BRAVURA SOLUTIONS LIMITED (ABN 15 111 148 826) AND THE BANK OF NEW YORK MELLON As Depositary AND OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES Deposit Agreement Dated as of December , 2008
Exhibit 99.(a)
BRAVURA SOLUTIONS LIMITED
(ABN 15 111 148 826)
(ABN 15 111 148 826)
AND
THE BANK OF NEW YORK MELLON
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
Dated
as of December , 2008
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS |
1 | |||
SECTION 1.01 American Depositary Shares |
1 | |||
SECTION 1.02 CHESS |
2 | |||
SECTION 1.03 Commission |
2 | |||
SECTION 1.04 Company |
2 | |||
SECTION 1.05 Custodian |
2 | |||
SECTION 1.06 Deliver; Surrender |
2 | |||
SECTION 1.07 Deposit Agreement |
3 | |||
SECTION 1.08 Depositary; Corporate Trust Office |
3 | |||
SECTION 1.09 Deposited Securities |
3 | |||
SECTION 1.10 Dollars |
3 | |||
SECTION 1.11 DTC |
3 | |||
SECTION 1.12 Foreign Xxxxxxxxx |
0 | |||
SECTION 1.13 Holder |
3 | |||
SECTION 1.14 Owner |
3 | |||
SECTION 1.15 Receipts |
4 | |||
SECTION 1.16 Xxxxxxxxx |
0 | |||
SECTION 1.17 Restricted Securities |
4 | |||
SECTION 1.18 Securities Act of 1933 |
4 | |||
SECTION 1.19 Shares |
4 | |||
ARTICLE
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND
SURRENDER OF
AMERICAN DEPOSITARY SHARES |
4 | |||
SECTION 2.01 Form of Receipts; Registration and Transferability of American Depositary Shares |
4 | |||
SECTION 2.02 Deposit of Shares |
5 | |||
SECTION 2.03 Delivery of American Depositary Shares |
6 | |||
SECTION 2.04
Registration of Transfer of American Depositary Shares; Combination
and Split-up of Receipts;
Interchange of Certificated and Uncertificated American Depositary Shares |
7 | |||
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal of Deposited Securities |
8 | |||
SECTION 2.06 Limitations on Delivery, Transfer and Surrender of American Depositary Shares |
9 | |||
SECTION 2.07 Lost Receipts, etc. |
9 | |||
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts |
10 | |||
SECTION 2.09 Pre-Release of American Depositary Shares |
10 | |||
SECTION 2.10 Maintenance of Records |
10 | |||
SECTION 2.11 DTC Direct Registration System and Profile Modification System |
10 | |||
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES |
11 | |||
SECTION 3.01 Filing Proofs, Certificates and Other Information |
11 | |||
SECTION 3.02 Liability of Owner for Taxes |
12 | |||
SECTION 3.03 Warranties on Deposit of Shares |
12 | |||
SECTION 3.04 Disclosure of Interests |
12 | |||
ARTICLE 4. THE DEPOSITED SECURITIES |
12 | |||
SECTION 4.01 Cash Distributions |
12 | |||
SECTION 4.02 Distributions Other Than Cash, Shares or Rights |
13 | |||
SECTION 4.03 Distributions in Shares |
13 | |||
SECTION 4.04 Rights |
14 | |||
SECTION 4.05 Conversion of Foreign Currency |
15 | |||
SECTION 4.06 Fixing of Record Date |
16 |
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SECTION 4.07 Voting of Deposited Securities |
17 | |||
SECTION 4.08 Changes Affecting Deposited Securities |
18 | |||
SECTION 4.09 Reports |
18 | |||
SECTION 4.10 Lists of Owners |
18 | |||
SECTION 4.11 Withholding |
18 | |||
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY |
19 | |||
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary |
19 | |||
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the Company |
19 | |||
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company |
20 | |||
SECTION 5.04 Resignation and Removal of the Depositary |
21 | |||
SECTION 5.05 The Custodians |
22 | |||
SECTION 5.06 Notices and Reports |
22 | |||
SECTION 5.07 Distribution of Additional Shares, Rights, etc. |
23 | |||
SECTION 5.08 Indemnification |
23 | |||
SECTION 5.09 Charges of Depositary |
24 | |||
SECTION 5.10 Retention of Depositary Documents |
25 | |||
SECTION 5.11 Exclusivity |
26 | |||
SECTION 5.12 List of Restricted Securities Owners |
26 | |||
ARTICLE 6. AMENDMENT AND TERMINATION |
26 | |||
SECTION 6.01 Amendment |
26 | |||
SECTION 6.02 Termination |
26 | |||
ARTICLE 7. MISCELLANEOUS |
27 | |||
SECTION 7.01 Counterparts |
27 | |||
SECTION 7.02 No Third Party Beneficiaries |
27 | |||
SECTION 7.03 Severability |
28 | |||
SECTION 7.04 Owners and Holders as Parties; Binding Effect |
28 | |||
SECTION 7.05 Notices |
28 | |||
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service of Process; Jury Trial Waiver |
28 | |||
SECTION 7.07 Waiver of Immunities |
30 | |||
SECTION 7.08 Governing Law |
30 |
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DEPOSIT
AGREEMENT dated as of December , 2008, among BRAVURA SOLUTIONS LIMITED (ABN 15 111 148
826), a company incorporated under the laws of the State of New South Wales, the Commonwealth of
Australia (herein called the Company), THE BANK OF NEW YORK MELLON, a New York banking corporation
(herein called the Depositary), and all Owners and Holders from time to time of American Depositary
Shares 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
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 created under this Deposit
Agreement representing rights with respect to the Deposited Securities. American Depositary Shares
may be certificated securities evidenced by Receipts or uncertificated securities. The form of
Receipt annexed as Exhibit A to this Deposit Agreement shall be the prospectus required under the
Securities Act of 1933 for sales of both certificated and uncertificated American Depositary
Shares. Except for those provisions of this Deposit Agreement that refer specifically to Receipts,
all the provisions of this Deposit Agreement shall apply to both certificated and uncertificated
American Depositary Shares. Each American Depositary Share shall represent the number of Shares
specified in Exhibit A to this Deposit Agreement, 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 American Depositary Shares are not delivered, and thereafter
American Depositary Shares shall represent the amount of Shares or Deposited Securities specified
in such Sections.
