Effective February 6, 2013 the Companys
name changed to Merlin Diamonds
Limited
Exhibit A
to
DEPOSIT AGREEMENT
AMERICAN DEPOSITARY
SHARES (Each American Depositary Share
represents ten deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
OF A$0.20 EACH OF
STRIKER RESOURCES N.L.
(INCORPORATED UNDER THE LAWS
OF THE STATE OF WESTERN
AUSTRALIA, AUSTRALIA)
The Bank of New York, as
depositary (hereinafter called the
Depositary), hereby certifies that
_________________ or registered assigns IS
THE OWNER OF ____________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares of
A$0.20 each (herein called Shares) of
STRIKER RESOURCES N.L.,
incorporated under the laws of the State of
Western Australia, Australia (herein called
the Company). At the date hereof, each
American Depositary Share represents ten
Shares which are either deposited or subject
to deposit under the deposit agreement at
the Depositary, Australia & New Zealand
Banking Group, National Australia Bank
Limited, or Westpac Banking Corp. (each
herein called a Custodian). The Depositarys
Corporate Trust Office is located at an
address different from that of its principal
executive office. Its Corporate Trust Office
is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, and its principal executive
office is located at 00 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
THE DEPOSITARYS CORPORATE
TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX,
XXX XXXX 00000
1. THE DEPOSIT
AGREEMENT. This American Depositary
Receipt is one of an issue of American
Depositary Receipts (herein called Receipts),
all issued and to be issued upon the terms
and conditions set forth in the deposit
agreement, dated as of __________ __,
1993 (herein called the Deposit Agreement),
by and among the Company, the Depositary,
and all Owners and Holders from time to
time of Receipts issued thereunder, each of
whom by accepting a Receipt agrees to
become a party thereto and become bound
by all the terms and conditions thereof. The
Deposit Agreement sets forth the rights of
Owners and Holders of the Receipts and the
rights and duties of the Depositary in respect
of the Shares deposited thereunder and any
and all other securities, property and cash
from time to time received in respect of
such Shares and held thereunder (such
Shares, securities, property and cash are
herein called Deposited Securities). Copies
of the Deposit Agreement are on file at the
Depositarys Corporate Trust Office in New
York City and at the offices of the
Custodians.
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 used but
not defined herein shall have the meanings
set forth in the Deposit Agreement.
2. SURRENDER OF
RECEIPTS AND WITHDRAWAL OF
SHARES. Upon surrender of this Receipt at
the Corporate Trust Office of the Depositary
for the purpose of withdrawal of the
Deposited Securities represented hereby,
and upon payment of the fee of the
Depositary for the surrender of Receipts
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
amount of Deposited Securities at the time
represented by the American Depositary
Shares for which this Receipt is issued.
Delivery of such Deposited Securities shall
be made by the delivery of (i) certificates in
the name of the Owner hereof or as ordered
by him or certificates properly endorsed or
accompanied by proper instruments of
transfer to the Owner hereof or as ordered
by him and (ii) any other securities, property
and cash to which the Owner hereof is then
entitled in respect of such Receipt. Such
delivery will be made at the option of the
Owner hereof, either at the office of any
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 request, risk and expense of
the Owner hereof.
3. TRANSFERS, SPLITUPS
AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on
the books of the Depositary at its Corporate
Trust Office by the Owner hereof in person
or by duly authorized attorney, upon
surrender of this Receipt at its Corporate
Trust Office properly endorsed for transfer
or accompanied by a proper instrument or
instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the
fees and 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, representing the same aggregate
number of American Depositary Shares as
the Receipt or Receipts surrendered. As a
condition precedent to the execution and
delivery, registration of transfer, splitup,
combination or surrender of any Receipt or
withdrawal of any Deposited Securities, the
Depositary, any Custodian or any Registrar
or coRegistrar may require payment from
the depositor of Shares or the presentor of
the Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge
and any stock transfer or registration fee
with respect thereto (including any such tax
or charge or fee with respect to Shares
being deposited or withdrawn) and payment
of any applicable fees as provided in this
Receipt, may require the production of proof
satisfactory to it as to the identity and
genuineness of any signature and may also
require compliance with such regulations, if
any, as the Depositary may establish
consistent with the provisions of the Deposit
Agreement or this Receipt, including, without
limitation, Paragraph 23 of this Receipt.
