EFFECTIVE January 10, 2007, THE
COMPANYS NAME HAS CHANGED
TO STAGING CONNECTIONS GROUP
LIMITED.
Exhibit A to Deposit Agreement
No.
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents twenty (20) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
WITHOUT PAR VALUE OF
ISIS COMMUNICATIONS LIMITED
(ACN 000 000 000)
(INCORPORATED UNDER THE LAWS
OF THE STATE OF
VICTORIA, 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 Isis Communications
Limited (ACN 000 000 000), incorporated
under the laws of the State of Victoria,
Australia (herein called the Issuer). At the
date hereof, each American Depositary Share
represents twenty (20) Shares which are
either deposited or subject to deposit under
the deposit agreement at the principal
Melbourne, Victoria, Australia office of
National Australia Bank Limited and the
principal Melbourne, Victoria, Australia
office of Australia and New Zealand Banking
Group Limited (herein collectively called the
Custodian). The Depositarys 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 DEPOSITARYS 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 March 9, 2000 (herein called the
Deposit Agreement), by and among the
Issuer, 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 Depositarys 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 by the
delivery of (a) certificates in the name of the
Owner hereof or as ordered by him or by the
delivery of certificates properly endorsed or
accompanied by proper instruments of
transfer and (b) 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,
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.
Notwithstanding any other provision of the
Deposit Agreement or this Receipt, the
surrender of outstanding Receipts and
withdrawal of Deposited Securities may be
suspended only for (i) temporary delays
caused by closing the transfer books of the
Depositary or the Issuer or the deposit of
Shares in connection with voting at a
shareholders meeting, or the payment of
dividends, (ii) the payment of fees, taxes and
similar charges, and (iii) compliance with any
U.S. or foreign laws or governmental
regulations relating to the Receipts or to the
withdrawal of the Deposited Securities.
3. TRANSFERS, SPLITUPS, AND
COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is
registrable on the books of the Depositary at
its Corporate Trust Office by the Owner
hereof in person or by 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, splitup,
combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the
Depositary, the Custodian, or Registrar may
require payment from 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
the production of proof satisfactory to it as to
the identity and genuineness of any signature
and may also require compliance with such
reasonable procedures, if any, as the
Depositary and the Issuer may establish
consistent with the provisions of the Deposit
Agreement or this Receipt.
The delivery of Receipts against
deposits of Shares generally or against
deposits of particular Shares may be
suspended, or the transfer of Receipts in
particular instances may be refused, or the
registration of transfer of outstanding
Receipts generally may be suspended, during
any period when the transfer books of the
Depositary are closed, or if any such action is
deemed necessary or advisable by the
Depositary or the Issuer at any time or from
time to time because of any requirement of
law or of any government or governmental
body or commission, or under any provision
of the Deposit Agreement or this Receipt, or
for any other reason, subject to Article (22)
hereof. Without limitation of the foregoing,
the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any
Shares that, if sold by the owner thereof in the
United States, would be required to be
registered under the provisions of the
Securities Act of 1933, unless a registration
statement is in effect as to such Shares.
4. LIABILITY OF OWNER FOR
TAXES.
If any tax or other governmental
charge shall become payable with respect to
any Receipt or any Deposited Securities
represented hereby, such tax or other
governmental charge shall be payable by the
Owner hereof to the Depositary. The
Depositary may, and upon receipt of
instructions from the Issuer shall, (refuse to
effect any splitup 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 hereof
shall remain liable for any deficiency.
5. WARRANTIES OF
DEPOSITORS.
Every person depositing Shares under
the Deposit Agreement shall be deemed
thereby to represent and warrant that such
Shares and each certificate therefor 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 the Shares deposited by that
person are not Restricted Securities and that
the deposit of such Shares and the sale of
Receipts evidencing American Depositary
Shares representing such Shares by that
person are not restricted under the Securities
Act of 1933. 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 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, or such information relating to the
registration on the books of the Issuer 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 Issuer may reasonably require by
written request to the Depositary or the
Custodian. The Depositary may, and at the
reasonable written request of the Issuer 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. Upon written request of the
Issuer, the Depositary shall deliver to the
Issuer copies of the documents or instruments
delivered to the Depositary or any of its
agents pursuant to Section 3.1 of the Deposit
Agreement. 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 Australia which is then
performing the function of the regulation of
currency exchange.
