
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _______________, 2004, among REGENERA
LIMITED (ACN 107 371 460), incorporated under the laws of the Commonwealth of
Australia (herein called the Company), THE BANK OF NEW YORK, a New York banking
corporation (herein called the Depositary), and all Owners and holders from time
to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed
by and between the parties hereto as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares.
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 the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.02 CHESS
The term "CHESS" shall mean the Clearing House Electronic
Subregister System.
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.
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SECTION 1.04 Company.
The term "Company" shall mean Regenera Limited (ACN 107 371 460),
incorporated under the laws of the Commonwealth of Australia, and its
successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the principal Australia office of
HongKong Bank of Australia Ltd., Australia and New Zealand Banking Group Ltd.,
and National Australia Bank Ltd, as agent of the Depositary for the purposes of
this Deposit Agreement, and any other firm or corporation which may hereafter be
appointed by the Depositary pursuant to the terms of Section 5.05, as substitute
or additional custodian or custodians hereunder, as the context shall require
and shall also mean all of them collectively.
SECTION 1.06 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.07 deposit, deliver, execute, issue, register, surrender, transfer,
withdraw or cancel.
The terms "deposit", "deliver", "execute", "issue", "register",
"surrender", "transfer", "withdraw" or "cancel", when used with respect to
Shares, shall refer, where the context requires, to an entry or entries or an
electronic transfer or transfers in an account or accounts maintained by
institutions authorized under Australian law to effect transfers of securities
and not to the physical transfer of certificates representing the Shares.
SECTION 1.08 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.09 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.05.
SECTION 1.10 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.11 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares or if no such agent is so appointed and acting, the
Company.
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SECTION 1.12 Owner.
The term "Owner" shall mean the person or persons in whose name a
Receipt is registered on the books of the Depositary maintained for such
purpose.
SECTION 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares. SECTION 1.14 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 1.15 Restricted Securities.
The term "Restricted Securities shall mean Shares, or American
Depositary Shares representing Shares, that are acquired directly or indirectly
from the Company or its affiliates (as defined in Rule 144 under the Securities
Act of 1933) in a transaction or chain of transactions not involving any public
offering, or which are subject to resale limitations under Regulation D under
that Act or both, or which are held by an officer, director (or persons
performing similar functions) or other affiliate of the Company, or which would
require registration under the Securities Act of 1933 in connection with the
offer and sale thereof in the United States, or which are subject to other
restrictions on sale or deposit under the laws of the United States or
Australia, or under a shareholder agreement or the Company's Constitution.
SECTION 1.16 Section; Article.
Wherever references are made in this Deposit Agreement to a
"Section" or "Sections" or to an "Article" or "Articles", such references shall
mean a section or sections or an article or articles of this Deposit Agreement,
unless the context otherwise requires.
SECTION 1.17 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 1.18 Shares.
The term "Shares" shall mean ordinary shares in registered form of
the Company, without par value, heretofore validly issued and outstanding and
fully paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or interim certificates representing such Shares.
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ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary;
provided, however, that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are countersigned by the
manual signature of a duly authorized officer of the Registrar. The Depositary
shall maintain books on which each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered.
Receipts bearing the manual or facsimile signature of a duly authorized
signatory of the Depositary who was at any time a proper signatory of the
Depositary shall bind the Depositary, notwithstanding that such signatory has
ceased to hold such office prior to the execution and delivery of such Receipts
by the Registrar or did not hold such office on the date of issuance of such
Receipts.
The Receipts may, and upon the written request of the Company shall,
be endorsed with or have incorporated in the text thereof such legends or
recitals or modifications not inconsistent with the provisions of this Deposit
Agreement as may be required by the Depositary or required by the Depositary or
the Company to comply with any applicable law or regulations thereunder or with
the rules and regulations of any securities exchange or automated quotation
system, including without limitation, the NASDAQ National Market, upon which
American Depositary Shares may be listed or quoted 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.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by 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 New York; provided, however, that
the Depositary and the Company, notwithstanding any notice to the contrary, may
treat the Owner thereof as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under this Deposit Agreement to any
holder of a Receipt unless such holder is the Owner thereof.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof (which may include delivery by electronic transfer through the
facilities of CHESS or otherwise) to any Custodian hereunder, accompanied by any
appropriate instrument or instruments of transfer, or endorsement, in form
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satisfactory to the Custodian, together with all such certifications and
payments 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 for the number of American Depositary Shares representing
such deposit. 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 the Commonwealth of Australia, 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 Company or the Foreign Registrar, if applicable,
are closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request, risk and expense of any person proposing to deposit
Shares or evidence of rights to receive Shares, and for the account of such
person, the Depositary may receive Shares to be deposited (by electronic
transfer through the facilities of CHESS or otherwise), documents of title
thereto or evidence that irrevocable instructions have been given to cause the
transfer of such Shares to the account of any Custodian, together with the other
instruments and payments herein specified, for the purpose of forwarding such
documents of title or such other instruments evidencing title as may be required
under the Company's Constitution or applicable law or regulation and evidence to
the Custodian for deposit hereunder.
Upon each delivery to a Custodian of Shares to be deposited
hereunder by electronic transfer through the facilities of CHESS or otherwise
(or other Deposited Securities pursuant to Section 4.02, 4.03 or 4.08), together
with the other documents and payments specified above, if any, such Custodian
shall, as soon as registration of transfer can be accomplished, present such
documents of title or other instruments evidencing title as may be required
under the Company's Constitution or applicable law or regulation to the Company
or the Foreign Registrar, electronically or otherwise, if applicable, for
registration of transfer 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 Company or the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Company
that any Deposited Securities have been recorded upon the books of
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the Company or the Foreign Registrar, electronically or otherwise, if
applicable, in the name of the Depositary or its nominee or such Custodian or
its nominee), together with the other documents required as specified above,
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 or
facsimile 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 at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, 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 fees and expenses of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.09, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall without unreasonable delay register transfers of Receipts on
its transfer books from time to time, upon any surrender of a Receipt, by the
Owner in person or by a 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 a new Receipt or Receipts
evidencing the same aggregate number of American Depositary Shares as were
evidenced by the Receipts surrendered and deliver the same to or upon the order
of the person entitled thereto subject to receipt of any certifications and
agreements by such persons the Depositary and the Company may require in order
to comply with applicable laws.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may, with the approval of the Company, which approval
shall not be unreasonably withheld, 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. Each co-transfer agent
appointed under this Section 2.04 shall give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement. 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.
