Exhibit 1
EXECUTION COPY
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STARPHARMA HOLDINGS LTD.
(ACN 078 532 180)
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of _____________________, 2004
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS ................................................ 1
SECTION 1.01 AMERICAN DEPOSITARY SHARES ................................. 1
SECTION 1.02 BENEFICIAL OWNER ........................................... 1
SECTION 1.03 COMMISSION ................................................. 1
SECTION 1.04 CUSTODIAN .................................................. 2
SECTION 1.05 DEPOSIT, DELIVER, EXECUTE, ISSUE, REGISTER,
SURRENDER, TRANSFER, WITHDRAW OR CANCEL .................... 2
SECTION 1.06 DEPOSIT AGREEMENT .......................................... 2
SECTION 1.07 DEPOSITARY; CORPORATE TRUST OFFICE ......................... 2
SECTION 1.08 DEPOSITED SECURITIES ....................................... 2
SECTION 1.09 DOLLARS .................................................... 2
SECTION 1.10 FOREIGN REGISTRAR .......................................... 2
SECTION 1.11 ISSUER ..................................................... 2
SECTION 1.12 OWNER ...................................................... 3
SECTION 1.13 RECEIPTS ................................................... 3
SECTION 1.14 REGISTRAR .................................................. 3
SECTION 1.15 RESTRICTED SECURITIES ...................................... 3
SECTION 1.16 SECURITIES ACT OF 1933 ..................................... 3
SECTION 1.17 SHARES ..................................................... 3
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES,
EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS ...................................... 3
SECTION 2.01 FORM AND TRANSFERABILITY OF RECEIPTS ....................... 3
SECTION 2.02 DEPOSIT OF SHARES .......................................... 4
SECTION 2.03 EXECUTION AND DELIVERY OF RECEIPTS ......................... 5
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND
SPLIT-UP OF RECEIPTS ....................................... 6
SECTION 2.05 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES ............. 6
SECTION 2.06 LIMITATIONS ON EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS ......................... 7
SECTION 2.07 LOST RECEIPTS, ETC. ........................................ 8
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS ....... 8
SECTION 2.09 PRE-RELEASE OF RECEIPTS .................................... 8
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL
OWNERS OF RECEIPTS ......................................... 8
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION .......... 8
SECTION 3.02 LIABILITY OF OWNER FOR TAXES ............................... 9
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES ............................ 9
ARTICLE 4. THE DEPOSITED SECURITIES ................................... 9
SECTION 4.01 CASH DISTRIBUTIONS ......................................... 9
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS ........... 10
SECTION 4.03 DISTRIBUTIONS IN SHARES ................................... 10
SECTION 4.04 RIGHTS .................................................... 11
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY ............................ 12
SECTION 4.06 FIXING OF RECORD DATE ..................................... 13
SECTION 4.07 VOTING OF DEPOSITED SECURITIES ............................ 13
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES .................... 14
SECTION 4.09 REPORTS ................................................... 14
SECTION 4.10 LISTS OF OWNERS ........................................... 14
SECTION 4.11 WITHHOLDING ............................................... 14
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER ............. 15
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS
BY THE DEPOSITARY ......................................... 15
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE ISSUER .................................. 15
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SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN
AND THE ISSUER ............................................ 16
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY ................. 17
SECTION 5.05 THE CUSTODIANS ............................................ 17
SECTION 5.06 NOTICES AND REPORTS ....................................... 18
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC. ........... 18
SECTION 5.08 INDEMNIFICATION ........................................... 19
SECTION 5.09 CHARGES OF DEPOSITARY ..................................... 19
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS ......................... 20
SECTION 5.11 EXCLUSIVITY ............................................... 20
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS ...................... 20
ARTICLE 6. AMENDMENT AND TERMINATION ................................. 20
SECTION 6.01 AMENDMENT ................................................. 20
SECTION 6.02 TERMINATION ............................................... 21
ARTICLE 7. MISCELLANEOUS ............................................. 22
SECTION 7.01 COUNTERPARTS .............................................. 22
SECTION 7.02 NO THIRD PARTY BENEFICIARIES .............................. 22
SECTION 7.03 SEVERABILITY .............................................. 22
SECTION 7.04 OWNERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT.... 22
SECTION 7.05 NOTICES ................................................... 22
SECTION 7.06 SUBMISSION TO JURISDICTION; APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS .............................. 23
SECTION 7.07 GOVERNING LAW ............................................. 23
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ________________________, 2004, among
STARPHARMA HOLDINGS LTD. (ACN 078 532 180), incorporated under the laws of the
Commonwealth of Australia (herein called the Issuer), THE BANK OF NEW YORK, a
New York banking corporation (herein called the Depositary), and all Owners and
Beneficial Owners from time to time of American Depositary Receipts issued
hereunder.