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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.
SECTION 1.04 Company.
The term “Company” shall mean Bravura Solutions Limited (ABN 15 111 148 826), a company,
organized under the laws of the State of New South Wales, the Commonwealth of Australia, and its
successors.
SECTION 1.05 Custodian.
The term “Custodian” shall mean the principal Melbourne, Victoria, Australian offices of
Australia and New Zealand Banking Group Ltd and National Australia Bank Ltd and the principal
Sydney, New South Wales, Australian office of HSBC Bank of Australia Limited, as agents 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 Deliver; Surrender.
(a) The term “deliver”, or its noun form, when used with respect to Shares or other Deposited
Securities, shall mean (i) book-entry transfer of those Shares or other Deposited Securities to an
account maintained by CHESS or an institution authorized under applicable law to effect transfers
of such securities designated by the person entitled to that delivery or (ii) physical transfer of
certificates evidencing those Shares or other Deposited Securities registered in the name of, or
duly endorsed or accompanied by proper instruments of transfer to, the person entitled to that
delivery.
(b) The term “deliver”, or its noun form, when used with respect to American Depositary
Shares, shall mean (i) book-entry transfer of American Depositary Shares to an account at DTC
designated by the person entitled to such delivery evidencing American Depositary Shares registered
in the name requested by that person (ii) registration of American Depositary Shares not evidenced
by a Receipt on the books of the Depositary in the name requested by the person entitled to such
delivery and mailing to that person of a statement confirming that registration or (iii) if
requested by the person entitled to such delivery, delivery at the Corporate Trust Office of the
Depositary to the person entitled to such delivery of one or more Receipts.
(c) The term “surrender”, when used with respect to American Depositary Shares, shall mean (i)
one or more book-entry transfers of American Depositary Shares to the DTC account of the
Depositary, (ii) delivery to the Depositary at its Corporate Trust Office of an instruction to
surrender American Depositary Shares not evidenced by a Receipt or (iii)
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surrender to the Depositary at its Corporate Trust Office of one or more Receipts evidencing American
Depositary Shares.
SECTION 1.07 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 1.08 Depositary; Corporate Trust Office.
The term “Depositary” shall mean The Bank of New York Mellon, 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
Deposit 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, including without limitation Shares that have
not been successfully delivered upon surrender of American Depositary Shares, and any and all other
securities, property and cash received by the Depositary or the Custodian in respect thereof and at
such time held under this Deposit Agreement, 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 DTC.
The term “DTC” shall mean The Depository Trust Company or its successor.
SECTION 1.12 Foreign Registrar.
The term “Foreign Registrar” shall mean the entity that presently carries out the duties of
registrar for the Shares or any successor as registrar for the Shares and any other agent of the
Company for the transfer and registration of Shares, including without limitation any securities
depository for the Shares, or, if no such agent is so appointed and acting, the Company.
SECTION 1.13 Holder.
The term “Holder” shall mean any person holding a Receipt or a security entitlement or other
interest in American Depositary Shares, whether for its own account or for the account of another
person, but that is not the Owner of that Receipt or those American Depositary Shares.
SECTION 1.14 Owner.
The term “Owner” shall mean the person in whose name American Depositary Shares are registered
on the books of the Depositary maintained for such purpose.
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SECTION 1.15 Receipts.
The term “Receipts” shall mean the American Depositary Receipts issued hereunder evidencing
certificated American Depositary Shares, as the same may be amended from time to time in accordance
with the provisions hereof.
SECTION 1.16 Registrar.
The term “Registrar” shall mean any bank or trust company having an office in the Borough of
Manhattan, The City of New York, that is appointed by the Depositary to register American
Depositary Shares and transfers of American Depositary Shares as herein provided.
SECTION 1.17 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 that are subject to resale limitations under Regulation D under the
Securities Act of 1933 or both, or which are held by an officer, director (or persons performing
similar functions) or other affiliate of the Company, or that would require registration under the
Securities Act of 1933 in connection with the offer and sale thereof in the United States, or that
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 articles of association or similar document of
the Company.
SECTION 1.18 Securities Act of 1933.
The term “Securities Act of 1933” shall mean the United States Securities Act of 1933, as from
time to time amended.
SECTION 1.19 Shares.
The term “Shares” shall mean ordinary shares of the Company, that are validly issued and
outstanding and fully paid, nonassessable and that were not issued in violation of any pre-emptive
or similar rights of the holders of outstanding securities of the Company; provided,
however, that, if there shall occur any change in nominal value, a split-up or
consolidation or any other reclassification or, upon the occurrence of an event described in
Section 4.08, an exchange or conversion in respect of the Shares of the Company, the term “Shares”
shall thereafter also mean the successor securities resulting from such change in nominal value,
split-up or consolidation or such other reclassification or such exchange or conversion.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES,
DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES
FORM OF RECEIPTS, DEPOSIT OF SHARES,
DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES
SECTION 2.01 Form of Receipts; Registration and Transferability of American Depositary Shares.