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SECTION 2.05 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.09 and payment of all taxes and governmental charges payable in connection
with such surrender and withdrawal of the Deposited Securities, and subject to
the terms and conditions of this Deposit Agreement, the Owner of such Receipt
shall be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
evidenced by such Receipt. Delivery of such Deposited Securities may be made (a)
by electronic transfer thereof of Shares through the facilities of CHESS or
otherwise, or delivery of documents of, or other instruments evidencing, title
as may be required under the Company's Constitution or applicable law or
regulation, in the name of such Owner or as ordered by him and (b) the delivery
of any other securities, property and cash to which such Owner is then entitled
in respect of such Receipts to such Owner or as ordered by him. Such delivery
shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered (by electronic
transfer through the facilities of CHESS or otherwise) to or upon the written
order of a person or persons designated in such order. Thereupon the Depositary
shall direct the Custodian to deliver through the facilities of CHESS or by
physical transfer and delivery at the office of such Custodian, subject to
Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this
Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or distributions with respect to the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, or of any proceeds
of sale of any dividends, distributions or rights, which may at the time be held
by the Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, 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 by electronic transfer through the facilities of CHESS or otherwise
documents of, or other instruments evidencing, title as may be required under
the Company's Constitution or applicable law or regulation 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 or at such other place as may be designated by such Owner. Such
direction shall be given by letter or, at the request, risk and expense of such
Owner, by cable, telex or facsimile transmission.
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SECTION 2.06 Limitations on Execution and Delivery, Transfer and Surrender of
Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may, and upon
written request of the Company shall, require payment from the depositor of
Shares or the presentor of the Receipt of a sum sufficient to reimburse it for
any tax or other governmental charge and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with respect to
Shares being deposited or withdrawn) and payment of any applicable fees as
herein provided, may require (a) the production of proof satisfactory to it as
to the identity and genuineness of any signature, (b) compliance with any laws
or regulations, relating to depositary receipts in general or to the withdrawal
or sale of Deposited Securities, (c) delivery of such certificates as the
Company may from time to time specify in writing to the Depositary to assure
compliance with the Securities Act of 1933 and rules and regulations thereunder
and (d) compliance with such reasonable procedures, if any, as the Depositary
may establish consistent with the provisions of this Deposit Agreement,
including, without limitation, this Section 2.06.
After consultation with the Company to the extent practicable, 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 transfer books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or for any other
reason, subject to the provisions of Section 7.07 hereof. Notwithstanding
anything to the contrary in this Deposit Agreement or the Receipts, 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 Company 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 shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before
the Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
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SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. Cancelled Receipts shall not be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose. The Depositary is
authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of Receipts.
Unless requested in writing by the Company 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 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such Receipt has been Pre-Released. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts are to be delivered, that such person, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial right, 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 or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The number of American Depositary Shares which are
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; provided, however, that
the Depositary reserves the right to change or disregard such limit from time to
time as it deems reasonably appropriate.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain records of all Receipts
surrendered and Deposited Securities withdrawn under Section 2.05, substitute
Receipts delivered under Section 2.07, and cancelled or destroyed Receipts under
Section 2.08, in keeping with procedures ordinarily followed by stock transfer
agents located in The City of New York.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF RECEIPTS
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
evidence of the number of Shares beneficially owned or any other matters
necessary or appropriate to evidence compliance with the
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Corporations Law of Australia, the Foreign Acquisitions and Takeovers Xxx 0000,
the Constitution of the Company and exchange control regulations, as indicated
to the Depositary by the Company, or such information relating to the
registration on the books of the Company or the Foreign Registrar, if
applicable, to execute such certificates and to make such representations and
warranties, as the Depositary may deem necessary or proper or as the Company may
reasonably instruct in writing the Depositary to require. The Depositary may,
and at the reasonable written request of the Company shall, 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. The Depositary shall provide the Company, upon the Company's reasonable
written request and at its expense, in a timely manner, with copies of any
information or other material which it receives pursuant to this Section. Each
Owner and holder agrees to provide any information requested by the Company or
the Depositary pursuant to this Section 3.01.
SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt, any American Depositary Share or any Deposited
Securities represented by any American Depositary Share evidenced by any
Receipt, such tax or other governmental charge shall be payable by the Owner of
such Receipt to the Depositary. The Depositary may, and upon receipt of written
instructions from the Company shall, refuse to effect any transfer of such
Receipt (or any split up or combination thereof) 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 the American Depositary Shares
evidenced by such Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner 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 proper evidence of
title therefor, if applicable, are validly issued, fully paid, nonassessable 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 Shares deposited under this Deposit Agreement
and Receipts evidencing American Depositary Shares representing such Shares sold
by that person are not Restricted Securities. Such representations and
warranties shall survive the deposit of Shares and issuance of Receipts.
SECTION 3.04 Disclosure of Interests.
The Company may from time to time request Owners to provide
information as to the capacity in which such Owners own or owned Receipts and
regarding the identity of any other persons then or previously interested in
such Receipts and the nature of such interest. Each Owner agrees to provide any
information requested by the Company or the Depositary pursuant to this Section
3.04. The Depositary agrees to comply with reasonable written instructions
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received from the Company requesting that the Depositary forward any such
requests to the Owners and to forward to the Company any such responses to such
requests received by the Depositary. To the extent that provisions of or
governing any Deposited Securities or the rules or regulations of any
governmental authority or securities exchange or automated quotation system may
require the disclosure of beneficial or other ownership of Deposited Securities,
other Shares and other securities to the Company or other persons and may
provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, the Depositary shall use its reasonable
efforts to comply with Company's instructions in respect of any such enforcement
or limitation.