After consultation with the
Company, 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 or the Company (or, if
applicable, of the Foreign Registrar) 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 Paragraph 23
hereof. 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 United States
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 and the rules and
regulations promulgated thereunder, unless
a registration statement is in effect as to
such Shares.
4. LIABILITY OF OWNER
FOR TAXES AND OTHER CHARGES. If
any tax or other governmental charges shall
become payable by the Depositary or any
Custodian with respect to any Receipt or
any Deposited Securities represented by the
American Depositary Shares evidenced
hereby, the amount of such tax or other
governmental charges shall be payable to
the Depositary by the Owner hereof. The
Depositary may refuse to effect any
registration of transfer of this Receipt or any
withdrawal of Deposited Securities
represented hereby 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
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; the Owner hereof
remaining liable for any deficiency.
5. DISCLOSURE OF
INTERESTS. The Company may from
time to time request Owners or former
Owners to provide information as to the
capacity in which such Owners own or
owned Receipts and regarding the identity of
any other Persons then or previously
interested in such Receipts and the nature of
such interest and various other matters.
Each Owner agrees to provide any
information requested by the Company or
the Depositary pursuant to this Paragraph
and Section 3.04 of the Deposit Agreement
whether or not such Person is still an Owner
at the time of such request. The Depositary
agrees to use reasonable efforts to comply
with written instructions received from the
Company requesting that the Depositary
forward any such requests to the Owners
and to forward to the Company any such
responses to such requests received by the
Depositary.
6. WARRANTIES OF
DEPOSITORS. Every Person depositing
Shares or other securities, if any, hereunder
and under the Deposit Agreement shall be
deemed thereby to represent and warrant
that such Shares and such other securities,
if any, and each certificate therefor are
validly issued, fully paid, nonassessable and
free of any preemption rights of the holders
of outstanding Shares and such other
securities, if any, 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
Shares and such other securities, if any, and
the offer and sale of Receipts evidencing
American Depositary Shares representing
such Shares and other securities, if any, by
that Person are not restricted under the
Securities Act of 1933 and that the Shares
and such other securities, if any, deposited
under the Deposit Agreement are not
Restricted Securities. Such representations
and warranties shall survive the deposit of
such Shares and other securities, if any, and
issuance of such Receipts.
7. FILING PROOFS,
CERTIFICATES AND OTHER
INFORMATION. Any Person presenting
Shares for deposit or any Owner of a
Receipt may be required from time to time
to file such proof of citizenship or residence,
evidence of the number of Shares
beneficially owned or any other matters
necessary or appropriate to evidence
compliance with the Corporations Law of
Australia, the Banking (Foreign Exchange)
Regulations or the Foreign Acquisitions and
Takeovers Xxx 0000 of Australia, exchange
control approval, the identity of the Person
legally or beneficially interested in the
Receipt and the nature of such interest, or
such information relating to the registration
on the books of the Company (or of the
appointed agent of the Company for transfer
and registration of Shares, which may be,
but need not be, the Foreign Registrar) of
the Shares presented for deposit or other
information, and to execute such certificates
and to make such representations and
warranties, as the Depositary or the
Company may deem necessary or proper.
The Depositary may withhold the delivery or
registration of transfer of any Receipt or the
distribution or delivery of any Deposited
Securities or of the proceeds of the sale of
any Deposited Securities until such proof or
other information is filed or such certificates
are executed or such representations and
warranties are made. Upon reasonable
request, the Depositary shall, at the request
of the Company, provide the Company in a
timely manner with copies of all such proofs,
certificates and written representations and
warranties provided to the Depositary under
this Paragraph and Section 3.01 of the
Deposit Agreement. No Share shall be
accepted for deposit unless accompanied
by evidence satisfactory to the Depositary
(which may be an opinion of counsel) that
any necessary approval has been granted
by the governmental body, if any, in the
Commonwealth of Australia, which is then
performing the function of exchange control.
8. CHARGES OF
DEPOSITARY. The Company agrees to
pay the fees and reasonable expenses 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 once every three months. The
charges and expenses of any Custodian are
for the sole account of the Depositary.