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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 (i) executed by the Depositary by
the manual signature of a duly authorized officer of the Depositary or (ii) executed by the
facsimile signature of a duly authorized officer of the Depositary and countersigned by the manual
signature of a duly authorized signatory of the Depositary or a Registrar. The Depositary shall
maintain books on which (x) each Receipt so executed and delivered as hereinafter provided and the
transfer of each such Receipt shall be registered and (y) all American Depositary Shares delivered
as hereinafter provided and all registrations of transfer of American Depositary Shares shall be
registered. A Receipt bearing the facsimile signature of a person that was at any time a proper
officer of the Depositary shall, subject to the other provisions of this paragraph, bind the
Depositary, notwithstanding that such person ceased to hold such office prior to the
countersignature of that Receipt by a duly authorized signatory of the Depositary or the Registrar
or such person was not a proper officer of the Depositary on the date of issuance of that Receipt.
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 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.
American Depositary Shares evidenced by a Receipt, when properly endorsed or accompanied by
proper instruments of transfer, shall be transferable as certificated registered securities under
the laws of New York. American Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Depositary and the Company,
notwithstanding any notice to the contrary, may treat the Owner of American Depositary Shares 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 to any Custodian hereunder, accompanied by any
appropriate instruments or instructions for transfer, or endorsement, in form 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
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to deliver to, or upon the written order of, the person or persons stated in such order, 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, documents of title thereto or evidence that irrevocable instruments have been given
to cause the transfer of Shares to the account of the 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 articles of
association or similar document 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, together with the other
documents and payments specified above, if any, such Custodian shall, as soon as transfer and
recordation can be accomplished, present such documents of title or other instruments evidencing
title as may be required under the Company’s articles of association or similar document or
applicable law or regulation to the Company or the Foreign Registrar, if applicable, for transfer
and recordation of the Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for the account and to
the order of the Depositary or at such other place or places as the Depositary shall determine.
SECTION 2.03 Delivery of American Depositary Shares .
Upon receipt by any Custodian of any deposit pursuant to Section 2.02 hereunder, 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 American Depositary Shares
are deliverable in respect thereof and the number of American Depositary Shares to be so delivered.
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 (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, if applicable, in the name of the Depositary or its nominee or such
Custodian or its nominee). Upon receiving such notice from such Custodian, or upon the receipt of
Shares or evidence of the right to receive Shares by the Depositary, the Depositary, subject to the
terms and conditions of this Deposit Agreement, shall deliver, to or upon the order of the person
or persons entitled thereto, the number of American Depositary Shares issuable in respect of that
deposit, but only upon payment to the Depositary of the fees and expenses of the Depositary for the
delivery of such American Depositary Shares 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 Registration of Transfer of American Depositary Shares; Combination and Split-up
of Receipts; Interchange of
Certificated
and Uncertificated American Depositary Shares.
The Depositary, subject to the terms and conditions of this Deposit Agreement, shall register
transfers of American Depositary Shares on its transfer books from time to time, upon (i) in the
case of certificated American Depositary Shares, surrender of the Receipt evidencing those American
Depositary Shares, by the Owner in person or by a duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer or (ii) in the case of uncertificated American
Depositary Shares, receipt from the Owner of a proper instruction (including, for the avoidance of
doubt, instructions through DRS and Profile as provided in Section 2.10), and, in either case, 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 deliver those American Depositary Shares to or upon the
order of the person entitled thereto subject to receipt of any certifications and agreements by
such person as the Depositary or the Company, as instructed to the Depositary, 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, upon surrender of a Receipt for the purpose of exchanging for uncertificated
American Depositary Shares, shall cancel that Receipt and send the Owner a statement confirming
that the Owner is the owner of the same number of uncertificated American Depositary Shares that
the surrendered Receipt evidenced. The Depositary, upon receipt of a proper instruction (including,
for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10) from
the Owner of uncertificated American Depositary Shares for the purpose of exchanging for
certificated American Depositary Shares, shall execute and deliver to the Owner a Receipt
evidencing the same number of certificated American Depositary Shares.
The Depositary, with the approval of the Company, which approval shall not be unreasonably
withheld, may appoint one or more co-transfer agents for the purpose of effecting registration of
transfers of American Depositary Shares and combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. Each co-transfer agent
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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 American Depositary Shares and will be entitled to
protection and indemnity to the same extent as the Depositary.
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal of Deposited Securities.
Upon surrender at the Corporate Trust Office of the Depositary of American Depositary Shares
for the purpose of withdrawal of the Deposited Securities represented thereby, and upon payment of
the fee of the Depositary for the surrender of American Depositary Shares 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 those American Depositary Shares shall be entitled to delivery, to him, her
or it or as instructed, of the amount of Deposited Securities at the time represented by those
American Depositary Shares. 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. The Depositary may
require the surrendering Owner to execute and deliver to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the Depositary shall
direct the Custodian to deliver 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 surrendered American Depositary Shares, 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 those American Depositary Shares, 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 American Depositary Shares, and
for the account of such Owner, the Depositary shall direct the Custodian to forward any cash or
other property (other than rights) comprising, and forward a certificate or certificates, if
applicable, and other proper documents of title for, the Deposited Securities represented by the
American Depositary Shares (evidenced by such Receipt, if applicable) to the Depositary for
delivery at the Corporate Trust Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Owner, by cable, telex or
facsimile transmission.
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SECTION 2.06 Limitations on Delivery, Transfer and Surrender of American Depositary Shares.
As a condition precedent to the delivery, registration of transfer, or surrender of any
American Depositary Shares or split-up or combination of any Receipt or withdrawal of any Deposited
Securities, the Depositary, Custodian or Registrar may require payment from the depositor of Shares
or the presenter of the Receipt or instruction for registration of transfer or surrender of
American Depositary Shares not evidenced by a 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.