7. CHARGES OF DEPOSITARY.
The Issuer agrees to pay the fees,
reasonable expenses and outofpocket charges
of the Depositary and those of any Registrar
only in accordance with agreements in
writing entered into between the Depositary
and the Issuer from time to time. The
Depositary shall present its statement for such
charges and expenses to the Issuer once every
three months. The charges and expenses of
the Custodian are for the sole account of the
Depositary.
The following charges shall be
incurred by any party depositing or
withdrawing Shares or by any party
surrendering Receipts or to whom Receipts
are issued (including, without limitation,
issuance pursuant to a stock dividend or stock
split declared by the Issuer or an exchange of
stock regarding the Receipts or Deposited
Securities or a distribution of Receipts
pursuant to Section 4.3 of the Deposit
Agreement), whichever applicable: (1) taxes
and other governmental charges, (2) such
registration fees as may from time to time be
in effect for the registration of transfers of
Shares generally on the Share register of the
Issuer or Foreign Registrar and applicable to
transfers of Shares to the name of the
Depositary or its nominee or the Custodian or
its nominee on the making of deposits or
withdrawals under the Deposit Agreement,
(3) such cable, telex and facsimile
transmission expenses as are expressly
provided in the Deposit Agreement, (4) such
expenses as are incurred by the Depositary in
the conversion of foreign currency pursuant
to Section 4.5 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 2.3, 4.3 or 4.4, and the surrender of
Receipts pursuant to Section 2.5 or 6.2 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 the Deposit Agreement including,
but not limited to Sections 4.1 through 4.4
thereof, (7) a fee of $1.50 or less per
certificate for a Receipt or Receipts for
transfers made pursuant to Section 2.4 of the
Deposit Agreement, (8) a fee for the
distribution of securities pursuant to Section
4.2 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 (8) treating all such securities as if they
were Shares), but which securities are instead
distributed by the Depositary to Owners and
(9) any other charge payable by the
Depositary, any of the Depositarys agents,
including the Custodian, or the agents of the
Depositarys agents in connection with the
servicing of Shares or other Deposited
Securities (which charge shall be assessed
against Owners of record as of the date or
dates set by the Depositary in accordance
with Section 4.6 of the Deposit Agreement
and shall be collected 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 Issuer and its affiliates and in
Receipts.
8. PRERELEASE OF RECEIPTS.
Notwithstanding Section 2.3 of the
Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the
receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement (PreRelease). The
Depositary may, pursuant to Section 2.5 of
the Deposit Agreement, deliver Shares upon
the receipt and cancellation of Receipts which
have been PreReleased, whether or not such
cancellation is prior to the termination of such
PreRelease or the Depositary knows that such
Receipt has been PreReleased. The
Depositary may receive Receipts in lieu of
Shares in satisfactory of a PreRelease. Each
PreRelease 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,
owns the Shares or Receipts to be remitted, as
the case may be, (b) at all times fully
collateralized with cash or such other
collateral as the Depositary deems
appropriate, (c) terminable by the Depositary
on not more than five (5) business days
notice, and (d) subject to such further
indemnities and credit regulations as the
Depositary deems appropriate. The number
of American Depositary Shares which are
outstanding at any time as a result of
PreReleases will not normally exceed thirty
percent (30%) of the Shares deposited under
the Deposit Agreement provided, however,
that the Depositary reserves the right to
change or disregard such limit from time to
time as it deems appropriate.
Notwithstanding anything contained
herein to the contrary, the Depositary shall
comply with written notice from the Issuer
instructing the Depositary not to PreRelease
Receipts and to terminate any outstanding
PreReleases in accordance with the respective
terms thereof. The Depositary shall thereafter
resume making PreReleases in accordance
with Section 2.9 of the Deposit Agreement
upon written authorization from the Issuer.
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 holder and Owner of this
Receipt by accepting or holding the same
consents and agrees, that title to this Receipt
when properly endorsed or accompanied by
proper instruments of transfer, is transferable
by delivery with the same effect as in the case
of a negotiable instrument, provided,
however, that the Depositary and the Issuer,
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.
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 or facsimile
signature of a duly authorized signatory of the
Depositary and, if a Registrar for the Receipts
shall have been appointed, countersigned by
the manual or facsimile signature of a duly
authorized officer of the Registrar.
11. REPORTS INSPECTION OF
TRANSFER BOOKS.