The following charges shall
not be payable by the Company but 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), as applicable: (i) the
fees of the Depositary for the execution and
delivery of Receipts pursuant to Section
2.03 of the Deposit Agreement, the
execution and delivery of Receipts pursuant
to Section 4.03 of the Deposit Agreement,
transfers pursuant to Section 2.04 of the
Deposit Agreement, the surrender of
Receipts pursuant to Section 2.05 of the
Deposit Agreement, and the making of any
cash distribution pursuant to the Deposit
Agreement, including but not limited to
Sections 4.01 through 4.04 thereof, (ii) taxes
and other governmental charges, (iii) 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 of the Foreign Registrar
and applicable to transfers of Shares into the
name of the Depositary or its nominee or
any Custodian or its nominee on the making
of deposits or withdrawals under the Deposit
Agreement, (iv) such cable, telex and
facsimile transmission expenses as are
expressly provided for in the Deposit
Agreement, (v) such expenses as are
incurred by the Depositary in the conversion
of foreign currency pursuant to Section 4.05
of the Deposit Agreement, (vi) a fee not in
excess of US$5.00 per 100 American
Depositary Shares (or portion thereof) for
the issuance or surrender, respectively, of a
Receipt, and (vii) a fee not in excess of
US$.02 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 thereof.
The Depositary, subject to
Paragraph 9 hereof, may own and deal in
any class of securities of the Company and
its affiliates and in Receipts.
9. PRERELEASE 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 (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
PreReleased, whether or not such
cancellation is prior to the termination of
such PreRelease or the Depositary knows
that such Receipt has been PreReleased.
The Depositary may receive Receipts in lieu
of Shares in satisfaction of a PreRelease.
Each PreRelease will be (a) preceded or
accompanied by a written representation
from the person to whom Receipts are to be
delivered that such person, or its customer,
owns the Shares or Receipts to be remitted,
as the case may be, (b) at all times fully
collateralized with cash or such other
collateral as the Depositary deems
appropriate, (c) terminable by the
Depositary on not more than five (5)
business days notice, and (d) subject to
such further indemnities and credit
regulations as the Depositary deems
appropriate. The number of American
Depositary Shares which are outstanding at
any time as a result of PreRelease will not
normally exceed thirty percent (30%) of the
Shares deposited under the Deposit
Agreement then outstanding; 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.
10. TITLE TO RECEIPTS. It
is a condition of this Receipt and every
successive Owner and Holder of this
Receipt by accepting or holding the same
consents and agrees, that title to this Receipt
(and to the American Depositary Shares
evidenced hereby) when such Receipt is
properly endorsed or accompanied by
proper instrument or instruments of transfer,
is transferable by delivery with the same
effect as in the case of a negotiable
instrument; provided, however, that the
Company and the Depositary,
notwithstanding any notice to the contrary,
may treat the Person in whose name this
Receipt is registered on the books of the
Depositary as the absolute owner hereof for
the purpose of determining the Person
entitled to any distribution of dividends or
other distributions or to any notice provided
for in the Deposit Agreement and for all
other purposes and neither the Depositary
nor the Company shall have any obligation
or be subject to any liability under the
Deposit Agreement or this Receipt to any
Holder of a Receipt unless such Holder is
the Owner hereof.
11. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be
valid or obligatory for any purpose, unless
this Receipt shall have been executed by
the Depositary by the manual or facsimile
signature of a duly authorized signatory or, if
a Registrar for Receipts shall have been
appointed, countersigned by the manual or
facsimile signature of a duly authorized
officer of the Registrar.
12. REPORTS;
INSPECTION OF TRANSFER BOOKS,
ETC. The Company files with the United
States Securities and Exchange
Commission (hereinafter called the
Commission) certain reports in compliance
with the periodic reporting requirements of
the Securities Exchange Act of 1934. Such
reports will be available for inspection and
copying by Owners and Holders at the
public reference facilities maintained by the
Commission located at 000 Xxxxx Xxxxxx,
X.X., Xxxxxxxxxx, XX 00000.
The Depositary will make
available for inspection by Owners at its
Corporate Trust Office (i) the Deposit
Agreement and (ii) 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 keep
books for the registration of Receipts and
transfers of Receipts which at all reasonable
times shall be open for inspection by the
Owners, provided that such inspection shall
not be for the purpose of communicating
with the Owners in the interest of a business
or object other than the business of the
Company or a matter related to the Deposit
Agreement or the Receipts. To the extent
required under Rule 12g32(b) or otherwise
under the Securities Exchange Act of 1934
such reports and communications, including
any such proxy soliciting material, furnished
to the Depositary by the Company shall be
furnished in English, or where permitted by
such Rule, summarized in English.