W I T N E S S E T H:
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Issuer from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1.
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.02 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
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SECTION 1.04 Custodian.
The term "Custodian" shall mean the principal Melbourne, Victoria,
Australia office of Australia and New Zealand Banking Group Limited and the
principal Melbourne, Victoria, Australia office of the National Australia Bank
Limited, as agent of the Depositary for the purposes of this Deposit Agreement,
and any other firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.05, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively.
SECTION 1.05 deposit, deliver, execute, issue, register, surrender, transfer,
withdraw or cancel.
The terms "deposit", "deliver", "execute", "issue", "register",
"surrender", "transfer", "withdraw" or "cancel", when used with respect to
Shares, shall refer, where the context requires, to an entry or entries or an
electronic transfer or transfers in an account or accounts maintained by
institutions authorized under Australian law to effect transfers of securities
and not to the physical transfer of certificates representing the Shares.
SECTION 1.06 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.07 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder. The term "Corporate
Trust Office", when used with respect to the Depositary, shall mean the office
of the Depositary which at the date of this Agreement is 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
SECTION 1.08 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject as to cash
to the provisions of Section 4.05.
SECTION 1.09 Dollars.
The term "Dollars" shall mean United States dollars. The term "Dollars
Australian" shall mean Australian Dollars.
SECTION 1.10 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Issuer for the transfer and
registration of Shares.
SECTION 1.11 Issuer.
The term "Issuer" shall mean Starpharma Holdings Ltd. (ACN 078 532 180),
incorporated under the laws of the Commonwealth of Australia, and its
successors.
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SECTION 1.12 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.14 Registrar.
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.15 Restricted Securities.
The term "Restricted Securities shall mean Shares, or American Depositary
Shares representing Shares, that are acquired directly or indirectly from the
Issuer or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering, or which are subject to resale limitations under Regulation D under
that Act or both, or which are held by an officer, director (or persons
performing similar functions) or other affiliate of the Issuer, or which would
require registration under the Securities Act in connection with the offer and
sale thereof in the United States, or which are subject to other restrictions on
sale or deposit under the laws of the United States or Australia, or under a
shareholder agreement or the Articles of Association and by-laws of the Issuer.
SECTION 1.16 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 1.17 Shares.
The term "Shares" shall mean common shares in registered form of the
Issuer, heretofore validly issued and outstanding and fully paid, nonassessable
and free of any pre-emptive rights of the holders of outstanding Shares or
hereafter validly issued and outstanding and fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares or interim
certificates representing such Shares.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary;
provided,
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however, that such signature may be a facsimile if a Registrar for the Receipts
shall have been appointed and such Receipts are countersigned by the manual
signature of a duly authorized officer of the Registrar. The Depositary shall
maintain books on which each Receipt so executed and delivered as hereinafter
provided and the transfer of each such Receipt shall be registered. Receipts
bearing the manual or facsimile signature of a duly authorized signatory of the
Depositary who was at any time a proper signatory of the Depositary shall bind
the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar or
did not hold such office on the date of issuance of such Receipts.