The Issuer currently furnishes the
Securities and Exchange Commission
(hereinafter called the Commission) with
certain public reports and documents required
by foreign law or otherwise under Rule
12g32(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 Issuer
which are both (a) received by the Depositary
or the Custodian or its Nominee as the holder
of the Deposited Securities and (b) made
generally available to the holders of such
Deposited Securities by the Issuer. The
Depositary will also, upon written request,
send to Owners of Receipts copies of such
reports when furnished by the Issuer pursuant
to the Deposit Agreement.
The Depositary shall keep books 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 Issuer 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
shall distribute (by checks drawn on a bank in
the United States) the amount thus received to
the Owners of Receipts entitled thereto,
provided, however, that in the event that the
Issuer 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 Sections
4.11 and 5.9 of the Deposit Agreement,
whenever the Depositary receives any
distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4 of the
Deposit Agreement, the Depositary will cause
the securities or property received by it to be
distributed to the Owners of Receipts entitled
thereto, 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 (net of
the fees of the Depositary as provided in
Section 5.9 of the Deposit Agreement) shall
be distributed by the Depositary to the
Owners of Receipts entitled thereto as in the
case of a distribution received in cash.
If any distribution consists of a
dividend in, or free distribution of, Shares, the
Depositary may and shall if the Issuer 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 of the Depositary as
provided in Section 5.9 of the Deposit
Agreement. 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
set forth in 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.
The Depositary shall forward to the
Issuer or its agent such information from its
records as the Issuer may reasonably request
to enable the Issuer or its agent to file
necessary reports with governmental
agencies. The Depositary shall use
reasonable efforts to make and maintain
arrangements enabling Owners who are
citizens or residents of the United States to
receive any tax credits or other benefits
(pursuant to treaty or otherwise) relating to
dividend payments on the American
Depositary Shares.
13. CONVERSION OF FOREIGN
CURRENCY.
Whenever the Depositary shall
receive foreign currency, by way of dividends
or other distributions or the net proceeds from
the sale of securities, property or rights, and if
at the time of the receipt thereof the foreign
currency so received can in the judgment of
the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars
transferred to the United States, the
Depositary shall convert or cause to be
converted, by sale or in any other manner that
it may determine, such foreign currency into
Dollars, and such Dollars shall be distributed
to the Owners entitled thereto or, if the
Depositary shall have distributed any
warrants or other instruments which entitle
the holders thereof to such Dollars, then to
the holders of such warrants and/or
instruments 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 5.9 of the
Deposit Agreement.
If such conversion or distribution can
be effected only with the approval or license
of any government or agency thereof, the
Depositary shall file such application for
approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall
determine that in its judgment any foreign
currency received by the Depositary is not
convertible on a reasonable basis into Dollars
transferable to the United States, or if any
approval or license of any government or
agency thereof which is required for such
conversion is denied or in the opinion of the
Depositary is not obtainable, or if any such
approval or license is not obtained within a
reasonable period as determined by the
Depositary, the Depositary may distribute the
foreign currency (or an appropriate document
evidencing the right to receive such foreign
currency) received by the Depositary to, or in
its discretion may hold such foreign currency
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.
14. RIGHTS.
In the event that the Issuer shall offer
or cause to be offered to the holders of any
Deposited Securities any rights to subscribe
for additional Shares or any rights of any
other nature, the Depositary shall 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 in Dollars to such Owners
or, if by the terms of such rights offering or,
for any other reason, the Depositary may not
either make such rights available to any
Owners or dispose of such rights and make
the net proceeds available to such Owners,
then the Depositary shall allow the rights to
lapse. If at the time of the offering of any
rights the Depositary determines in its
discretion that it is lawful and feasible to
make such rights available to all 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.
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 Issuer to the
Depositary that (a) the Issuer has elected in its
sole discretion to permit such rights to be
exercised and (b) such Owner has executed
such documents as the Issuer has determined
in its sole discretion are reasonably required
under applicable law.