13. DIVIDENDS AND
DISTRIBUTIONS. Whenever the
Depositary receives any cash dividend or
other cash distribution by the Company on
any Deposited Securities, the Depositary
will, subject to the Deposit Agreement,
convert such dividend or distribution into
Dollars and will promptly distribute the
amount thus received (net of the fees of the
Depositary as provided in Paragraph 8) to
the Owners entitled thereto, in proportion to
the number of American Depositary Shares
representing such Deposited Securities held
by them, respectively; provided, however,
that in the event that the Depositary or the
Company is required to withhold and does
withhold from any cash dividend or other
cash distribution in respect of any Deposited
Securities an amount on account of taxes or
other governmental charges, the amount
distributed to the Owners on the American
Depositary Shares representing such
Deposited Securities shall be reduced
accordingly. The Depositary shall distribute
only such amount, however, as can be
distributed without attributing to any Owner a
fraction of one cent. Any such fractional
amounts shall be rounded to the nearest
whole cent and so distributed to Owners
entitled thereto.
Subject to the provisions of
Sections 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary
receives any distribution other than cash,
Shares or rights upon any Deposited
Securities, the Depositary shall cause the
securities or property received by it to be
distributed to the Owners entitled thereto, in
proportion to the number of American
Depositary Shares representing such
Deposited Securities held by them
respectively, in any manner that the
Depositary may deem equitable and
practicable for accomplishing such
distribution; provided, however, that if in the
opinion of the Depositary such distribution
cannot be made proportionately among the
Owners entitled thereto, or if for any other
reason (including, but not limited to, any
requirement that the Company, a Custodian
or the Depositary withhold an amount on
account of taxes or other governmental
charges or that such securities must be
registered under the Securities Act of 1933
in order to be distributed to Owners or
Holders) the Depositary deems such
distribution not to be feasible, the Depositary
may adopt such method as it may deem
equitable and practicable for the purpose of
effecting such distribution, including, but not
limited to, the public or private sale of the
securities or property thus received, or any
part thereof, and the net proceeds of any
such sale (net of the fees of the Depositary
as provided in Paragraph 8) shall be
distributed by the Depositary to the Owners
entitled thereto as in the case of a
distribution received in cash.
If any distribution upon any
Deposited Securities 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, in
proportion to the number of American
Depositary Shares representing such
Deposited Securities held by them
respectively, additional Receipts for an
aggregate number of American Depositary
Shares representing the amount of Shares
received as such dividend or free
distribution. 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 in Dollars, all in the manner
and subject to the conditions set forth in the
Deposit Agreement. If additional Receipts
are not so distributed, each American
Depositary Share shall thenceforth also
represent the additional Shares distributed
upon the Deposited Securities represented
thereby.
In the event that the
Depositary determines that any distribution
in property (including Shares and rights to
subscribe therefor) is subject to any tax
which the Depositary is obligated to
withhold, the Depositary may dispose of all
or a portion of such property (including
Shares and rights to subscribe therefor) in
such amounts and in such manner as the
Depositary deems necessary and
practicable to pay any such taxes, by public
or private sale, and the Depositary shall
distribute the net proceeds of any such sale
after deduction of such taxes to the Owners
entitled thereto in proportion to the number
of American Depositary Shares held by
them respectively and the Depositary shall
distribute any unsold balance of such
property in accordance with the provisions
of this Receipt and the Deposit Agreement.
The Depositary shall use
reasonable efforts but without expense to
the Depositary to make and maintain
arrangements enabling Owners who are
citizens or residents of the United States of
America to receive any tax credits or other
benefits (pursuant to treaty or otherwise)
relating to dividend payments on the
American Depositary Shares.