ARTICLE 4.
THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution on any Deposited Securities, the Depositary shall, subject to
the provisions of Section 4.05, convert such dividend or distribution into
Dollars and shall distribute the amount thus received (net of the fees and
expenses of the Depositary as provided in Section 5.09, if applicable) 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 Company or the Depositary shall be
required to withhold and does withhold from such cash dividend or such other
cash distribution an amount on account of taxes, the amount distributed to the
Owner of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
The Company or its agent will remit to the appropriate governmental agency in
the Commonwealth of Australia all amounts withheld and owing to such agency. The
Depositary will forward to the Company or its agent such information from its
records as the Company may reasonably request to enable the Company or its agent
to file necessary reports with governmental agencies, and the Depositary or the
Company or its agent may file any such reports necessary to obtain benefits
under the applicable tax treaties for the Owners of Receipts.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.09, whenever
the Depositary shall receive any distribution other than a distribution
described in Sections 4.01, 4.03 or 4.04, the Depositary shall cause the
securities or property received by it to be distributed to the Owners entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary or any taxes or other governmental charges, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on
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account of taxes or other governmental charges or that such securities must be
registered under the Securities Act of 1933 in order to be distributed to Owners
or holders) the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees and expenses of
the Depositary as provided in Section 5.09) shall be distributed by the
Depositary to the Owners entitled thereto, all in the manner and subject to the
conditions described in Section 4.01.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall,
subject to the following sentence, if the Company shall so request, 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 evidencing an aggregate number of
American Depositary Shares representing the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and the issuance of
American Depositary Shares evidenced by Receipts, including the withholding of
any tax or other governmental charge as provided in Section 4.11 and the payment
of the fees and expenses of the Depositary as provided in Section 5.09. The
Depositary may withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act of 1933 or is exempt from registration
under the provisions of such Act. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described in
Section 4.01. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04 Rights.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Company, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any rights the
Depositary reasonably determines in its discretion that it is lawful and
feasible to make such rights available to all Owners or to 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 of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Company to the Depositary that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 of this Deposit Agreement, execute and deliver Receipts
to such Owner. In the case of a distribution pursuant to the second paragraph of
this section, such Receipts shall be legended in 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 reasonably determines in its discretion that it is
not lawful and feasible to make such rights available to all or certain Owners,
it may sell the rights, warrants or other instruments in proportion to the
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of this Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, 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
all Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create, any obligation on the part of
the Company to file a registration statement under the Securities Act of 1933
with respect to such rights or underlying securities or to endeavor to have such
a registration statement declared effective or otherwise to register such rights
or securities under any other applicable laws for any purpose. If an Owner of
Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under the Securities
Act of 1933, the Depositary shall not effect such distribution unless it has
received an opinion from recognized
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counsel in the United States for the Company upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments 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 and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable;
provided, however, that in no event shall the Company be required to make any
such filing.
If at any time the Depositary shall determine that in its judgment
any foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary is
not obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
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SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date which shall, insofar as is reasonably practicable, be as
close as possible to the record date established by the Company in respect of
the Shares or other Deposited Securities (if applicable) (a) for the
determination of the Owners who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof, (ii) entitled to
give instructions for the exercise of voting rights at any such meeting or (iii)
responsible for any fee assessed by the Depositary pursuant to this Deposit
Agreement, or (b) on or after which each American Depositary Share will
represent the changed number of Shares. Subject to the provisions of Sections
4.01 through 4.05 and to the other terms and conditions of this Deposit
Agreement, the Owners on such record date shall be entitled, as the case may be,
to receive the amount distributable by the Depositary with respect to such
dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively and to give voting instructions and to act in respect of any other
such matter.
SECTION 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the discretion of the Depositary, unless otherwise
advised to the Depositary by the Company in writing, which shall contain (a)
such information as is contained in such notice of meeting received by the
Depositary from the Company, and (b) a statement that the Owners as of the close
of business on a specified record date will be entitled, subject to any
applicable provision of Australian law and of the Company's Constitution and any
other provisions governing the Deposited Securities, to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the amount of
Shares or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated by the Company. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose (the "Instruction Date"), the
Depositary shall endeavor, in so far as practicable, to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions or deemed
instructions. If no instructions are received by the Depositary from any Owner
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts on or before the date
established by the Depositary for such purpose, the
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Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
that no such instruction shall be deemed given and no such discretionary proxy
shall be given with respect to any matter as to which the Company informs the
Depositary (and the Company agrees to provide such information as promptly as
practicable in writing) that (x) the Company does not wish such proxy given, (y)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph
SECTION 4.08 Changes Affecting Deposited Securities.
Upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, or upon the redemption or
cancellation by the Company of the Deposited Securities, any securities, cash or
property which shall be received by the Depositary or a Custodian in exchange
for or in conversion of, in lieu of or in respect of Deposited Securities, shall
if permitted by applicable law, be treated as new Deposited Securities under
this Deposit Agreement, and American Depositary Shares shall thenceforth
represent, in addition to the existing Deposited Securities, the right to
receive the new Deposited Securities so received, unless additional Receipts are
delivered pursuant to the following sentence. In any such case the Depositary
may, and shall if the Company shall so request, execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
Immediately upon the occurrence of any such split-up, consolidation
or any other reclassification covered by this Section 4.08 in respect of
Deposited Securities, the Company shall notify the Depositary in writing of such
occurrence and may instruct the Depositary to give notice thereof, at the
Company's expense, to Owners in accordance with Section 5.06 of the Deposit
Agreement.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Owners copies of such
reports furnished by the Company pursuant to Section 5.06.