The Receipts may 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 to
comply with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange upon which American Depositary Shares may
be listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of New York; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes, and neither
the Depositary nor the Issuer 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 instrument or instruments of
transfer, or endorsement, in form satisfactory to the Custodian, together with
all such certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, a Receipt or Receipts for the number of American Depositary Shares
representing such deposit.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that approval, if any is necessary, has been
granted by any governmental body in Australia 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 Issuer (or the appointed agent of the Issuer for transfer and registration
of Shares, which may but need not be the Foreign Registrar), if applicable, are
closed, shall also be accompanied by an agreement or assignment, or other
instrument
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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 and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Issuer or the
appointed agent of the Issuer for transfer and registration of Shares, which may
but need not be 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 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder (and in addition, if the transfer books of the Issuer or the appointed
agent of the Issuer for transfer and registration of shares, which may but need
not be the Foreign Registrar, if applicable, are open, the Depositary may in its
sole discretion require a proper acknowledgment or other evidence from the
Issuer that any Deposited Securities have been recorded upon the books of the
Issuer or the appointed agent of the Issuer for transfer and registration of
shares, which may but need not be the Foreign Registrar, if applicable, in the
name of the Depositary or its nominee or such Custodian or its nominee),
together with the other documents required as specified above, such Custodian
shall notify the Depositary of such deposit and the person or persons to whom or
upon whose written order a Receipt or Receipts are deliverable in respect
thereof and the number of American Depositary Shares to be evidenced thereby.
Such notification shall be made by letter or, at the request, risk and expense
of the person making the deposit, by cable, telex or facsimile transmission.
Upon receiving such notice from such Custodian, or upon the receipt of Shares by
the Depositary, the Depositary, subject to the terms and conditions of this
Deposit Agreement, shall execute and deliver at its Corporate Trust Office, to
or upon the order of the person or persons entitled thereto, a Receipt or
Receipts, registered in the name or names and evidencing any authorized number
of American Depositary Shares requested by such person or persons, but only upon
payment to the Depositary of the fees and expenses of the Depositary for the
execution and delivery of such Receipt or Receipts as provided in Section 5.09,
and of all taxes and governmental charges and fees payable in connection with
such deposit and the transfer of the Deposited Securities.
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SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-registrars for the purpose of
effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its functions, a
co- registrar's agent may require evidence of authority and compliance with
applicable laws and other requirements by Owners or persons entitled to Receipts
and will be entitled to protection and indemnity to the same extent as the
Depositary.
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.09 and payment of all taxes and governmental charges payable in connection
with such surrender and withdrawal of the Deposited Securities, and subject to
the terms and conditions of this Deposit Agreement, the Owner of such Receipt
shall be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
evidenced by such Receipt. Delivery of such Deposited Securities may be made by
the delivery of (a) certificates in the name of such Owner or as ordered by him
or certificates properly endorsed or accompanied by proper instruments of
transfer to such Owner or as ordered by him and (b) any other securities,
property and cash to which such Owner is then entitled in respect of such
Receipts to such Owner or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered 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 American
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Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward 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 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.
SECTION 2.06 Limitations on Execution and Delivery, Transfer and Surrender of
Receipts.
As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, Custodian or Registrar may require payment
from the depositor of Shares or the presenter of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.06.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Issuer at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of 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 Receipts and withdrawal of Deposited Securities may not
be suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Issuer or the deposit of Shares in connection
with voting at a shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Shares required to be registered under the provisions of the Securities Act
of 1933, unless a registration statement is in effect as to such Shares.
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SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of Receipts.
Notwithstanding Section 2.03 hereof, the Depositary may execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such Receipt has been Pre-Released. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts or Shares are to be delivered, that such person, or
its customer, owns the Shares or Receipts to be remitted, as the case may be,
(b) at all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of 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 appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Issuer or
the appointed agent of the Issuer for transfer and registration of shares, which
may but need not be the Foreign Registrar, if applicable, of the Shares
presented for deposit or other information, to execute such certificates and to
make such
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representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made.
SECTION 3.02 Liability of Owner or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner of such Receipt to the Depositary. The Depositary
may refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner thereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner of such Receipt shall remain liable for any deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
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
Receipts evidencing American Depositary Shares representing such Shares by that
person are not restricted under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of Receipts.
ARTICLE 4.
THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.05, convert such dividend or distribution into Dollars
and shall distribute the amount thus received (net of the fees and expenses of
the Depositary as provided in Section 5.09) to the Owners of Receipts 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 Issuer or the Depositary shall be required to withhold and
does withhold from such cash dividend or such other cash distribution an amount
on account of taxes, the amount distributed to the Owner of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest whole cent
and so distributed to Owners entitled thereto. The Issuer or its agent will
remit to the appropriate governmental
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agency in Australia all amounts withheld and owing to such agency. The
Depositary will forward to the Issuer or its agent such information from its
records as the Issuer may reasonably request to enable the Issuer or its agent
to file necessary reports with governmental agencies, and either the Depositary
or the Issuer or its agent may file any such reports necessary to obtain
benefits under the applicable tax treaties for the Owners of Receipts.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of 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 of Receipts 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
(including, but not limited to, any requirement that the Issuer 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 Beneficial Owners) 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 of Receipts
entitled thereto, all in the manner and subject to the conditions described in
Section 4.01.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the Issuer
shall so request, distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 and the payment of the fees and expenses of the Depositary as
provided in Section 5.09. The Depositary may withhold any such distribution of
Receipts if it has not received satisfactory assurances from the Issuer that
such distribution does not require registration under the Securities Act of 1933
or is exempt from registration under the provisions of such Act. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall sell the amount of Shares represented by the aggregate of
such fractions and distribute the net proceeds, all in the manner and subject to
the conditions described in Section 4.01. If additional Receipts are not so
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distributed, each American Depositary Share shall thenceforth also represent the
additional Shares distributed upon the Deposited Securities represented thereby.
SECTION 4.04 Rights.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
of Receipts or in disposing of such rights on behalf of such Owners of Receipts
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 of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Issuer to the Depositary that (a) the Issuer has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Issuer has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees 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 Issuer shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary 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
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the net proceeds of such sales (net of the fees and expenses of the Depositary
as provided in Section 5.09 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or Receipts 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 Issuer to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If an
Owner of Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under the Securities
Act of 1933, the Depositary shall not effect such distribution unless it has
received an opinion from recognized counsel in the United States for the Issuer
upon which the Depositary may rely that such distribution to such Owner is
exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners of Receipts entitled thereto
or, if the Depositary shall have distributed any warrants or other instruments
which entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
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
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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 of Receipts 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 of Receipts 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 necessary or convenient, the Depositary
shall fix a record date (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 or (ii) entitled to give instructions for the exercise of
voting rights at any such meeting, or (iii) who shall be responsible for any fee
assessed by the Depositary pursuant to this Deposit Agreement, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares. Subject to the provisions of Sections 4.01 through 4.05 and to the other
terms and conditions of this Deposit Agreement, the Owners of Receipts 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 Issuer, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary from the Issuer, (b) a statement
that the Owners of Receipts 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 of the Issuer, 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. Upon the written request of an Owner of a Receipt on such record date,
received on or before the date established by the
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Depositary for such purpose, the Depositary shall endeavor, in so far as
practicable, to vote or cause to be voted the amount of Shares or other
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt in accordance with the instructions set forth in such request. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the instruction date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
SECTION 4.08 Changes Affecting Deposited Securities.
Upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer or to which it is a party, or upon the redemption or
cancellation by the Issuer 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
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 Issuer shall so
request, execute and deliver additional Receipts as in the case of a dividend in
Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners of Receipts
at its Corporate Trust Office any reports and communications, including any
proxy soliciting material, received from the Issuer which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Issuer.
The Depositary shall also, upon written request, send to the Owners of Receipts
copies of such reports when furnished by the Issuer pursuant to Section 5.06.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall furnish to it a
list, as of a recent date, of the names, addresses and holdings of American
Depositary Shares by all persons in whose names Receipts are registered on the
books of the Depositary.
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
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therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable 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 of Receipts entitled thereto in proportion to the number of American
Depositary Shares held by them respectively.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts, provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Issuer or
a matter related to this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, the Depositary shall
act as Registrar or, with the approval of the Issuer, appoint a Registrar or one
or more co-registrars for registry of such Receipts in accordance with any
requirements of such exchange or exchanges. Such Registrar or co-registrars may
be removed upon the request or with the approval of the Issuer.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the Issuer.
Neither the Depositary nor the Issuer nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, (i) if by reason of any provision of
any present or future law or regulation of the United States or any other
country, or of any other governmental or regulatory authority or stock exchange,
or by reason of any provision, present or future, of the Articles of Association
of the Issuer, or by reason of any provision of any securities issued or
distributed by the Issuer, 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 Issuer shall be prevented, delayed or forbidden from, or
be subject to any civil or criminal penalty on account of, doing or performing
any act or thing which by the terms of this Deposit Agreement or Deposited
Securities it is provided shall be done or performed, (ii) by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may
be done or performed, (iii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement, (iv) for the
inability of any Owner or Beneficial Owner to benefit from any distribution,
offering, right or other benefit
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which is made available to holders of Deposited Securities but is not, under the
terms of this Deposit Agreement, made available to Owners or Beneficial Owners,
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 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, or for any other
reason, such distribution or offering may not be made available to Owners, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
SECTION 5.03 Obligations of the Depositary, the Custodian and the Issuer.