14. 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 or in
disposing of such rights on behalf of any
Owners and making the net proceeds
available to such Owners or, if by the terms
of such rights offering or for any other
reason, the Depositary may neither make
such rights available to any Owners nor
dispose of such rights and make the net
proceeds available to such Owners, then the
Depositary shall allow the rights to lapse;
provided, however, that if at the time of the
offering of any rights the Depositary
determines in its discretion that it is lawful
and feasible to make such rights available to
all Owners or to certain Owners but not to
other Owners, the Depositary may distribute
to any Owner to whom it determines the
distribution to be lawful and feasible, in
proportion to the number of American
Depositary Shares held by such Owner,
warrants or other instruments therefor in
such form as it deems appropriate. If the
Depositary determines in its discretion that it
is not lawful and feasible to make such
rights available to certain Owners, it may sell
the rights or warrants or other instruments in
proportion to the number of American
Depositary Shares held by the Owners to
whom it has determined it may not lawfully
or feasibly make such rights available, and
allocate the net proceeds of such sales (net
of the fees of the Depositary as provided in
Section 5.09 of the Deposit Agreement and
all taxes and governmental charges payable
in connection with such rights and subject to
the terms and conditions of this Receipt and
of the Deposit Agreement) for the account
of such Owners otherwise entitled to such
rights, warrants or other instruments, upon
an averaged or other practical basis without
regard to any distinctions among such
Owners because of exchange restrictions or
the date of delivery of any Receipt or
otherwise. The Depositary 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.
If an Owner of Receipts
requests the distribution of warrants or other
instruments in order to exercise the rights
allocable to the American Depositary Shares
of such Owner hereunder, the Depositary
will make such rights available to such
Owner upon written notice from the
Company to the Depositary that (i) the
Company has elected in its sole discretion to
permit such rights to be exercised and (ii)
such Owner has executed such documents
as the Company has determined in its sole
discretion are reasonably required under
applicable law. Upon instruction pursuant to
such warrants or other instruments to the
Depositary from such Owner to exercise
such rights, upon payment by such Owner
to the Depositary for the account of such
Owner of an amount equal to the purchase
price of the Shares to be received upon the
exercise of the rights, and upon payment of
the fees of the Depositary 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 Restricted
Receipts to such Owner.
If registration under the
Securities Act of 1933 of the securities to
which any rights relate is required in order
for the Company to offer such rights to
Owners and sell the securities received
upon the exercise of such rights to Owners,
the Depositary will not offer such rights to
Owners unless and until such a registration
statement is in effect, or unless the offering
and sale of such securities to Owners of
such Receipts is exempt from registration
under the provisions of such Act.
15. CONVERSION OF
FOREIGN CURRENCY. Whenever the
Depositary shall receive foreign currency,
by way of dividends or other distributions or
as 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 distributed to the Owners
entitled thereto, the Depositary shall
promptly 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 (net of any
conversion expenses of the Depositary)
shall be promptly distributed to the Owners
entitled thereto or, if the Depositary shall
have distributed any warrants or other
instruments which entitle the holders thereof
to such Dollars, then to the holders of such
warrants and/or instruments upon surrender
thereof for cancellation in whole or in part
depending upon the terms of such warrants
and/or instruments. Such distribution shall
be made in proportion to the number of
American Depositary Shares representing
Deposited Securities held respectively by
such Owners and entitling them to such
Dollars. Such distribution may be made
upon an averaged or other practicable basis
without regard to any distinctions among
Owners on account of exchange restrictions
or otherwise.
If such conversion or
distribution can be effected only with the
approval or license of any government or
agency thereof, the Depositary shall file
such application for approval or license, if
any, as it may deem desirable.
If at any time the Depositary
shall determine that in its judgment any
foreign currency received by the Depositary
is not convertible on a reasonable basis into
Dollars distributable to Owners entitled
thereto, or if any approval or license of any
government or agency thereof which is
required for such conversion is denied or in
the opinion of the Depositary is not
obtainable, or if any such approval or license
is not obtained within a reasonable period as
determined by the Depositary, the
Depositary may distribute the foreign
currency (or an appropriate document
evidencing the right to receive such foreign
currency) received by the Depositary to, or
in its discretion may hold such foreign
currency 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 Owners
entitled thereto, the Depositary may in its
discretion make such conversion and
distribution in Dollars to the extent
permissible to the Owners entitled thereto
and may distribute the balance of the foreign
currency received by the Depositary to, or
hold such balance for the respective
accounts of, the Owners entitled thereto.