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SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the
expense of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the books of the Depositary, any non objecting
holders lists which can be obtained by the Depositary from a third party on the
Company's behalf and at the Company's expense and other reports requested by the
Company, as practicable.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for
the registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Owners, provided that such inspection
shall not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder or at the reasonable written request of the Company.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges or automated quotation systems in the
United States (including, without limitation, the NASDAQ National Market), the
Depositary shall act as Registrar or appoint a Registrar or one or more co
registrars for registry of such Receipts for such period as the Depositary acts
as depositary bank in accordance with any requirements of such exchange or
exchanges or systems.
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Each Registrar and co-registrar appointed under this Section 5.01
shall give notice in writing to the Company and the Depositary accepting such
appointment and agreeing to be bound by the applicable terms of this Deposit
Agreement.
The Company shall have the right, at all reasonable times, to
inspect transfer and registration records of the Depositary, the Registrar and
any co-transfer agents or co-registrars and to require such parties to supply
copies of such portions of their records relating thereto as the Company may
reasonably request.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or holder of any Receipt, (i) if by reason of any provision of any
present or future law or regulation of the United States, Australia, or any
other country, or of any governmental or regulatory authority or stock exchange
or automated quotation system (including without limitation, the NASDAQ National
Market), or by reason of any provision, present or future, of the Company's
Constitution, or by reason of any provision of any securities issued or
distributed by the Company, or any offering or distribution thereof, or by
reason of any act of God or war or terrorism or other circumstances beyond its
control, the Depositary or the Company (or any of their respective directors,
officers, employees, agents or affiliates) shall be prevented, delayed or
forbidden from, or be subject to any civil or criminal penalty on account of,
doing or performing any act or thing which by the terms of this Deposit
Agreement or Deposited Securities it is provided shall be done or performed,
(ii) 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, (iii) by reason of any exercise
of, or failure to exercise, any discretion provided for in this Deposit
Agreement, (iv) for the inability of any Owner or holder to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Owners or holders, or (v) for any special,
consequential or punitive damages for any breach of the terms of this Deposit
Agreement. Where, by the terms of a distribution pursuant to Sections 4.01,
4.02, or 4.03 of the Deposit Agreement, or an offering or distribution pursuant
to Section 4.04 of the Deposit Agreement, or for any other reason, such
distribution or offering may not be made available to Owners, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse.
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company, its directors, officers, employees, agents and
affiliates assume no obligation nor shall any of them be subject to any
liability under this Deposit Agreement to Owners or holders, except that the
Company agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary, its directors, officers, employees, agents and
affiliates assume no obligation nor shall any of them be subject to any
liability under this Deposit Agreement to any
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Owner or holder (including, without limitation, liability with respect to the
validity or worth of the Deposited Securities), except that the Depositary
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates 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
on behalf of any Owner or holder or any person.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
Each of the Depositary, the Company and their directors, officers,
employees, agents and controlling persons may rely and shall be protected in
acting upon any written notice, request, direction or other document believed by
such person to be genuine and to have been signed or presented by the proper
party or parties.
The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days
prior written notice of such removal, to become effective upon the later of (i)
the 120th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or
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trust company having an office in the Borough of Manhattan, The City of New
York. Every successor depositary shall execute and deliver to its predecessor
and to the Company an instrument in writing accepting its appointment hereunder,
and thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor; but such predecessor, nevertheless, upon payment of all sums due it
and on the written request of the Company shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Deposited Securities to such successor, and shall deliver to
such successor a list of the Owners of all outstanding Receipts. Any such
successor depositary shall promptly mail notice of its appointment to the
Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to
the directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. Whenever the Depositary in its
discretion determines that it is in the best interest of the Owners to do so, it
may appoint a substitute or additional custodian or custodians, each of which
shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it (by electronic delivery through the facilities of CHESS or otherwise) as are
requested of it to any other Custodian or such substitute or additional
custodian or custodians together with all records maintained by it with respect
to the Deposited Securities. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
shareholder rights, the Company agrees to transmit to the
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Depositary and the Custodian a copy of the notice thereof in the form given or
to be given to holders of Shares or other Deposited Securities.
The Company will arrange for the prompt transmittal by the Company
to the Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Company to holders of
its Shares. If requested in writing by the Company, the Depositary will arrange
for the mailing, at the Company's expense, of copies of such notices, reports
and communications to all Owners or, at the reasonable request of the Company,
make copies thereof available to all Owners in the same manner as the Company
makes such documents generally available to holders of Shares, or on such other
basis as the Company may advise the Depositary as being required by any law or
regulation or any requirement of any stock exchange or automated quotation
system (including, without limitation, the NASDAQ National Market) to which the
Company may be subject. The Company will timely provide the Depositary with the
quantity of such notices, reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution
of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for such
securities, (each a "Distribution") the Company will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Company, which counsel
shall be reasonably satisfactory to the Depositary, stating whether or not the
Distribution requires a registration statement under the Securities Act of 1933
to be in effect prior to making such Distribution available to Owners entitled
thereto. If in the opinion of such counsel a Registration Statement is required,
such counsel shall furnish to the Depositary a written opinion as to whether or
not there is a Registration Statement in effect which will cover such
Distribution.
Nothing in this Section 5.07 or elsewhere in this Deposit Agreement
shall create any obligation on the part of the Company or the Depositary to file
a registration statement under the Securities Act of 1933 in respect of any such
securities or rights.
The Company agrees with the Depositary that neither the Company nor
any person controlled by, controlling or under common control with the Company
will at any time deposit any Shares, either originally issued or previously
issued and reacquired by the Company or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933 or an exemption is provided by the Securities Act of 1933.
The Depositary will comply with the written instructions of the
Company not to accept knowingly for deposit hereunder any Shares identified in
such instructions at such times and under such circumstances as may be specified
in such instructions in order to facilitate the Company's compliance with the
securities laws of the United States.
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SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors,
officers, employees, agents and affiliates, and any Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the reasonable fees and expenses of counsel) which may arise out of any
registration with the Commission of Receipts, American Depositary Shares or
Deposited Securities or the offer or sale thereof in the United States or out of
acts performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, officers, employees, agents and affiliates, except
for any liability or expense arising out of the negligence or bad faith of any
of them, or (ii) by the Company or any of its directors, officers, employees,
agents and affiliates.