The delivery of American Depositary Shares against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of American Depositary Shares in
particular instances may be refused, or the registration of transfer of outstanding American
Depositary Shares 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 the following sentence. Notwithstanding anything to the
contrary in this Deposit Agreement, the surrender of outstanding American Depositary Shares 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 Foreign Registrar, if
applicable, 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 American Depositary
Shares 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 which
would be required to be registered under the provisions of the Securities Act of 1933 for public
offer and sale in the United States, unless a registration statement is in effect as to such Shares
for such offer and sale.
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
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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.
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 American Depositary Shares.
Notwithstanding Section 2.03 hereof, the Depositary may deliver American Depositary Shares
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 surrender of American Depositary Shares that have
been Pre-Released, whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such American Depositary Shares have been Pre-Released. The
Depositary may receive American Depositary Shares 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 American Depositary Shares or Shares are to be delivered, that such person, or
its customer, owns the Shares or American Depositary Shares 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 Shares represented by American Depositary Shares which are outstanding at any time
as a result of Pre-Release 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.
SECTION 2.11 DTC Direct Registration System and Profile Modification System
(a) Notwithstanding the provisions of Section 2.04, the parties acknowledge that the Direct
Registration System (“DRS”) and Profile Modification System (“Profile”) shall apply to
uncertificated American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is
the system administered by DTC pursuant to which the Depositary may register the ownership of
uncertificated American Depositary Shares, which ownership shall be evidenced by periodic
statements issued by the Depositary to the Owners entitled thereto. Profile is a required feature
of DRS which allows a DTC participant, claiming to act on behalf of an Owner of American
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Depositary
Shares, to direct the Depositary to register a transfer of those American Depositary Shares to DTC
or its nominee and to deliver those American Depositary Shares to the DTC account of that DTC
participant without receipt by the Depositary of prior authorization from the Owner to register
such transfer.
(b) In connection with and in accordance with the arrangements and procedures relating to
DRS/Profile, the parties understand that the Depositary will not verify, determine or otherwise
ascertain that the DTC participant which is claiming to be acting on behalf of an Owner in
requesting a registration of transfer and delivery as described in subsection (a) has the actual
authority to act on behalf of the Owner (notwithstanding any requirements under the Uniform
Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03 and 5.08 shall apply
to the matters arising from the use of the DRS. The parties agree that the Depositary’s reliance
on and compliance with instructions received by the Depositary through the DRS/Profile System and
in accordance with this Deposit Agreement shall not constitute negligence or bad faith on the part
of the Depositary.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Holder 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 American Depositary Shares 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 3.01. Each Owner and Holder agrees to
provide any information requested by the Company or the Depositary pursuant to this Section 3.01.
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SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the Custodian or the
Depositary with respect to any American Depositary Shares or any Deposited Securities represented
by any American Depositary Shares, such tax or other governmental charge shall be payable by the
Owner of such American Depositary Shares to the Depositary. The Depositary may, and upon receipt of
instructions from the Company shall, refuse to register any transfer of those American Depositary
Shares or any withdrawal of Deposited Securities represented by those American Depositary Shares
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 those
American Depositary Shares, 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 American
Depositary Shares 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 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 deposit of such Shares and the sale of 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 delivery
of American Depositary Shares.
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 American Depositary Shares and regarding the identity of any other
persons then or previously interested in such American Depositary Shares 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 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
THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
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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) 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 or other governmental charges, the amount
distributed to the Owner of the 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.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the Depositary shall receive any
distribution other than a distribution described in Section 4.01, 4.03 or 4.04, the Depositary
shall cause the securities or property received by it to be distributed to the Owners entitled
thereto, 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 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. The Depositary may sell, by public or private sale, an amount of
securities or other property it would otherwise distribute under this Section 4.02 that is
sufficient to pay it fees and expenses in respect of that distribution.
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
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Company shall so request, deliver to the Owners entitled thereto, in proportion to the number of
American Depositary Shares representing such Deposited Securities held by them respectively, 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 after deduction or upon issuance of American Depositary
Shares, 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 (and
the Depositary may sell, by public or private sale, an amount of the Shares received sufficient to
pay its fees and expenses in respect of that distribution). The Depositary may withhold any such
delivery of American Depositary Shares if it has not received satisfactory assurances from the
Company that such distribution does not require registration under the Securities Act of 1933. In
lieu of delivering 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
American Depositary Shares are not so delivered, 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, to the extent practicable, 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 determines in its discretion that it is lawful and
feasible to make such rights available to all or certain Owners but not to other Owners, the
Depositary may distribute to any Owner to whom it determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or
other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner requests the
distribution of warrants or other instruments in order to exercise the rights allocable to the
American Depositary Shares of such Owner 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
- 14 -
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, deliver American Depositary Shares to such Owner. In the case of a distribution
pursuant to the second paragraph of this Section, such deposit shall be made, and Deposited
Securities shall be delivered, under depositary arrangements which provide for issuance of
Deposited Securities 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 American Depositary Shares 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 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
United States counsel 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
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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 American
Depositary Shares 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.
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 reasonably necessary, 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
or charge 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
- 16 -
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, (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 articles of
association or similar document 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
including an express indication that instructions may be given (or be 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 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 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 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 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 exits 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 cut-off date to
ensure that the Depositary will vote the Shares or Deposited Securities in accordance with the
provisions set forth in the preceding paragraph.
In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise
of voting rights relating to Deposited Securities, if the Company will request the
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Depositary to
act under this Section 4.07, the Company shall give the Depositary notice of any such meeting and
details concerning the matters to be voted upon not less than 30 days prior to the meeting date.