If the Depositary has distributed
warrants or other instruments for rights to all
or certain Owners, then upon instruction from
such an Owner pursuant to such warrants or
other instruments to the Depositary from such
Owner to exercise such rights, upon payment
by such Owner to the Depositary for the
account of such Owner of an amount equal to
the purchase price of the Shares to be
received upon the exercise of the rights, and
upon payment of the fees of the Depositary
and any other charges as set forth in such
warrants or other instruments, the Depositary
shall, on behalf of such Owner, exercise the
rights and purchase the Shares, and the Issuer
shall cause the Shares so purchased to be
delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the
Depositary will cause the Shares so purchased
to be deposited pursuant to Section 2.2 of the
Deposit Agreement, and shall, pursuant to
Section 2.3 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, such
Receipts shall be legended in accordance with
applicable U.S. laws, and shall be subject to
the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
If the Depositary determines in its
discretion that it is not lawful and feasible to
make such rights available to all or certain
Owners, it may sell the rights, warrants or
other instruments in proportion to the number
of American Depositary Shares held by the
Owners to whom it has determined it may not
lawfully or feasibly make such rights
available, and allocate the net proceeds of
such sales (net of the fees of the Depositary as
provided in Section 5.9 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 Owners or are registered under
the provisions of such Act. If an Owner of
Receipts requests distribution of warrants or
other instruments, notwithstanding that there
has been no such registration under such Act,
the Depositary shall not effect such
distribution unless it has received an opinion
from recognized counsel in the United States
for the Issuer upon which the Depositary may
rely that such distribution to such Owner is
exempt from such registration. The Issuer
will have no obligation under the Deposit
Agreement to register such rights under the
Securities Act of 1933.
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.
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 for
any reason the Depositary causes a change in
the number of Shares that are represented by
each American Depositary Share, or
whenever the Depositary shall receive notice
of any meeting of holders of Shares or other
Deposited Securities, the Depositary shall
(after consultation with the Issuer to the
extent practicable) fix a record date (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 or (ii) entitled to give
instructions for the exercise of voting rights at
any such meeting, or (b) on or after which
each American Depositary Share will
represent the changed number of Shares,
subject to the provisions of 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
Issuer 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 or as
otherwise provided to the Depositary by the
Issuer or its agent, which shall contain (a)
such information as is contained in such
notice of meeting, 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 Issuers Constitution 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, including an
express indication that instructions may be
given (or be deemed given in accordance with
the paragraph immediately following this
paragraph if no instruction is received) to the
Depositary to give a discretionary proxy to a
person designated by the Issuer. 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 (or to grant a
discretionary proxy to a person designated by
the Issuer to vote) 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.
If the Depositary does not receive
instructions from an Owner on or before the
date established by the Depositary for such
purpose, such Owner shall be deemed, and
the Depositary shall deem such Owner, to
have instructed the Depositary to give a
discretionary proxy to a person designated by
the Issuer to vote the underlying Shares,
provided that no such discretionary proxy
shall be deemed given with respect to any
matter as to which the Issuer informs the
Depositary in writing at the time notice of any
meeting or solicitation of consents or proxies
is received by the Custodian (and the Issuer
agrees to provide such notification) and (i) the
Issuer does not wish such proxy given, (ii)
substantial opposition exists or (iii) the rights
of holders of Shares will be materially and
adversely affected.
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 4.3 of the Deposit Agreement do
not apply, upon any change in nominal value,
change in par value, splitup, consolidation, or
any other reclassification of Deposited
Securities, or upon any recapitalization,
reorganization, merger or consolidation, or
sale of assets affecting the Issuer or to which
it is a party, any securities which shall be
received by the Depositary or a Custodian in
exchange for or in conversion of or in respect
of Deposited Securities shall be treated as
new Deposited Securities under the Deposit
Agreement, and American Depositary Shares
shall thenceforth represent the new Deposited
Securities so received in exchange or
conversion, unless additional Receipts are
delivered pursuant to the following sentence.
In any such case the Depositary may (after
consultation with the Issuer, if practicable),
and shall if the Issuer 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.
18. LIABILITY OF THE ISSUER
AND DEPOSITARY.