The Depositary agrees to indemnify the Company, its directors,
officers, employees, agents and affiliates and hold them harmless from any
liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or its Custodian or their respective directors, officers, employees,
agents and affiliates due to their negligence or bad faith.
If an action or proceeding (including, but not limited to, any
governmental investigation, claim or dispute) in respect of which indemnity may
be sought by either party is brought or asserted against the other party, the
party seeking indemnification (the "Indemnitee") shall promptly notify the other
party (the "Indemnitor") in writing of such proceeding giving reasonable details
thereof. The Indemnitor shall be entitled to participate in such proceeding and,
to the extent no conflict of interest exists in the conduct of the defense, to
assume the defense thereof with counsel reasonably satisfactory to the
Indemnitee. After notice from the Indemnitor to the Indemnitee of its election
to assume the defense, and provided no conflict of interest exists, the
Indemnitor shall not be liable to the Indemnitee for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by the
Indemnitee, in connection with the defense other than reasonable costs of
investigation. No compromise or settlement of such action or proceeding may be
effected by either party without the other party's consent (which shall not be
unreasonably withheld) unless (i) there is no finding or admission of any
violation of law and no effect on any other claims that may be made against such
other party and (ii) the sole relief provided is monetary damages that are paid
in full by the party seeking such compromise or settlement.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company at least once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
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The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), or by Owners, as applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to or from
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts
pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04
hereof, (7) a fee for the distribution of securities pursuant to Section 4.02,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners, (8) a fee of $.02 or less per American
Depositary Share (or portion thereof) for depositary services, which will accrue
on the last day of each calendar year and which will be payable as provided in
clause (9) below; provided, however, that no fee will be assessed under this
clause (8) to the extent a fee of $.02 was charged pursuant to clause (6) above
during that calendar year and (9) any other charge payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.06 and shall be
payable at the sole discretion of the Depositary by billing such Owners for such
charge or by deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in
any class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Company requests that such papers be retained for a longer period or turned over
to the Company or to a successor depositary. Obligations arising under this
Section 5.10 prior to the termination of this Deposit Agreement are not
discharged by such termination.
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SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance
of American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder, other than a successor depositary as provided in Section
5.04 hereof.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a
list setting forth, to the actual knowledge of the Company, those persons or
entities who beneficially own Restricted Securities and the Company shall update
that list on a regular basis. The Company agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon.
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary without the consent of Owners or holders of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners, shall, however,
not become effective as to outstanding Receipts until the expiration of thirty
days after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law.
The Company and the Depositary shall amend the Deposit Agreement as
necessary to reflect changes from time to time in Australian law and the
Company's Constitution
SECTION 6.02 Termination.
The Depositary shall, at any time at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 60 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding at least 30 days prior to the date of
termination, if at any time 30 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04. On and after the date of termination,
the Owner of a Receipt will, upon (a) surrender of such Receipt at the Corporate
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Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 2.05, and (c) payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners thereof, shall not accept deposits of
Shares (and shall so instruct each Custodian) and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of four months
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges) and except for its obligations to the
Company under Section 5.08 hereof. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary under Sections
5.08 and 5.09 hereof.
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any Owner or holder of a Receipt during business
hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
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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 Holders as Parties; Binding Effect.
The Owners and holders of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed to
have been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to Regenera Limited,
Ground Floor, 117 Stirling Highway, Nedlands, WA Xxxxxxxxx, 0000, Attention:
Chief Financial Officer, or any other place to which the Company 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 in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, 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 transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be 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 Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Company hereby (i) irrevocably designates and appoints
Corporation Service Company ("CSC"), 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as the Company's authorized agent upon which process may be served
in any suit or proceeding arising out of or relating to the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or this Deposit
Agreement, (ii) consents and submits to the jurisdiction of any state or federal
court in the State of New York in which any such suit or proceeding may be
instituted,
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and (iii) agrees that service of process upon said authorized agent shall be
deemed in every respect effective service of process upon the Company in any
such suit or proceeding. The Company agrees to deliver, upon the execution and
delivery of this Deposit Agreement, a written acceptance by such agent of its
appointment as such agent. The Company further agrees to take any and all
action, including the filing of any and all such documents and instruments, as
may be necessary to continue such designation and appointment in full force and
effect for so long as any American Depositary Shares or Receipts remain
outstanding or this Deposit Agreement remains in force. In the event the Company
fails to continue such designation and appointment in full force and effect, the
Company hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed.
SECTION 7.07 Assignment.
This Deposit Agreement may not be assigned by either the Company or
the Depositary.
SECTION 7.08 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, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of Australia.
SECTION 7.09 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Company and the Depositary each agrees that it will not exercise any rights
it has under this Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
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IN WITNESS WHEREOF, REGENERA LIMITED (ACN 107 371 460) and THE BANK
OF NEW YORK have duly executed this Deposit Agreement as of the day and year
first set forth above and all Owners shall become parties hereto upon acceptance
by them of Receipts issued in accordance with the terms hereof.
