Exhibit 1
EXECUTION COPY
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LIVING CELL TECHNOLOGIES LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
Deposit Agreement
Dated as of July 17, 2007
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TABLE OF CONTENTS
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ARTICLE 1. DEFINITIONS .............................................. 1
SECTION 1.01 AMERICAN DEPOSITARY SHARES ............................... 1
SECTION 1.02 CHESS .................................................... 2
SECTION 1.03 COMMISSION ............................................... 2
SECTION 1.04 COMPANY .................................................. 2
SECTION 1.05 CUSTODIAN ................................................ 2
SECTION 1.06 DELIVER; SURRENDER ....................................... 2
SECTION 1.07 DEPOSIT AGREEMENT ........................................ 3
SECTION 1.08 DEPOSITARY; CORPORATE TRUST OFFICE ....................... 3
SECTION 1.09 DEPOSITED SECURITIES ..................................... 3
SECTION 1.10 DOLLARS .................................................. 3
SECTION 1.11 DTC ...................................................... 3
SECTION 1.12 FOREIGN REGISTRAR ........................................ 3
SECTION 1.13 HOLDER ................................................... 3
SECTION 1.14 OWNER .................................................... 3
SECTION 1.15 RECEIPTS ................................................. 4
SECTION 1.16 REGISTRAR ................................................ 4
SECTION 1.17 RESTRICTED SECURITIES .................................... 4
SECTION 1.18 SECURITIES ACT OF 1933 ................................... 4
SECTION 1.19 SHARES ................................................... 4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER
AND SURRENDER OF AMERICAN DEPOSITARY SHARES .............................. 4
SECTION 2.01 FORM OF RECEIPTS; REGISTRATION AND
TRANSFERABILITY OF AMERICAN DEPOSITARY SHARES ............................ 5
SECTION 2.02 DEPOSIT OF SHARES ...................................... 5
SECTION 2.03 DELIVERY OF AMERICAN DEPOSITARY SHARES ................. 6
SECTION 2.04 REGISTRATION OF TRANSFER OF AMERICAN DEPOSITARY
SHARES; COMBINATION AND SPLIT-UP OF RECEIPTS; INTERCHANGE OF
CERTIFICATED AND UNCERTIFICATED AMERICAN DEPOSITARY SHARES ............... 7
SECTION 2.05 SURRENDER OF AMERICAN DEPOSITARY SHARES AND
WITHDRAWAL OF DEPOSITED SECURITIES ....................................... 8
SECTION 2.06 LIMITATIONS ON DELIVERY, TRANSFER AND SURRENDER OF
AMERICAN DEPOSITARY SHARES ............................................... 8
SECTION 2.07 LOST RECEIPTS, ETC ..................................... 9
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS ................................................................. 10
SECTION 2.09 PRE-RELEASE OF AMERICAN DEPOSITARY SHARES .............. 10
SECTION 2.10 MAINTENANCE OF RECORDS ................................. 10
SECTION 2.11 DTC DIRECT REGISTRATION SYSTEM AND PROFILE
MODIFICATION SYSTEM ...................................................... 10
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF
AMERICAN DEPOSITARY SHARES ................................................. 11
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION ...... 11
SECTION 3.02 LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES ....... 11
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES ........................ 12
SECTION 3.04 DISCLOSURE OF INTERESTS ................................ 12
ARTICLE 4. THE DEPOSITED SECURITIES ................................. 12
SECTION 4.01 CASH DISTRIBUTIONS ..................................... 12
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS ........ 13
SECTION 4.03 DISTRIBUTIONS IN SHARES ................................ 13
SECTION 4.04 RIGHTS ................................................. 14
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY ......................... 15
SECTION 4.06 FIXING OF RECORD DATE .................................. 16
SECTION 4.07 VOTING OF DEPOSITED SECURITIES ......................... 17
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SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES ................. 17
SECTION 4.09 REPORTS ................................................ 18
SECTION 4.10 LISTS OF OWNERS ........................................ 18
SECTION 4.11 WITHHOLDING ............................................ 18
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY ........... 18
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS
BY THE DEPOSITARY ........................................................ 18