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, 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
reasonably 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 as soon as practicable after receipt of
such notice from the Company, 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 by the Company, send to the Owners copies of such
reports furnished by the Company pursuant to Section 5.06.
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 American Depositary Shares are registered on the
books of the Depositary.
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
- 18 -
to pay 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. The Depositary shall 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.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
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
American Depositary Shares and transfers of American Depositary Shares 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 American Depositary
Shares.
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.
If any American Depositary Shares are listed on one or more stock exchanges or automated
quotation systems in the United States, the Depositary shall act as Registrar or appoint a
Registrar or one or more co-registrars for registry of such American Depositary Shares in
accordance with any requirements of such exchange or exchanges or systems.
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 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 (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
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automated
quotation system, or by reason of any provision, present or future, of the articles of association
or similar document 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 this Deposit Agreement or the 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 Section 4.01, 4.02, or 4.03, or an offering or distribution pursuant to
Section 4.04, 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 any Owner or
Holder, 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
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
American Depositary Shares on behalf of any Owner or Holder or any other 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.
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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 liable for the acts or omissions made by any securities
depository, clearing agency or settlement system in the Commonwealth of Australia in connection
with or arising out of book-entry settlement of Deposited Securities or otherwise.
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 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.
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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. The Depositary in its discretion 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 as are requested
of it to any other Custodian or such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith upon its appointment,
an acceptance of such appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each Custodian then acting
hereunder shall forthwith become, without any further act or writing, the agent hereunder of such
successor depositary and the appointment of such successor depositary shall in no way impair the
authority of each Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to such Custodian all
such instruments as may be proper to give to such Custodian full and complete power and authority
as agent hereunder of such successor depositary.
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 rights, the Company agrees to transmit to the 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 to which the Company may be subject. The Company will timely provide the
Depositary with the quantity of such notices,
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reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such mailings.
The Company represents that as of the date of this Deposit Agreement and as amended from time
to time, the statements in Article 11 of the Receipt with respect to the exemption from
registration under Rule 12g3-2(b) are true and correct. The Company agrees to promptly notify the
Depositary and all Owners in the event of any change in the truth of any such statements.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
If the Company or any affiliate of the Company determines to make 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 shall notify the Depositary in writing in English as promptly as practicable and in any
event before the Distribution starts and, if requested in writing by the Depositary, the Company
shall promptly furnish to the Depositary a written opinion from U.S. counsel for the Company that
is reasonably satisfactory to the Depositary, stating whether or not the Distribution requires, or,
if made in the United States, would require, registration under the Securities Act of 1933. If, in
the opinion of that counsel, the Distribution requires, or, if made in the United States, would
require, registration under the Securities Act of 1933, that counsel shall furnish to the
Depositary a written opinion as to whether or not there is a registration statement under the
Securities Act of 1933 in effect that will cover that 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.
In the event of any issuance of additional securities, the Company shall have no obligation to
register such additional securities under the Securities Act of 1933 and, to the extent the Company
in its discretion deems it necessary or advisable in order to avoid any requirement to register
such additional securities under the Securities Act of 1933, may prevent Owners in the United
States from purchasing any such additional securities (whether pursuant to preemptive rights or
otherwise) and direct the Depositary not to accept any Shares for deposit for such period of time
following the issuance of such additional securities and to adopt such other specific measures as
the Company may reasonably request in writing.
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
(i) a Registration Statement is in effect as to such Shares under the Securities Act of 1933 or
(ii) such deposit, and the issuance of Shares in respect thereof, is exempt from registration under
the Securities Act of 1933 as confirmed in an opinion of United States counsel, satisfactory to the
Depositary, to that effect.
SECTION 5.08 Indemnification.
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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 any fees and expenses incurred in seeking, enforcing or collecting
such indemnity and the reasonable fees and expenses of counsel) which may arise out of or in
connection with (a) any registration with the Commission of American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or (b) acts performed or omitted,
pursuant to the provisions of or in connection with 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
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.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees and out-of-pocket expenses of the Depositary and those of
any Registrar in accordance with agreements in writing entered into between the Depositary and the
Company from time to time.
The following charges shall be incurred by any party depositing or withdrawing Shares or by
any party surrendering American Depositary Shares or to whom American Depositary Shares 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 American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant
- 24 -
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 delivery of American Depositary Shares pursuant to Section
2.03, 4.03 or 4.04 and the surrender of American Depositary Shares 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 this 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) in addition to any fee
charged under clause 6, 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 and (9) any other charges 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 American Depositary Shares.
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 or global
depositary shares or receipts so long as The Bank of New York Mellon is acting as Depositary
hereunder, subject to the Company’s rights under Section 5.04 of this Deposit Agreement.
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
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 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 American Depositary Shares until the expiration of
thirty days after notice of such amendment shall have been given to the Owners of outstanding
American Depositary Shares. Every Owner and Holder, at the time any amendment so becomes effective,
shall be deemed, by continuing to hold such American Depositary Shares or any interest therein, 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 to surrender American Depositary Shares
and receive therefor the Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law.
SECTION 6.02 Termination.