REGENERA LIMITED
By:______________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:______________________
Name:
Title:
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EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents ten (10) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
WITHOUT PAR VALUE OF
REGENERA LIMITED (ACN 107 371 460)
(INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF AUSTRALIA)
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 (herein called "Shares") of Regenera
Limited, incorporated under the laws of the Commonwealth of Australia (herein
called the "Company"). At the date hereof, each American Depositary Share
represents ten (10) Shares deposited or subject to deposit under the Deposit
Agreement (as such term is hereinafter defined) at the principal Australia
office of HongKong Bank of Australia Ltd., Australia and New Zealand Banking
Group Ltd., and National Australia Bank Ltd (herein called the "Custodian"). The
Depositary's Corporate Trust Office is located at a different address than its
principal executive office. Its Corporate Trust Office is located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive office is located at
Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of _________________, 2004, (herein called
the "Deposit Agreement"), by and among the Company, the Depositary, and all
Owners and holders 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 holders 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 surrender at the Corporate Trust Office of the Depositary of
this Receipt, and upon payment of the fee of the Depositary provided in this
Receipt, and subject to the terms and conditions of the Deposit Agreement, the
Owner hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made (a) by
the electronic transfer thereof of Shares through the facilities of CHESS or
otherwise or the delivery of documents of title or other instruments evidencing
title, as may be required under the Company's Constitution or applicable law or
regulation in the name of the Owner hereof or as ordered by him and (b) by the
delivery of any other securities, property and cash to which such Owner is then
entitled in respect of this Receipt. Such delivery will be made at the option of
the Owner hereof, either at the office of the Custodian or at the Corporate
Trust Office of the Depositary or at such other place as may be designated by
such Owner, provided that the forwarding of certificates for Shares or other
Deposited Securities for such delivery at the Corporate Trust Office of the
Depositary shall be at the risk and expense of the Owner hereof.
3. TRANSFERS, SPLIT UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable without unreasonable
delay on the books of the Depositary at its Corporate Trust Office by the Owner
hereof in person or by a 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
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, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered. As a condition precedent to the execution
and delivery, registration of transfer, split up, combination,
2
or surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary, the Custodian, or Registrar may and upon written request of the
Company shall, require payment from the depositor of the Shares or the presentor
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require (a) the production of proof satisfactory to it as to the
identity and genuineness of any signature, (b) compliance with any laws or
regulations, relating to depositary receipts in general or to the withdrawal or
sale of Deposited Securities, (c) delivery of such certificates as the Company
may from time to time specify in writing to the Depositary to assure compliance
with the Securities Act of 1933 and the rules and regulations thereunder and (d)
compliance with such reasonable procedures, if any, as the Depositary may
establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Article 3.
After consultation with the Company to the extent practicable, 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 transfer books
of the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement or this Receipt, or
for any other reason, subject to the provisions of Article 22 hereof.
Notwithstanding anything to the contrary in the Deposit Agreement or this
Receipt, 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 Company 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 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, any American Depositary Share or any Deposited
Securities represented by any American Depositary Share evidenced hereby, such
tax or other governmental charge shall be payable by the Owner hereof to the
Depositary. The Depositary may, and upon receipt of written instructions from
the Company shall, refuse to effect any transfer of such Receipt (or any
split-up or combination thereof) or any transfer of this 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
hereof any part or all of the Deposited Securities represented by the 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
3
hereof shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and proper evidence of
title therefore, if applicable, are validly issued, fully paid, nonassessable,
and free of any preemptive 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 Shares deposited under the Deposit
Agreement and Receipts evidencing American Depositary Shares representing such
Shares sold by that person are not Restricted Securities. Such representations
and warranties shall survive the deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
evidence of the number of Shares beneficially owned or any other matters
necessary or appropriate to evidence compliance with the Corporations Law of
Australia, the Foreign Acquisitions and Takeovers Xxx 0000, the Constitution of
the Company and exchange control regulations, as indicated to the Depositary by
the Company, or such information relating to the registration on the books of
the Company or the Foreign Registrar, if applicable, to execute such
certificates and to make such representations and warranties, as the Depositary
may deem necessary or proper or as the Company may reasonably instruct in
writing the Depositary to require. The Depositary may, and at the reasonable
written request of the Company shall, 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 the Commonwealth of Australia, if any, which is then performing the function
of the regulation of currency exchange. The Depositary shall provide the
Company, upon the Company's reasonable written request and at its expense, in a
timely manner, with copies of any information or other material which it
receives pursuant to this Article 6. Each Owner and holder agrees to provide any
information requested by the Company or the Depositary pursuant to this Article
6.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company at least once every three months. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
4
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to or from the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the Deposit Agreement and
the surrender of Receipts pursuant to Section 2.05 or 6.02 of the Deposit
Agreement, (6) a fee of $.02 or less per American Depositary Share (or portion
thereof) for any cash distribution made pursuant to Sections 4.01 through 4.04
of the Deposit Agreement, (7) a fee for the distribution of securities pursuant
to Section 4.02 of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 7 treating all such securities as if
they were Shares), but which securities are instead distributed by the
Depositary to Owners, (8) a fee of $.02 or less per American Depositary Share
(or portion thereof) for depositary services, which will accrue on the last day
of each calendar year and which will be payable as provided in clause (9) below;
provided, however, that no fee will be assessed under this clause (8) to the
extent a fee of $.02 was charged pursuant to clause (6) above during that
calendar year and (9) any other charge payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.06 of the Deposit Agreement and
shall be payable at the sole discretion of the Depositary by billing such Owners
for such charge or by deducting such charge from one or more cash dividends or
other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Company 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 ("a Pre-Release"). The Depositary may, pursuant to Section
2.05 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written
5
representation from the person to whom Receipts or Shares are to be delivered,
that such person, or its customer, (i) owns the Shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial right, 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 or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-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 change or disregard
such limit from time to time as it deems reasonably appropriate.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and
holder 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 New York; provided,
however, that until a Receipt shall have been transferred on the books of the
Depositary as provided in Section 2.04 of the Deposit Agreement, the Company 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 or for all other purposes, and neither the Depositary
nor the Company shall have any obligation or be subject to any liability under
the Deposit Agreement to any holder of a Receipt unless such holder is the Owner
thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange
Commission (hereinafter called the "Commission") with certain public reports and
documents required by
6
foreign law or otherwise under Rule 12g3-2(b) under the Securities Exchange Act
of 1934. Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of
Receipts at its Corporate Trust Office any reports and communications, including
any proxy soliciting material, received from the Company which are both (a)
received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the
Company. The Depositary will also, upon written request, send to Owners of
Receipts copies of such reports when furnished by the Company pursuant to the
Deposit Agreement.