The Issuer assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners of Receipts, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owners
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Issuer shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts on behalf of any Owner
or Beneficial Owner or any person, unless indemnity satisfactory to it against
all expense and liability shall be furnished as often as may be required, and
the Custodian shall not be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Issuer shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
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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 to do so delivered to the Issuer, 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 Issuer by 60 days prior
written notice of such removal, to become effective upon the later of (i) the
60th 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 Issuer 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 Issuer 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 Issuer 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 of Receipts.
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 Depositary has appointed the Melbourne, Victoria, Australia office of
Australia and New Zealand Banking Group Limited and the principal Melbourne,
Victoria, Australia office of the National Australia Bank Limited as custodians
and agents of the Depositary for the purposes of this Deposit Agreement. The
Custodians or their successors in acting hereunder shall be subject at all times
and in all respects to the directions of the Depositary and shall be responsible
solely to it. Any Custodian may resign and be discharged from its duties
hereunder by notice of such resignation delivered to the Depositary at least 30
days prior to the date on which such resignation is to become effective. If upon
such resignation there shall be no Custodian acting hereunder, the Depositary
shall, promptly after receiving such notice, appoint a substitute custodian or
custodians, each of which shall thereafter be a Custodian hereunder. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners of Receipts to do so, it may appoint a substitute or additional
custodian or custodians, each of which shall thereafter be one of the Custodians
hereunder. Upon demand of the Depositary any Custodian shall deliver such of the
Deposited Securities held by it 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.
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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 Issuer 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 Issuer 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 Issuer will arrange for the translation into English, to the extent
required pursuant to any regulations of the Commission, and the prompt
transmittal by the Issuer to the Depositary and the Custodian of such notices
and any other reports and communications which are made generally available by
the Issuer to holders of its Shares. If requested in writing by the Issuer, the
Depositary will arrange for the mailing, at the Issuer's expense, of copies of
such notices, reports and communications to all Owners of Receipts. The Issuer
will timely provide the Depositary with the quantity of such notices, reports,
and communications, as requested by the Depositary from time to time, in order
for the Depositary to effect such mailings.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Issuer agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities (each a
"Distribution"), the Issuer will promptly furnish to the Depositary a written
opinion from U.S. counsel for the Issuer, which counsel shall be satisfactory to
the Depositary, stating whether or not the Distribution requires a Registration
Statement under the Securities Act of 1933 to be in effect prior to making such
Distribution available to Owners entitled thereto. If in the opinion of such
counsel a Registration Statement is required, such counsel shall furnish to the
Depositary a written opinion as to whether or not there is a Registration
Statement in effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer nor any
company controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Issuer or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933.
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SECTION 5.08 Indemnification.
The Issuer agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to, the fees and
expenses of counsel) which may arise out of acts performed or omitted, in
accordance with the provisions of 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, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Issuer or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Issuer, its directors, employees,
agents and affiliates and hold them harmless from any liability or expense which
may arise out of acts performed or omitted by the Depositary or its Custodian or
their respective directors, 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 Issuer agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Issuer from
time to time. The Depositary shall present its statement for such charges and
expenses to the Issuer at least once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), 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
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transfers of Shares generally on the Share register of the Issuer or Foreign
Registrar and applicable to transfers of Shares to or from the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.03, 4.03 or 4.04 and the surrender of Receipts
pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04
hereof, (7) a fee for the distribution of securities pursuant to Section 4.02,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners and (8) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.06 and
shall be payable at the sole discretion of the Depositary by billing such Owners
for such charge or by deducting such charge from one or more cash dividends or
other cash distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills
and other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Issuer
requests that such papers be retained for a longer period or turned over to the
Issuer or to a successor depositary.
SECTION 5.11 Exclusivity.