The Company may at any time terminate this Deposit Agreement by instructing the Depositary to
mail a notice of termination to the Owners of all American Depositary Shares then outstanding at
least 30 days prior to the termination date included in such notice. The Depositary may likewise
terminate this Deposit Agreement if at any time 60 days shall have expired after the Depositary
delivered to the Company a written resignation notice and if a successor depositary shall not have
been appointed and accepted its appointment as provided in Section 5.04; in such case the
Depositary shall mail a notice of termination to the Owners of all American Depositary Shares then
outstanding at least 30 days prior to the termination date. On and after the date of termination,
the Owner of American Depositary Shares will, upon (a) surrender of such American Depositary
Shares, (b) payment of the fee of the Depositary for the
- 26 -
surrender of American Depositary Shares
referred to in Section 2.05, and (c) payment of any applicable taxes or governmental charges, be
entitled to delivery, to him, her or it or upon his, her or its order, of the amount of Deposited
Securities represented by those American Depositary Shares. If any American Depositary Shares
shall remain outstanding after the date of termination, the Depositary thereafter shall discontinue
the registration of transfers of American Depositary Shares, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, upon surrender of American Depositary Shares (after
deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares,
any expenses for the account of the Owner of such American Depositary Shares 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 one year 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 American Depositary
Shares that 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 American Depositary Shares, any expenses for the account of the Owner of such American
Depositary Shares 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. 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.
ARTICLE 7.
MISCELLANEOUS
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 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 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 of American
Depositary Shares or any interest therein.
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 Xxxxx 0, 000 Xxxxxx Xxxxxx, Xxxxxx, Xxx Xxxxx Xxxxx 0000, Xxxxxxxxx, Attention: Chief
Financial Officer or any other place to which the Company may have transferred its principal office
with notice to the Depositary.
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 Mellon, 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 with notice to the Company.
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
American Depositary Shares 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 effective 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; Jury
Trial Waiver.
The Company hereby (i) irrevocably designates and appoints The Bank of New York Mellon, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the State of New York, as the Company’s authorized
agent upon which process may be served in any suit or proceeding arising
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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, 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.
EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND
HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE
DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED
SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT
LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER THEORY).
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SECTION 7.07 Waiver of Immunities.
To the extent that the Company or any of its properties, assets or revenues may have or may
hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief
in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment in aid of execution
or judgment, or from execution of judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at
any time be commenced, with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
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 the Commonwealth of Australia.
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IN WITNESS WHEREOF, BRAVURA SOLUTIONS LIMITED and THE BANK OF NEW YORK MELLON have duly
executed this Deposit Agreement as of the day and year first set forth above and all Owners and
Holders shall become parties hereto upon acceptance by them of American Depositary Shares or any
interest therein.
BRAVURA SOLUTIONS LIMITED, |
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By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
THE BANK OF NEW YORK MELLON, as Depositary |
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By: | ||||
Name: | ||||
Title: | ||||
- 31 -
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents
Twenty (20) deposited Shares)
(Each American Depositary Share represents
Twenty (20) deposited Shares)
THE BANK OF NEW YORK MELLON
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
WITHOUT PAR VALUE OF
BRAVURA SOLUTIONS LIMITED (ABN 15 111 148 826)
(INCORPORATED UNDER THE LAWS OF
THE STATE OF NEW SOUTH WALES, THE COMMONWEALTH OF AUSTRALIA)
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
WITHOUT PAR VALUE OF
BRAVURA SOLUTIONS LIMITED (ABN 15 111 148 826)
(INCORPORATED UNDER THE LAWS OF
THE STATE OF NEW SOUTH WALES, THE COMMONWEALTH OF AUSTRALIA)
The Bank of New York Mellon, 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 Bravura Solutions Limited,
incorporated under the laws of the State of New South Wales, the Commonwealth of Australia (herein
called the “Company”). At the date hereof, each American Depositary Share represents twenty (20)
Shares deposited or subject to deposit under the Deposit Agreement (as such term is hereinafter
defined) at the principal Melbourne, Victoria, Australian offices of Australia and New Zealand
Banking Group Ltd and National Australia Bank Ltd and the principal Sydney, New South Wales,
Australian office of HSBC Bank of Australia Limited (each 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
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
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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 December ,
2008 (herein called the “Deposit Agreement”), by and among the Company, the Depositary, and all
Owners and Holders from time to time of American Depositary Shares issued thereunder, each of whom
by accepting American Depositary Shares 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 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 and
the terms “deliver” and “surrender” 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 of those American Depositary Shares is entitled to
delivery, to him, her or it or as instructed, of the amount of Deposited Securities at the time
represented by those American Depositary Shares for which this Receipt is issued. 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.
Transfers of American Depositary Shares shall, subject to the terms and conditions of the
Deposit Agreement be registered on the books of the Depositary upon (i) in the case of certificated
American Depositary Shares, surrender of the Receipt evidencing those American Depositary Shares,
by the Owner in person or by a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer or (ii) in the case of uncertificated American Depositary Shares, receipt
from the Owner of a proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile as provided in Section 2.10 of the Deposit Agreement), and, in either case, duly
stamped as may be required by the laws of the State of New York and of the United States of America
and upon payment of funds for 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,
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evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered. The
Depositary, upon surrender of a Receipt for the purpose of exchanging for uncertificated American
Depositary Shares, shall cancel that Receipt and send the Owner a statement confirming that the
Owner is the Owner of the same number of uncertificated American Depositary Shares that the
surrendered Receipt evidenced. The Depositary, upon receipt of a proper instruction (including,
for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10 of the
Deposit Agreement) from the Owner of uncertificated American Depositary Shares for the purpose of
exchanging for certificated American Depositary Shares, shall execute and deliver to the Owner a
Receipt evidencing the same number of certificated American Depositary Shares. As a condition
precedent to the delivery, registration of transfer, or surrender of any American Depositary Shares
or split-up or combination of any Receipt or withdrawal of any Deposited Securities, the
Depositary, the Custodian, or Registrar may require payment from the depositor of the Shares or the
presenter of the Receipt or instruction for registration of transfer or surrender of American
Depositary Shares not evidenced by a 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 the Deposit Agreement, 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.