The Depositary will keep books, at its Corporate Trust Office, for
the registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, if at the time
of receipt thereof any amounts received in a foreign currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
Dollars transferable to the United States, and subject to the Deposit Agreement,
convert such dividend or distribution into dollars and will distribute the
amount thus received (net of the fees and expenses of the Depositary as provided
in Article 7 hereof and Section 5.09 of the Deposit Agreement, if applicable) to
the Owners of Receipts entitled thereto; provided, however, that in the event
that the Company or the Depositary is required to withhold and does withhold
from any cash dividend or other cash distribution in respect of any Deposited
Securities an amount on account of taxes, the amount distributed to the Owners
of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 and Section 5.09 of the
Deposit Agreement, whenever the Depositary receives any distribution other than
a distribution described in Sections 4.01, 4.03 or 4.04 of the Deposit
Agreement, the Depositary will cause the securities or property received by it
to be distributed to the Owners entitled thereto, after deduction or upon
payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in proportion to the number of American Depositary Shares
representing such Deposited Securities 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 of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale
7
(net of the fees and expenses of the Depositary as provided in Article 7 hereof
and Section 5.09 of the Deposit Agreement) shall be distributed by the
Depositary to the Owners of Receipts entitled thereto, all in the manner and
subject to the conditions described in Section 4.01 of the Deposit Agreement.
If any distribution consists of a dividend in, or free distribution
of, Shares, the Depositary may, and shall, subject to the following sentence, if
the Company shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees and expenses of the Depositary as provided in Article 7
hereof and Section 5.09 of the Deposit Agreement. The Depositary may withhold
any such distribution of Receipts if it has not received satisfactory assurances
from the Company that such distribution does not require registration under the
Securities Act of 1933 or is exempt from registration under the provisions of
such Act. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary will sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions described in Section 4.01 of the
Deposit Agreement. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and 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 of Receipts
entitled thereto.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall after
consultation with the Company, 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 reasonably determines in its discretion that it is
lawful and feasible to make such rights available to all Owners or to 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,
8
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner under the Deposit Agreement, the Depositary will make such
rights available to such Owner upon written notice from the Company to the
Depositary that (a) the Company has elected in its sole discretion to permit
such rights to be exercised and (b) such Owner has executed such documents as
the Company has determined in its sole discretion are reasonably required under
applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant
to Section 2.03 of the Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
Article 13, 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 reasonably determines in its discretion that it is
not lawful and feasible to make such rights available to all or certain Owners,
it may sell the rights, warrants or other instruments in proportion to the
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes
and governmental charges payable in connection with such rights and subject to
the terms and conditions of the Deposit Agreement) for the account of such
Owners otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Owners because of exchange restrictions or the date of delivery of any Receipt
or otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in the Deposit Agreement shall create, any obligation on the part of the
Company to file a registration statement under the Securities Act of 1933 with
respect to such rights or underlying securities or to endeavor to have such a
registration statement declared effective or otherwise to register such rights
or securities under any other applicable laws for any purpose. If an Owner of
Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under the Securities
Act of 1933, the Depositary shall not effect such distribution unless it has
received an opinion from recognized
9
counsel in the United States for the Company upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments 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 and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable;
provided, however, that in no event shall the Company be required to may any
such filing.
If at any time the Depositary shall determine that in its judgment
any foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary is
not obtainable, or if any such approval or license is not obtained within a
reasonable period as determined by the Depositary, the Depositary may distribute
the foreign currency (or an appropriate document evidencing the right to receive
such foreign currency) received by the Depositary to, or in its discretion may
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
10
15. 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 the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date which shall, insofar as is reasonably practicable, be as
close as possible to the record date established by the Company in respect of
the Shares or other Deposited Securities (if applicable) (a) for the
determination of the Owners of Receipts who shall be (i) entitled to receive
such dividend, distribution or rights or the net proceeds of the sale thereof,
(ii) entitled to give instructions for the exercise of voting rights at any such
meeting or (iii) responsible for any fee assessed by the Depositary pursuant to
the Deposit Agreement, or (b) on or after which each American Depositary Share
will represent the changed number of Shares, subject to the provisions of the
Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the discretion of the Depositary,
unless otherwise advised to the Depositary by the Company in writing, which
shall contain (a) such information as is contained in such notice of meeting
received by the Depositary from the Company, and (b) a statement that the Owners
as of the close of business on a specified record date will be entitled, subject
to any applicable provision of Australian law and of the Constitution of the
Company and any other provisions governing Deposited Securities, to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
amount of Shares or other Deposited Securities represented by their respective
American Depositary Shares and (c) a statement as to the manner in which such
instructions may be given or deemed given in accordance with the last sentence
of this paragraph if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated to the Company. Upon the written
request of an Owner of a Receipt on such record date, received on or before the
date established by the Depositary for such purpose (the "Instruction Date"),
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions or deemed
instructions. If no instructions are received by the Depositary from any Owner
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts on or before the date
established by the Depositary for such purpose, the Depositary shall deem such
Owner to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities; provided, that no such instruction
shall be deemed given and no such discretionary
11
proxy shall be given with respect to any matter as to which the Company informs
the Depositary (and the Company agrees to provide such information as promptly
as practicable in writing) that (x) the Company does not wish such proxy given,
(y) substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the preceding paragraph
sufficiently prior to the Instruction Date to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall, if permitted by
applicable law, be treated as new Deposited Securities under the Deposit
Agreement, and American Depositary Shares shall thenceforth represent, in
addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, and shall if the Company shall so request, execute and deliver
additional Receipts as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
Immediately upon the occurrence of any such split-up, consolidation
or any other reclassification, or conversion or exchange, covered by Section
4.08 of the Deposit Agreement in respect of Deposited Securities, the Company
shall notify the Depositary in writing of such occurrence and may instruct the
Depositary to give notice thereof, at the Company's expense, to Owners in
accordance with the Deposit Agreement.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or holder of any Receipt, (i) if by reason of any provision of any
present or future law or regulation of the United States, Australia or any other