16. RECORD DATES.
Whenever any cash dividend or other cash
distribution shall become payable or any
distribution other than cash shall be made, or
whenever rights shall be issued with respect
to the Deposited Securities, or whenever for
any reason the Depositary causes a change
in the number of Deposited Securities that
are represented by each American
Depositary Share or whenever the
Depositary shall receive notice of any
meeting of holders of Shares or other
Deposited Securities, the Depositary will fix
a record date after consultation with the
Company if such record date is different
from the record date applicable to the
Deposited Securities for the determination of
the Owners who will be entitled to receive
such dividend, distribution or rights, or the
net proceeds of the sale thereof, or to give
instructions for the exercise of voting rights
at any such meeting, or for fixing the date
on or after which each American Depositary
Share will represent the changed number of
Shares, subject to the provisions of the
Deposit Agreement.
17. VOTING OF
DEPOSITED SECURITIES.
(i) As soon as practicable,
unless otherwise instructed by the
Company, after receipt of notice of any
meeting or solicitation of consents or proxies
of holders of Shares or other Deposited
Securities, the Depositary shall mail to the
Owners a notice containing (a) such
information as is contained in the notice
received by the Depositary, (b) a statement
that each Owner at the close of business on
a specified record date will be entitled,
subject to applicable law and the provisions
of the Memorandum and Articles of
Association of the Company and the terms
of or governing Deposited Securities, to
instruct the Depositary as to the exercise of
voting rights, if any, pertaining to the
Deposited Securities represented by the
American Depositary Shares evidenced by
such Owners Receipts, and (c) a statement
as to the manner in which such instructions
may be given, including, when applicable,
an express indication that instructions may
be given (or, if applicable, deemed given in
accordance with clause (ii) of this Paragraph
17 if no instruction is received) to the
Depositary to give a discretionary proxy to a
Person designated by the Company. Upon
the written request of an Owner on such
record date, received on or before the date
established by the Depositary for such
purpose, the Depositary shall endeavor
insofar as practicable and permitted under
applicable law and the provisions of the
Memorandum and Articles of Association of
the Company and the terms of or governing
Deposited Securities to vote or cause to be
voted the Deposited Securities represented
by the American Depositary Shares
evidenced by such Owners Receipts in
accordance with any nondiscretionary
instructions set forth in such request,
including the instruction to give a
discretionary proxy to a Person designated
by the Company. The Depositary shall not,
and the Depositary shall ensure that each
Custodian or any of its nominees shall not,
exercise any voting discretion over any
Deposited Securities.
(ii) If after complying with the
procedures set forth in this Paragraph the
Depositary does not receive instructions
from the Owner of a Receipt on or before
the date established by the Depositary for
such purpose, the Depositary shall give a
discretionary proxy for the Shares
evidenced by such Receipt to a Person
designated by the Company.
18. CHANGES AFFECTING
DEPOSITED SECURITIES. Upon any
change in nominal value, change in par
value, splitup, consolidation, or any other
reclassification of Deposited Securities, or
upon any recapitalization, reorganization,
merger or consolidation, or sale of assets
affecting the Company or to which it is a
party, any securities which shall be received
by the Depositary or a Custodian in
exchange for or in conversion of or in
respect of Deposited Securities shall be
treated as new Deposited Securities under
the Deposit Agreement, and American
Depositary Shares shall thenceforth
represent (in addition to existing Deposited
Securities), the new Deposited Securities so
received in exchange or conversion, unless
additional Receipts are delivered pursuant to
the following sentence. In any such case
the Depositary may, upon consultation with
the Company, and shall, if the Company
shall so request, execute and deliver
additional Receipts as in the case of a
dividend on the Shares, or call for the
surrender of outstanding Receipts to be
exchanged for new Receipts specifically
describing such new Deposited Securities.
19. LIABILITY OF
DEPOSITARY AND COMPANY. Neither
the Depositary nor the Company shall incur
any liability to any Owner, if by reason of
any provision of any present or future law of
the United States of America, the
Commonwealth of Australia or any State or
Territory thereof or any other country, or of
any other governmental or regulatory
authority, stock exchange or NASDAQ or
by reason of any provisions, present or
future, of the Memorandum and Articles of
Association of the Company, or by reason
of any terms 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 other circumstances
beyond their control, the Depositary or the
Company shall be prevented, delayed or
forbidden from doing or performing any act
or thing contemplated by the terms of the
Deposit Agreement; nor shall the Depositary
or the Company incur any liability to any
Owner or Holder by reason of any non
performance or delay, caused as aforesaid,
in the performance of any act or thing
contemplated by the terms of the Deposit
Agreement, or by reason of any exercise of,
or failure to exercise, any discretion
provided for in the Deposit Agreement.