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE COMPANY ................................................ 19
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN
AND THE COMPANY .......................................................... 20
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY .............. 21
SECTION 5.05 THE CUSTODIANS ......................................... 21
SECTION 5.06 NOTICES AND REPORTS .................................... 22
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC ......... 22
SECTION 5.08 INDEMNIFICATION ........................................ 23
SECTION 5.09 CHARGES OF DEPOSITARY .................................. 23
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS ...................... 24
SECTION 5.11 EXCLUSIVITY ............................................ 25
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS ................... 25
ARTICLE 6. AMENDMENT AND TERMINATION ................................ 25
SECTION 6.01 AMENDMENT .............................................. 25
SECTION 6.02 TERMINATION ............................................ 25
ARTICLE 7. MISCELLANEOUS ............................................ 26
SECTION 7.01 COUNTERPARTS ........................................... 26
SECTION 7.02 NO THIRD PARTY BENEFICIARIES ........................... 26
SECTION 7.03 SEVERABILITY ........................................... 27
SECTION 7.04 OWNERS AND HOLDERS AS PARTIES; BINDING EFFECT .......... 27
SECTION 7.05 NOTICES ................................................ 27
SECTION 7.06 SUBMISSION TO JURISDICTION; APPOINNTMENT OF AGENT
FOR SERVICE OF PROCESS; JURY TRIAL WAIVER ................................ 27
SECTION 7.07 WAIVER OF IMMUNITIES ................................... 298
SECTION 7.08 GOVERNING LAW .......................................... 29
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _____________, 2007, among LIVING CELL
TECHNOLOGIES LIMITED, incorporated under the laws of the Commonwealth of
Australia (herein called the Company), THE BANK OF NEW YORK, a New York banking
corporation (herein called the Depositary), and all Owners and holders from time
to time of American Depositary Shares issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities created
under this Deposit Agreement representing rights with respect to the Deposited
Securities. American Depositary Shares may be certificated securities evidenced
by Receipts or uncertificated securities. The form of Receipt annexed as Exhibit
A to this Deposit Agreement shall be the prospectus required under the
Securities Act of 1933 for sales of both certificated and uncertificated
American Depositary Shares. Except for those provisions of this Deposit
Agreement that refer specifically to Receipts, all the provisions of this
Deposit Agreement shall apply to both certificated and uncertificated American
Depositary Shares. Each American Depositary Share shall represent the number of
Shares specified in Exhibit A to this Deposit Agreement, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 with respect to which additional
American Depositary Shares are not delivered, and thereafter American Depositary
Shares shall represent the amount of Shares or Deposited Securities specified in
such Sections.
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SECTION 1.02 CHESS
The term "CHESS" shall mean the Clearing House Electronic Subregister
System.
SECTION 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
SECTION 1.04 Company.
The term "Company" shall mean Living Cell Technologies Limited, organized
under the laws of the Commonwealth of Australia, and its successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the principal Melbourne, Victoria,
Australia office of Australia and New Zealand Banking Group Ltd, Hong Kong Bank
of Australia and National Australia Bank Limited, as agents of the Depositary
for the purposes of this Deposit Agreement, and any other firm or corporation
which may hereafter be appointed by the Depositary pursuant to the terms of
Section 5.05, as substitute or additional custodian or custodians hereunder, as
the context shall require and shall also mean all of them collectively.
SECTION 1.06 Deliver; Surrender.
(a) The term "deliver", or its noun form, when used with respect to Shares
or other Deposited Securities, shall mean (i) book-entry transfer of those
Shares or other Deposited Securities to an account maintained by CHESS or an
institution authorized under applicable law to effect transfers of such
securities designated by the person entitled to that delivery or (ii) physical
transfer of certificates evidencing those Shares or other Deposited Securities
registered in the name of, or duly endorsed or accompanied by proper instruments
of transfer to, the person entitled to that delivery.