The Issuer agrees not to appoint any other depositary for issuance of
American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Issuer shall provide to the Depositary a list
setting forth, to the actual knowledge of the Issuer, those persons or entities
who beneficially own Restricted Securities and the Issuer shall update that list
on a regular basis. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance thereon.
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
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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 Issuer and
the Depositary without the consent of Owners or Beneficial Owners of Receipts in
any respect which they may deem necessary or desirable. Any amendment which
shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or which shall otherwise
prejudice any substantial existing right of Owners of Receipts, shall, however,
not become effective as to outstanding Receipts until the expiration of thirty
days after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner of a Receipt, at the time any amendment so
becomes effective, shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.02 Termination.
The Depositary shall, at any time at the direction of the Issuer,
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Issuer and the
Owners of all Receipts then outstanding at least 30 days prior to the date of
termination, if at any time 30 days shall have expired after the Depositary
shall have delivered to the Issuer a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.04. On and after the date of termination,
the Owner of a Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 2.05, and (c) payment of any
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners thereof, and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of four months
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net
-21-
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of this Deposit Agreement, the Issuer shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Beneficial Owner of a Receipt during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
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 Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof or any interest
therein.
SECTION 7.05 Notices.
Any and all notices to be given to the Issuer 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 Starpharma Holdings Ltd., Xxxxx
Building, Commercial Road, Melbourne, VIC 3004 Australia, Attention: Company
Secretary, Facsimile: (000) 0000-0000 or any other place to which the Issuer 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 personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to The Bank of New York,
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American Depositary
Receipt Administration, Facsimile: (212)
-22-
571-3050, or any other place to which the Depositary may have transferred its
Corporate Trust Office with notice to the Issuer.
Any and all notices to be given to any Owner of a Receipt shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Issuer may, however, act upon any cable, telex
or facsimile transmission received by it from the other or, from any Owner of a
Receipt, notwithstanding that such cable, telex or facsimile transmission shall
not subsequently be confirmed by letter as aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Issuer hereby (i) irrevocably designates and appoints Corporation
Service Company ("CSC"), 0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, XX
00000, as the Issuer'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)
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 Issuer in any such suit
or proceeding. The Issuer 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 Issuer 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
Agreement remains in force. In the event the Issuer fails to continue such
designation and appointment in full force and effect, the Issuer 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 Issuer at its address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed.
SECTION 7.07 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 Issuer, which shall be governed by the laws
of the Commonwealth of Australia.
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IN WITNESS WHEREOF, STARPHARMA HOLDINGS LTD. (ACN 078 532 180) and THE
BANK OF NEW YORK have duly executed this Deposit Agreement as of the day and
year first set forth above and all Owners of Receipts shall become parties
hereto upon acceptance by them of Receipts issued in accordance with the terms
hereof.
STARPHARMA HOLDINGS LTD.
By: _______________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: _______________________________
Name:
Title:
-24-
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents ten (10) deposited
Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR COMMON SHARES OF
WITHOUT PAR VALUE OF
STARPHARMA HOLDINGS LTD (ACN 078 532 180)
(INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF AUSTRALIA)
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that___________ ____________________________________________,
or registered assigns IS THE OWNER OF ___________________________________
AMERICAN DEPOSITARY SHARES
representing deposited common shares (herein called "Shares") of Starpharma
Holdings Ltd., incorporated under the laws of the Commonwealth of Australia
(herein called the "Company"). At the date hereof, each American Depositary
Share represents ten (10) Shares deposited or subject to deposit under the
Deposit Agreement (as such term is hereinafter defined) at the Melbourne,
Victoria, Australia office of Australia and New Zealand Banking Group Limited
and the principal Melbourne, Victoria, Australia office of the National
Australia Bank Limited (herein called the "Custodian"). The Depositary's
Corporate Trust Office is located at a different address than its principal
executive office. Its Corporate Trust Office is located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, and its principal executive office is located at Xxx Xxxx
Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of ________________________, 2004, (herein
called the "Deposit Agreement"), by and among the Company, the Depositary, and
all Owners and Beneficial Owners from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and Beneficial Owners of the Receipts and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Shares and held thereunder (such Shares, securities,
property, and cash are herein called "Deposited Securities"). Copies of the
Deposit Agreement are on file at the Depositary's Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of the Owner hereof or as ordered by
him or certificates properly endorsed or accompanied by proper instruments of
transfer and (b) any other securities, property and cash to which such Owner is
then entitled in respect of this Receipt. Such delivery will be made at the
option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt
1
or withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presentor
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