The delivery of American Depositary Shares against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of American Depositary Shares in
particular instances may be refused, or the registration of transfer of outstanding American
Depositary Shares 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 the following sentence.
Notwithstanding anything to the contrary in the Deposit Agreement or this Receipt, the surrender of
outstanding American Depositary Shares 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 Foreign Registrar, if applicable, 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 American Depositary Shares 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 which would be required to be registered under the provisions of
the Securities Act of 1933 for public offer and
sale in the United States, unless a registration statement is in effect as to such Shares for
such offer and sale.
3
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect to any American
Depositary Shares or any Deposited Securities represented by any American Depositary Shares, such
tax or other governmental charge shall be payable by the Owner to the Depositary. The Depositary
may, and upon receipt of instructions from the Company shall, refuse to register any transfer of
those American Depositary Shares or any withdrawal of Deposited Securities represented by those
American Depositary Shares until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner any part or all of the Deposited Securities
represented by those American Depositary Shares, 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 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 therefor, 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 the deposit of such Shares and the sale of 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 delivery
of American Depositary Shares.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Holder 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 American Depositary Shares 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 Company, the Depositary shall
deliver to the Company copies of the documents or instruments delivered to the Depositary or any of
its agents pursuant to Section 3.01 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 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
4
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 Section 3.01 of the Deposit Agreement.
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 following charges shall be incurred by any party depositing or withdrawing Shares or by
any party surrendering American Depositary Shares or to whom American Depositary Shares 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 American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares 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 delivery of American Depositary Shares pursuant to Section
2.03, 4.03 or 4.04 of the Deposit Agreement and the surrender of American Depositary Shares
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 the Deposit
Agreement, including, but not limited 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) in addition to any fee charged under
clause 6, 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 and (9) any other charges 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 American Depositary Shares.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may deliver American
Depositary Shares prior to the receipt of Shares pursuant to Section 2.02 of the
5
Deposit Agreement
(a “Pre-Release”). The Depositary may, pursuant to Section 2.05 of the Deposit Agreement, deliver
Shares upon the surrender of American Depositary Shares that have been Pre-Released, whether or not
such cancellation is prior to the termination of such Pre-Release or the Depositary knows that such
American Depositary Shares have been Pre-Released. The Depositary may receive American Depositary
Shares 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 American Depositary Shares or
Shares are to be delivered, that such person, or its customer, owns the Shares or American
Depositary Shares 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 Shares represented by
American Depositary Shares which are outstanding at any time as a result of Pre-Release 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.
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 when properly endorsed or accompanied by
proper instruments of transfer, shall be transferable as certificated registered securities under
the laws of New York. American Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Company and the Depositary,
notwithstanding any notice to the contrary, may treat the Owner of American Depositary Shares 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 the 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 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 publishes information in English required to maintain the exemption from
registration under Rule 12g3-2(b) under the Securities Exchange Act of 1934 on
6
its Internet web
site at xxx.xxxxxxxxxxxxxxxx.xxx.xx and through the electronic information delivery system
of the Australian Securities Exchange maintained on its Internet website at xxx.xxx.xxx.xx.
The Depositary will make available for inspection by Owners at its Corporate Trust Office any
reports, notices and other 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 by the Company, send to Owners 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
American Depositary Shares and transfers of American Depositary Shares 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 the Deposit Agreement or the American Depositary
Shares.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash distribution on any Deposited
Securities, the Depositary will, 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 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 or other governmental charges, the amount distributed to
the Owners of the American Depositary Shares representing such Deposited Securities shall be
reduced accordingly.
Subject to the provisions of Section 4.11 and 5.09 of the Deposit Agreement, whenever the
Depositary receives any distribution other than a distribution described in Section 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
7
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 Article 7 hereof and
Section 5.09 of the Deposit Agreement) will 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. The Depositary may sell, by public or private sale, an amount of
securities or other property it would otherwise distribute under this Article that is sufficient to
pay its fees and expenses in respect of that distribution.
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, deliver to the
Owners entitled thereto, 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 after deduction or upon issuance of
American Depositary Shares, 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 (and the
Depositary may sell, by public or private sale, an amount of Shares received sufficient to pay its
fees and expenses in respect of that distribution). 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 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 4.01of the Deposit Agreement. If additional American
Depositary Shares are not so delivered, 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 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.
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, after consultation with the Company, to the extent practicable, shall have
discretion as to the procedure to be followed in making such rights available to any Owners or in
8
disposing of such rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the Depositary may not
either make such rights available to any Owners or dispose of such rights and make the net proceeds
available to such Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all or certain Owners but not to other Owners, the
Depositary may distribute to any Owner to whom it determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary Shares held by such Owner, warrants or
other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an Owner requests the
distribution of warrants or other instruments in order to exercise the rights allocable to the
American Depositary Shares of such Owner under the Deposit Agreement, the Depositary will make such
rights available to such Owner upon written notice from the 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, deliver American Depositary Shares to such Owner. In the case of a distribution
pursuant to the second paragraph of this Article 13, such deposit shall be made, and Deposited
Securities shall be delivered, under depositary arrangements which provide for issuance of
Deposited Securities subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and feasible to make such
rights available to all or certain Owners, it may sell the rights, warrants or other instruments in
proportion to the number of American Depositary Shares held by the Owners to whom it has determined
it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such
sales (net of the fees and expenses of the Depositary 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 American Depositary Shares or
otherwise.
9
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 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
United States counsel 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 American
Depositary Shares 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 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
10
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.
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 reasonably necessary, 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 or charge 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 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, (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 articles of
association or similar document 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
including an express indication that instructions may be given (or be 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 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 in accordance with the instructions set forth in such request. The
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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 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 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 exits 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 cut-off date to
ensure that the Depositary will vote the Shares or Deposited Securities in accordance with the
provisions set forth in the preceding paragraph.