country, or of any other governmental or regulatory authority or stock exchange
or automated quotation system (including, without limitation, the NASDAQ
National Market, or by reason of any provision, present or future, of the
Constitution of the Company, or by reason of any provision of any securities
issued or distributed by the Company, or any offering or distribution thereof,
or by reason of any act of God or war or terrorism or other circumstances beyond
its control, the Depositary or the Company(or any of their respective directors,
officers, employees, agents or affiliates) shall be prevented, delayed or
forbidden from or be subject to any civil or criminal penalty on account of
doing or performing any act or thing which by the terms of the Deposit Agreement
or Deposited Securities it is provided shall be done
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or performed, (ii) by reason of any non-performance or delay, caused as
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, (iii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement, (iv) for the inability of any Owner or holder to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Owners or holders, or (v) for any special,
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. Where, by the terms of a distribution pursuant to Sections 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, such distribution or offering may not be
made available to Owners of Receipts, 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
Company nor the Depositary nor any of their respective directors, officers,
employees, agents and affiliates assumes any obligation or shall be subject to
any liability under the Deposit Agreement to Owners or holders of Receipts,
except that they agree to perform their obligations specifically set forth in
the Deposit Agreement without negligence or bad faith. The Depositary shall not
be subject to any liability with respect to the validity or worth of the
Deposited Securities. Neither the Depositary nor the Company nor any of their
respective directors, officers, employees, agents or affiliates 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,
on behalf of any Owner or holder or other person. Neither the Depositary nor the
Company nor any of their respective directors, employees, officers, agents or
affiliates shall be liable for any action or nonaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Owner or holder of a Receipt, or any other
person believed by it in good faith to be competent to give such advice or
information. Each of the Depositary, the Company and their directors, officers,
employees, agents and controlling persons may rely and shall be protected in
acting upon any written notice, request, direction or other document believed by
such person to be genuine and to have been signed or presented by the proper
party or parties. The Depositary shall not be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is in good faith. The Depositary shall not be
liable for any acts or omissions made by a successor depositary whether in
connection with a previous act or omission of the Depositary or in connection
with a matter arising wholly after the removal or resignation of the Depositary,
provided that in connection with the issue out of which such potential liability
arises, the Depositary performed its obligations without negligence or bad faith
while it acted as Depositary. The Company agrees to indemnify the Depositary,
its directors, officers, employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the fees and expenses of counsel) which may
arise out of any registration with the Commission of Receipts, American
Depositary Shares or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted, in accordance with the
provisions 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 or their respective directors, officers, employees,
agents and
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affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them, or (ii) by the Company or any of its directors,
officers, employees, agents and affiliates. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by 120 days
prior written notice of such removal, to become effective upon the later of (i)
the 120th day after delivery of the notice to the Depositary and (ii) 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 of Receipts to do so,
it may appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary without the consent of Owners or holders of Receipts
in any respect which they may deem necessary or desirable. Any amendment which
shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or which shall otherwise
prejudice any substantial existing right of Owners of Receipts, shall, however,
not become effective as to outstanding Receipts until the expiration of thirty
days after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner of a Receipt at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby except in order to comply with mandatory
provisions of applicable law. The Company and the Depositary shall amend the
Deposit Agreement as necessary to reflect changes from time to time in
Australian law and the Company's Constitution.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Company
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 60 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding at least 30 days prior to the date of
termination, if at any time 30 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in the Deposit Agreement. On and
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after the date of termination, the Owner of a Receipt will, upon (a) surrender
of such Receipt at the Corporate Trust Office of the Depositary, (b) payment of
the fee of the Depositary for the surrender of Receipts referred to in Section
2.05 of the Deposit Agreement, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, shall not accept deposits of Shares (and shall
so instruct each Custodian), and shall not give any further notices or perform
any further acts under the Deposit Agreement, except that the Depositary shall
continue to collect dividends and other distributions pertaining to Deposited
Securities, shall sell rights and other property as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges). At any time after
the expiration of four months from the date of termination, the Depositary may
sell the Deposited Securities then held under the Deposit Agreement and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it thereunder, unsegregated and without liability for
interest, for the pro rata benefit of the Owners of Receipts which have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Owner of such Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges) and except for its obligations to the Company under Section 5.08 of the
Deposit Agreement. Upon the termination of the Deposit Agreement, the Company
shall be discharged from all obligations under the Deposit Agreement except for
its obligations to the Depositary with respect to indemnification, charges, and
expenses of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to
the contrary, the Company 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 U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
23. DISCLOSURE OF INTERESTS.
The Company may from time to time request Owners to provide
information as to the capacity in which such Owners own or owned Receipts and
regarding the identity of any other persons then or previously interested in
such Receipts and the nature of such interest. Each
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Owner agrees to provide any information requested by the Company or the
Depositary pursuant to Section 3.04 of the Deposit Agreement. The Depositary
agrees to comply with reasonable written instructions received from the Company
requesting that the Depositary forward any such requests to the Owners and to
forward to the Company any such responses to such requests received by the
Depositary. To the extent that provisions of or governing any Deposited
Securities or the rules or regulations of any governmental authority or
securities exchange or automated quotation system may require the disclosure of
beneficial or other ownership of Deposited Securities, other Shares and other
securities to the Company or other persons and may provide for blocking transfer
and voting or other rights to enforce such disclosure or limit such ownership,
the Depositary shall use its reasonable efforts to comply with Company's
instructions in respect of any such enforcement or limitation.
24. SUBMISSION TO JURISDICTION.
In the Deposit Agreement, the Company has (i) appointed Corporation
Service Company ("CSC"), 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
as the Company's authorized agent upon which process may be served in any suit
or proceeding arising out of or relating to the Shares or Deposited Securities,
the American Depositary Shares, the Receipts or this Agreement, (ii) consented
and submitted to the jurisdiction of any state or federal court in the State of
New York in which any such suit or proceeding may be instituted, and (iii)
agreed that service of process upon said authorized agent shall be deemed in
every respect effective service of process upon the Company in any such suit or
proceeding.
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