Neither the Depositary nor the Issuer
shall incur any liability to any Owner or
holder of any Receipt, if by reason of any
provision of any present or future law of the
United States, Australia or any other country,
or of any other governmental or regulatory
authority or stock exchange or the Nasdaq
National Market, or by reason of any
provision, present or future, of the Issuers
Constitution, or by reason of any provision of
any securities issued or distributed by the
Issuer (or an offering or distribution thereof),
or by reason of any act of God or war or other
circumstances beyond its control, the
Depositary or the Issuer (or any of their
directors, employees, agents or affiliates)
shall be prevented, delayed or forbidden from
or be subject to any civil or criminal penalty
on account of doing or performing any act or
thing which by the terms of the Deposit
Agreement it is provided shall be done or
performed nor shall the Depositary or the
Issuer incur any liability to any Owner or
holder of a Receipt by reason of any
nonperformance or delay, caused as aforesaid,
in the performance of any act or thing which
by the terms of the Deposit Agreement it is
provided shall or may be done or performed,
or by reason of any exercise of, or failure to
exercise, any discretion provided for in the
Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2, or
4.3 of the Deposit Agreement, or an offering
or distribution pursuant to Section 4.4 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 Issuer nor
the Depositary 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 Issuer shall be under
any obligation to appear in, prosecute or
defend any action, suit, or other proceeding in
respect of any Deposited Securities or in
respect of the Receipts, which in its opinion
may involve it (in its sole discretion) in
expense or liability, unless indemnity
satisfactory to it against all expense and
liability shall be furnished as often as may be
required, and the Custodian shall not be under
any obligation whatsoever with respect to
such proceedings, the responsibility of the
Custodian being solely to the Depositary.
Neither the Depositary nor the Issuer 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. 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
Issuer agrees to indemnify the Depositary, its
directors, employees, agents and affiliates and
any Custodian against, and hold each of them
harmless from, any liability or expense
(including, but not limited to, the fees and
expenses of counsel) which may arise out of
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, employees, agents
and affiliates, except for any liability or
expense arising out of the negligence or bad
faith of either of them, or (ii) by the Issuer or
any of its directors, 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 Issuer, such resignation
to take effect upon the appointment of a
successor depositary and its acceptance of
such appointment as provided in the Deposit
Agreement. The Depositary may at any time
be removed by the Issuer by written notice of
such removal, effective upon the appointment
of a successor depositary and its acceptance
of such appointment as provided in the
Deposit Agreement. Whenever the
Depositary in its discretion determines that it
is in the best interest of the Owners 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 Issuer and the
Depositary in any respect which they may
deem necessary or desirable. Any
amendment which shall impose or increase
any fees or charges (other than taxes and
other governmental charges, 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.
21. TERMINATION OF DEPOSIT
AGREEMENT.
The Depositary shall at any time at the
direction of the Issuer terminate the Deposit
Agreement by mailing notice of such
termination to the Owners of all Receipts then
outstanding at least 90 days prior to the date
fixed in such notice for such termination.
The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such
termination to the Issuer and the Owners of
all Receipts then outstanding if at any time 90
days shall have expired after the Depositary
shall have delivered to the Issuer 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 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
2.5 of the Deposit Agreement, and (c)
payment of any applicable taxes or
governmental charges, will 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, 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 as
provided in the Deposit Agreement, and shall
continue to deliver Deposited Securities,
together with any dividends or other
distributions received with respect thereto and
the net proceeds of the sale of any rights or
other property, in exchange for Receipts
surrendered to the Depositary (after
deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any
expenses for the account of the Owner of
such Receipt in accordance with the terms
and conditions of the Deposit Agreement, and
any applicable taxes or governmental
charges). At any time after the expiration of
one year from the date of termination, the
Depositary may sell the Deposited Securities
then held under the Deposit Agreement and
may thereafter hold uninvested the net
proceeds of any such sale, together with any
other cash then held by it 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). Upon the termination of the
Deposit Agreement, the Issuer 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. The obligations of the
Depositary under Section 5.8 of the Deposit
Agreement shall survive termination of the
Deposit Agreement.
22. COMPLIANCE WITH U.S.
SECURITIES LAWS.
Notwithstanding anything in the
Deposit Agreement or this Receipt to the
contrary, the Issuer and the Depositary each
agrees that it will not exercise any rights it
has under the Deposit Agreement to prevent
the withdrawal or delivery of Deposited
Securities in a manner which would violate
the U.S. securities laws, including, but not
limited to, Section I.A.(1) of the General
Instructions to the Form F6 Registration
Statement, as amended from time to time,
under the Securities Act of 1933.
23. DISCLOSURE OF INTERESTS.
The Issuer 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 and various other matters. Each
Owner agrees to provide any information
requested by the Issuer or the Depositary
pursuant to Section 3.4 of the Deposit
Agreement. The Depositary agrees to comply
with reasonable written instructions received
from the Issuer requesting that the Depositary
forward any such requests to the Owners and
to forward to the Issuer 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 Issuer 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 Issuers
instructions in respect of any such
enforcement or limitation.
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