the Deposit Agreement or this Receipt, including, without limitation, this
Article 3.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act of 1933, unless a registration statement is
in effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner hereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner hereof shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor,
if applicable, are validly issued, fully paid, non-assessable, and free of any
preemptive rights of the holders of
2
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 Receipts evidencing American Depositary Shares
representing such Shares by that person are not restricted under the Securities
Act of 1933. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Company or
the appointed agent of the Company for transfer and registration of shares,
which may but need not be the Foreign Registrar, if applicable, of the Shares
presented for deposit or other information, to execute such certificates and to
make such representations and warranties, as the Depositary may deem necessary
or proper. The Depositary may withhold the delivery or registration of transfer
of any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary that
approval, if any is necessary, has been granted by any governmental body in the
Commonwealth of Australia which is then performing the function of the
regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company at least once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to or from the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.03, 4.03 or 4.04 of the Deposit
3
Agreement and the surrender of Receipts pursuant to Section 2.05 or 6.02 of the
Deposit Agreement, (6) a fee of $.02 or less per American Depositary Share (or
portion thereof) for any cash distribution made pursuant to Sections 4.01
through 4.04 of the Deposit Agreement, (7) a fee for the distribution of
securities pursuant to Section 4.02 of the Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares), but which securities are instead distributed
by the Depositary to Owners and (8) any other charge payable by the Depositary,
any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's agents in connection with the servicing of Shares or other
Deposited Securities (which charge shall be assessed against Owners as of the
date or dates set by the Depositary in accordance with Section 4.06 of the
Deposit Agreement and shall be payable at the sole discretion of the Depositary
by billing such Owners for such charge or by deducting such charge from one or
more cash dividends or other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any class
of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.02 of the Deposit Agreement (a "Pre-Release"). The Depositary may, pursuant to
Section 2.05 of the Deposit Agreement, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation from the person
to whom Receipts or Shares are to be delivered that such person, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited under the
Deposit Agreement; provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems 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
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt when properly endorsed or accompanied by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument under the laws of New
4
York; provided, however, that the Depositary, notwithstanding any notice to the
contrary, may treat the person in whose name this Receipt is registered on the
books of the Depositary as the absolute Owner hereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement or for all
other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under the Deposit Agreement to any
holder of a Receipt unless such holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying at the public reference facilities maintained by the
Commission located at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also, upon written request, send to Owners of Receipts copies of
such reports when furnished by the Company pursuant to the Deposit Agreement.
Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English to the extent such materials are required to be translated into English
pursuant to any regulations of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary 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
5
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) to the Owners of Receipts entitled thereto; provided,
however, that in the event that the Company or the Depositary is required to
withhold and does withhold from any cash dividend or other cash distribution in
respect of any Deposited Securities an amount on account of taxes, the amount
distributed to the Owners of the Receipts evidencing American Depositary Shares
representing such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Section 4.11 and 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 of Receipts entitled thereto, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees 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.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may, and shall if the Company shall so request,
distribute to the Owners of outstanding Receipts entitled thereto, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free distribution
subject to the terms and conditions of the Deposit Agreement with respect to the
deposit of Shares and the issuance of American Depositary Shares evidenced by
Receipts, including the withholding of any tax or other governmental charge as
provided in Section 4.11 of the Deposit Agreement and the payment of the fees
and expenses of the Depositary as provided in Article 7 hereof and Section 5.09
of the Deposit Agreement. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary will sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01 of the Deposit Agreement. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent the additional
Shares distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable
6
to pay any such taxes or charges, and the Depositary shall distribute the net
proceeds of any such sale after deduction of such taxes or charges to the Owners
of Receipts entitled thereto.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
of Receipts or in disposing of such rights on behalf of such Owners of Receipts
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 of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this Article 13, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary 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
7
the net proceeds of such sales (net of the fees and expenses of the Depositary
as provided in Section 5.09 of the Deposit Agreement and all taxes and
governmental charges payable in connection with such rights and subject to the
terms and conditions of the Deposit Agreement) for the account of such Owners
otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Owners because of exchange restrictions or the date of delivery of any Receipt
or Receipts or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in the
Deposit Agreement shall create, any obligation on the part of the Company to