Where, by the terms of a distribution
pursuant to Sections 4.01, 4.02 or 4.03 of
the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the
Deposit Agreement, or because of
applicable law, such distribution or offering
may not be made available to all or certain
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, without any liability of
the Depositary or the Company to any
Owner or other party. Neither the Company
nor the Depositary assumes any obligation
or shall be subject to any liability under the
Deposit Agreement to Owners or Holders,
except that they agree to use their best
judgment and to act in good faith in the
performance of such duties as are set forth
in the Deposit Agreement to be performed
by each of them, respectively. 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, which in its opinion
may involve it in expense or liability, unless
indemnity satisfactory to it against all
expense and liability is furnished as often as
may be required, and no Custodian shall be
under any obligation whatsoever with
respect to such proceedings, the
responsibility of each 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 any other Person
believed by either of them in good faith to be
competent to give such advice or
information including but not limited to, any
such action or nonaction based upon any
written notice, request, direction or other
document believed by either of them to be
genuine and to have been signed or
presented by the proper party or parties.
The Depositary shall not be responsible for
any failure to carry out any instructions to
vote any of the Deposited Securities, or for
the manner in which any such vote is cast or
the effect of any such vote, provided that
any such action or nonaction is in good faith.
The Depositary shall not be liable for any
acts or omissions made by a successor
depositary whether in connection with a
previous act or omission of the Depositary
or in connection with a matter arising wholly
after the removal or resignation of the
Depositary, provided that the Depositary
exercised its best judgment and good faith
while it acted as Depositary. The Company
agrees to indemnify the Depositary and any
Custodian and any of their respective
directors, employees, agents and affiliates
against, and hold each of them harmless
from, any liability or expense which may
arise out of or in connection with the
acceptance or administration of their duties
in connection with the Deposit Agreement
and of the Receipts, as the same may be
amended, modified or supplemented from
time to time, (i) by either the Depositary or
any Custodian or any of their respective
directors, employees, agents or affiliates,
except for any liability or expense arising out
of the negligence or bad faith of any of
them, or (ii) by the Company or any of its
directors, employees, duly authorized agents
and affiliates. The Depositary agrees to
indemnify the Company, 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 any Custodian
or any of their respective directors,
employees, agents or affiliates due to the
failure of any of them to use their best
judgment or act in good faith. No disclaimer
of liability under the Securities Act of 1933 is
intended by any provision of the Deposit
Agreement.
Any Person seeking
indemnification hereunder (an indemnified
person) shall notify the Person from whom it
is seeking indemnification (the indemnifying
person) of a commencement of any
indemnifiable action or claim promptly after
such indemnified person becomes aware of
such commencement and shall consult in
good faith with the indemnifying person as to
the conduct of the defense of such action or
claim, which defense shall be reasonable
under the circumstances. No indemnified
person shall compromise or settle any action
or claim without the consent of the
indemnifying person.
20. RESIGNATION AND
REMOVAL OF DEPOSITARY;
APPOINTMENT OF SUCCESSOR
DEPOSITARY OR CUSTODIAN. The
Depositary may at any time resign as
Depositary hereunder by written notice of its
election to do so delivered to the Company,
such resignation to take effect upon the
appointment of a successor depositary and
its acceptance of such appointment as
hereinafter provided. The Depositary may
at any time be removed by the Company by
written notice of such removal, effective
upon the appointment of a successor
depositary and its acceptance of such
appointment as hereinafter provided.
If upon such resignation or
removal the Company, in its sole discretion,
elects not to appoint a successor depositary,
then the Depositary or the Company may
terminate the Deposit Agreement as
provided in Section 6.02 of the Deposit
Agreement. If upon such resignation or
removal the Company, in its sole discretion,
elects to appoint a successor depositary,
then the Deposit Agreement shall not be
terminated. Any successor depositary shall
be a bank or trust company having an office
in the Borough of Manhattan, The City of
New York. Every successor depositary
shall execute and deliver to its predecessor
and to the Company an instrument in writing
accepting its appointment hereunder, and
thereupon such successor depositary,
without any further act or deed, shall
become fully vested with all the rights,
powers, duties and obligations of its
predecessor; but such predecessor,
nevertheless, upon payment of all sums due
it and on the written request of the Company
shall execute and deliver an instrument
transferring to such successor all rights and
powers of such predecessor hereunder,
shall duly assign, transfer and deliver all
right, title and interest in the Deposited
Securities to such successor, and shall
deliver to such successor a list of the
Owners of all outstanding Receipts. Any
such successor depositary shall promptly
mail notice of its appointment to the Owners.