In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise
of voting rights relating to Deposited Securities, if the Company will request the Depositary to
act under this Article, the Company shall give the Depositary notice of any such meeting and
details concerning the matters to be voted upon not less than 30 days prior to the meeting date.
17. 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, 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 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, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the Company shall so
reasonably 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 Article 17 and Section 4.08 of the Deposit Agreement in respect of
Deposited Securities, the Company shall notify the Depositary in writing of such occurrence and as
soon as practicable after receipt of such notice from the Company, may instruct the
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Depositary to
give notice thereof, at the Company’s expense, to Owners in accordance with Section 5.06 of 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, (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, or by reason of any provision, present or future, of the articles of association
or similar document 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 the Deposited Securities
it is provided shall be done 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 Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to
Section 4.04 of the Deposit Agreement, 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
or affiliates) assume any obligation or shall be subject to any liability under the Deposit
Agreement to Owners or Holders, 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 American
Depositary Shares, on behalf of any Owner or Holder or any other 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 Holder, 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
13
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 Depositary shall not be liable for the acts or omissions
made by any securities depository, clearing agency or settlement system in the Commonwealth of
Australia in connection with or arising out of book-entry settlement of Deposited Securities or
otherwise. 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 any fees and expenses incurred in seeking, enforcing or
collecting such indemnity and the reasonable fees and expenses of counsel) which may arise out of
or in connection with (a) any registration with the Commission of American Depositary Shares or
Deposited Securities or the offer or sale thereof in the United States or (b) acts performed or
omitted, pursuant to the provisions of or in connection with 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
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; APPOINTMENT OF SUCCESSOR CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit Agreement by written
notice of its election so to do delivered to the 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. The Depositary in its
discretion 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 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
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American Depositary Shares
until the expiration of thirty days after notice of such amendment shall have been given to the
Owners of outstanding American Depositary Shares. Every Owner and Holder of American Depositary
Shares, at the time any amendment so becomes effective, shall be deemed, by continuing to hold such
American Depositary Shares or any interest therein, 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 to surrender American Depositary Shares 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 Company may terminate the Deposit Agreement by instructing the Depositary to mail notice
of termination to the Owners of all American Depositary Shares then outstanding at least 30 days
prior to the termination date included in such notice. The Depositary may likewise terminate the
Deposit Agreement, if at any time 60 days shall have expired after the Depositary delivered to the
Company a written resignation notice and if a successor depositary shall not have been appointed
and accepted its appointment as provided in the Deposit Agreement; in such case the Depositary
shall mail a notice of termination to the Owners of all American Depositary Shares then outstanding
at least 30 days prior to the termination date. On and after the date of termination, the Owner of
American Depositary Shares will, upon (a) surrender of such American Depositary Shares, (b) payment
of the fee of the Depositary for the surrender of American Depositary Shares referred to in Section
2.05, and (c) payment of any applicable taxes or governmental charges, be entitled to delivery, to
him, her or it or upon his, her or its order, of the amount of Deposited Securities represented by
those American Depositary Shares. If any American Depositary Shares shall remain outstanding after
the date of termination, the Depositary thereafter shall discontinue the registration of transfers
of American Depositary Shares, shall suspend the distribution of dividends to the Owners thereof,
shall not accept deposits of Shares, 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, upon surrender of American Depositary Shares (after
deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares,
any expenses for the account of the Owner of such American Depositary Shares 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 American
Depositary Shares that 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 American Depositary Shares, any expenses for the
account of the Owner of such American Depositary Shares in accordance with
15
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.
22. DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION SYSTEM
(a) Notwithstanding anything contrary in the Deposit Agreement, the parties acknowledge that
the Direct Registration System (“DRS”) and Profile Modification System (“Profile”) shall apply to
uncertificated American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the system
administered by DTC pursuant to which the Depositary may register the ownership of uncertificated
American Depositary Shares, which ownership shall be evidenced by periodic statements issued by the
Depositary to the Owners entitled thereto. Profile is a required feature of DRS which allows a DTC
participant, claiming to act on behalf of an Owner of American Depositary Shares, to direct the
Depositary to register a transfer of those American Depositary Shares to DTC or its nominee and to
deliver those American Depositary Shares to the DTC account of that DTC participant without receipt
by the Depositary of prior authorization from the Owner to register such transfer.
(b) In connection with and in accordance with the arrangements and procedures relating to
DRS/Profile, the parties understand that the Depositary will not verify, determine or otherwise
ascertain that the DTC participant which is claiming to be acting on behalf of an Owner in
requesting a registration of transfer and delivery as described in subsection (a) has the actual
authority to act on behalf of the Owner (notwithstanding any requirements under the Uniform
Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03 and 5.08 of the
Deposit Agreement shall apply to the matters arising from the use of the DRS. The parties agree
that the Depositary’s reliance on and compliance with instructions received by the Depositary
through the DRS/Profile System and in accordance with the Deposit Agreement shall not constitute
negligence or bad faith on the part of the Depositary.
23. SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed The Bank of New York Mellon, 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 in the State of New York, 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.
EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND HOLDER)
HEREBY IRREVOCABLY
16
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE
AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION
REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
To the extent that the Company or any of its properties, assets or revenues may have or
hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of
sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief
in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment in aid of execution
or judgment, or other legal process or proceeding for the giving of any relief or for the
enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary Shares, the Receipts or
the Deposit Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such
relief and enforcement.
24. 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 American Depositary Shares and regarding the identity of any other
persons then or previously interested in such American Depositary Shares and the nature of such
interest. Each 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.
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