file a registration statement with respect to such rights or underlying
securities or to endeavor to have such a registration statement declared
effective. If an Owner of Receipts requests the distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under the Securities Act of 1933, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners of Receipts entitled thereto
or, if the Depositary shall have distributed any warrants or other instruments
which entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.09
of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
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
8
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 of Receipts 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 of Receipts 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 necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) who shall be responsible
for any fee assessed by the Depositary pursuant to the Deposit Agreement, or (b)
on or after which each American Depositary Share will represent the changed
number of Shares, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, 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 of Receipts as of the close of business on a specified record
date will be entitled, subject to any applicable provision of law and of the
Articles of Association of the Company, 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. Upon the written request of an Owner of a Receipt on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor insofar as practicable to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by such
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the
9
Shares or other Deposited Securities, other than in accordance with such
instructions.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the instruction date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
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 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
request, execute and deliver additional Receipts as in the case of a dividend in
Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, (i) if by reason of any provision of
any present or future law or regulation of the United States or any other
country, or of any other governmental or regulatory authority, or by reason of
any provision, present or future, of the Articles of Association 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 shall be prevented, delayed or forbidden from or be subject to any
civil or criminal penalty on account of doing or performing any act or thing
which by the terms of the Deposit Agreement or Deposited Securities it is
provided shall be done 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
Beneficial Owner 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 Beneficial
Owners, 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
10
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 assumes any obligation or shall be subject to any
liability under the Deposit Agreement to Owners or Beneficial Owners of
Receipts, except that they agree to perform their obligations specifically set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
shall not be subject to any liability with respect to the validity or worth of
the Deposited Securities. Neither the Depositary nor the Company shall be under
any obligation to appear in, prosecute or defend any action, suit, or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
on behalf of any Owner or Beneficial Owner or other person, unless indemnity
satisfactory to it against all expense and liability shall be furnished as often
as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary. Neither the Depositary nor the Company 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 Beneficial Owner of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith. The Depositary shall not be liable for any
acts or omissions made by a successor depositary whether in connection with a
previous act or omission of the Depositary or in connection with a matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises, the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Company agrees to indemnify the Depositary, its
directors, employees, agents and affiliates and any Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, the expenses of counsel) which may arise out of acts performed or omitted,
in accordance with the provisions of the Deposit Agreement and of the Receipts,
as the same may be amended, modified, or supplemented from time to time, (i) by
either the Depositary or a Custodian or their respective directors, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Company or any of its
directors, employees, agents and affiliates. No disclaimer of liability under
the Securities Act of 1933 is intended by any provision of the Deposit
Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; 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 60 days prior written
notice of such removal, to become effective upon the later of (i) the 60th day
after delivery of the notice to the Depositary and (ii) the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. Whenever the Depositary in its discretion determines that it
is in the best interest of the Owners of Receipts to do so, it may appoint a
substitute or additional custodian or custodians.
11
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 Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner of a Receipt at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby except in order to comply with mandatory
provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 30 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding at least 30 days prior to the date of
termination, if at any time 30 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in the Deposit Agreement. On and after the date of
termination, the Owner of a Receipt will, upon (a) surrender of such Receipt at
the Corporate Trust Office of the Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 2.05 of the
Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, in exchange for Receipts surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). At any time after the
expiration of four months from the date of termination, the Depositary may sell
the Deposited Securities then held under the Deposit Agreement and may
thereafter hold
12
uninvested the net proceeds of any such sale, together with any other cash then
held by it thereunder, unsegregated and without liability for interest, for the
pro rata benefit of the Owners of Receipts which have not theretofore been
surrendered, such Owners thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Owner of such Receipt in accordance with the terms and conditions
of the Deposit Agreement, and any applicable taxes or governmental charges).
Upon the termination of the Deposit Agreement, the 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. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed Corporation
Service Company ("CSC"), 0000 Xxxxxx xx xxx Xxxxxxxx, Xxxxx 0000, Xxx Xxxx, XX
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.
13