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 but the
Company shall have the absolute right to
remove the Depositary in the event of any
such merger or consolidation.
With the approval of the
Company, whenever the Depositary in its
discretion determines that it is in the best
interests of the Owners to do so, it may
appoint an additional custodian or custodians
or may remove a Custodian and appoint a
substitute custodian or custodians.
21. 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 Depositary and the
Company 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), or which shall
otherwise prejudice any substantial existing
right of Owners, shall, however, not become
effective as to outstanding Receipts until the
expiration of 30 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.
22. TERMINATION OF
DEPOSIT AGREEMENT. The Depositary
will at any time at the direction of the
Company terminate the Deposit Agreement
by mailing notice of such termination to the
Owners of all Receipts then outstanding at
least 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 if at any
time 90 days shall have expired after the
Depositary shall have delivered to the
Company a written notice of its election to
resign and a successor depositary shall not
have been appointed and accepted its
appointment as provided in Section 5.04 of
the Deposit Agreement. If any Receipts
shall remain outstanding after the date of
termination, the Depositary thereafter shall
discontinue the registration of transfers of
Receipts, shall suspend the distribution of
dividends to the Owners thereof, shall not
accept deposits of Shares (and shall instruct
each Custodian to act accordingly), 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 property and rights and
convert Deposited Securities into cash as
provided in the Deposit Agreement, and
shall continue to deliver Deposited
Securities, together with any dividends or
other distributions received with respect
thereto and the net proceeds of the sale of
any rights or other property, in exchange for
Receipts surrendered to the Depositary
(after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt,
any expenses for the account of the Owner
of such Receipt in accordance with the
terms and conditions of the Deposit
Agreement, and any applicable taxes or
governmental charges). At any time after
the expiration of one year from the date of
termination, the Depositary may sell the
Deposited Securities then held under the
Deposit Agreement and may thereunder
hold uninvested the net proceeds of any
such sale, together with any other cash then
held by it thereunder, unsegregated and
without liability for interest, for the pro rata
benefit of the Owners of Receipts which
have not theretofore been surrendered, such
Owners thereupon becoming general
creditors of the Depositary with respect to
such proceeds. After making such sale, the
Depositary shall be discharged from all
obligations under the Deposit Agreement,
except to account for such net proceeds
and other cash (after deducting, in each
case, the fee of the Depositary for the
surrender of a Receipt, any expenses for
the account of the Owner of such Receipt in
accordance with the terms and conditions of
the Deposit Agreement, and any applicable
taxes or governmental charges) and except
for its obligations to the Company with
respect to indemnification. 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.
23. COMPLIANCE WITH
UNITED STATES SECURITIES LAWS.
Notwithstanding any provisions in this
Receipt or the Deposit Agreement to the
contrary, the Company and the Depositary
have each agreed that neither of them will
exercise any rights either of them may have
under the Deposit Agreement or the Receipt
to prevent the withdrawal or delivery of
Deposited Securities in a manner which
would violate the United States securities
laws, including, but not limited to Section I
A(1) of the General Instructions to the Form
F6 Registration Statement, as amended
from time to time, under the Securities Act
of 1933.
(ASSIGNMENT AND TRANSFER
SIGNATURE LINES)
NOTE: The signature to any endorsement
hereon must correspond with the name as
written upon the face of this Receipt in
every particular, without alteration or
enlargement or any change whatever.
If the endorsement be
executed by an attorney, executor,
administrator, trustee or guardian, the
Person executing the endorsement must
give his full title in such capacity and proper
evidence of authority to act in such
capacity, if not on file with the Depositary,
must be forwarded with this Receipt.
All endorsements or
assignments of Receipts must be
guaranteed by an eligible guarantor
institution (including, but not limited to, a
New York Stock Exchange member firm or
member of the Clearing House of the
American Stock Exchange Clearing
Corporation or by a bank or trust company
having an office or correspondent in The
City of New York) meeting the requirements
of the Depositary, which requirements will
include membership or participation in
STAMP or such other signature guarantee
program as may be determined by the
Depositary in addition to, or in substitution
for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amend
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250_LAN01\59634.1