(b) The term "deliver", or its noun form, when used with respect to
American Depositary Shares, shall mean (i) book-entry transfer of American
Depositary Shares to an account at DTC designated by the person entitled to such
delivery evidencing American Depositary Shares registered in the name requested
by that person (ii) registration of American Depositary Shares not evidenced by
a Receipt on the books of the Depositary in the name requested by the person
entitled to such delivery and mailing to that person of a statement confirming
that registration or (iii) if requested by the person entitled to such delivery,
delivery at the Corporate Trust Office of the Depositary to the person entitled
to such delivery of one or more Receipts.
(c) The term "surrender", when used with respect to American Depositary
Shares, shall mean (i) one or more book-entry transfers of American Depositary
Shares to the DTC account of the Depositary, (ii) delivery to the Depositary at
its Corporate Trust Office of an instruction to surrender American Depositary
Shares not evidenced by a Receipt or (iii) surrender to the Depositary at its
Corporate Trust Office of one or more Receipts evidencing American Depositary
Shares.
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SECTION 1.07 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.08 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder. The term "Corporate
Trust Office", when used with respect to the Depositary, shall mean the office
of the Depositary which at the date of this Deposit Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.09 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement, including
without limitation Shares that have not been successfully delivered upon
surrender of American Depositary Shares, and any and all other securities,
property and cash received by the Depositary or the Custodian in respect thereof
and at such time held under this Deposit Agreement, subject as to cash to the
provisions of Section 4.05.
SECTION 1.10 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.11 DTC.
The term "DTC" shall mean The Depository Trust Company or its successor.
SECTION 1.12 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other agent of the Company for the transfer and registration of
Shares, including without limitation any securities depository for the Shares.
SECTION 1.13 Holder.
The term "Holder" shall mean any person holding a Receipt or a security
entitlement or other interest in American Depositary Shares, whether for its own
account or for the account of another person, but that is not the Owner of that
Receipt or those American Depositary Shares.
SECTION 1.14 Owner.
The term "Owner" shall mean the person in whose name American Depositary
Shares are registered on the books of the Depositary maintained for such
purpose.
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SECTION 1.15 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing certificated American Depositary Shares, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.16 Registrar.
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, that is appointed by the
Depositary to register American Depositary Shares and transfers of American
Depositary Shares as herein provided.
SECTION 1.17 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or American Depositary
Shares representing Shares, that are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering, or that are subject to resale limitations under Regulation D under the
Securities Act of 1933 or both, or which are held by an officer, director (or
persons performing similar functions) or other affiliate of the Company, or that
would require registration under the Securities Act of 1933 in connection with
the offer and sale thereof in the United States, or that are subject to other
restrictions on sale or deposit under the laws of the United States or
Australia, or under a shareholder agreement or the articles of association or
similar document of the Company.
SECTION 1.18 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.19 Shares.
The term "Shares" shall mean ordinary shares of the Company, that are
validly issued and outstanding and fully paid, nonassessable and that were not
issued in violation of any pre-emptive or similar rights of the holders of
outstanding securities of the Company; provided, however, that, if there shall
occur any change in nominal value, a split-up or consolidation or any other
reclassification or, upon the occurrence of an event described in Section 4.08,
an exchange or conversion in respect of the Shares of the Company, the term
"Shares" shall thereafter also mean the successor securities resulting from such
change in nominal value, split-up or consolidation or such other
reclassification or such exchange or conversion.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES,
DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES
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SECTION 2.01 Form of Receipts; Registration and Transferability of American
Depositary Shares.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been (i) executed by the
Depositary by the manual signature of a duly authorized officer of the
Depositary or (ii) executed by the facsimile signature of a duly authorized
officer of the Depositary and countersigned by the manual signature of a duly
authorized signatory of the Depositary or a Registrar. The Depositary shall
maintain books on which (x) each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered
and (y) all American Depositary Shares delivered as hereinafter provided and all
registrations of transfer of American Depositary Shares shall be registered. A
Receipt bearing the facsimile signature of a person that was at any time a
proper officer of the Depositary shall, subject to the other provisions of this
paragraph, bind the Depositary, notwithstanding that such person was not a
proper officer of the Depositary on the date of issuance of that Receipt.
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 by the Depositary or the Company to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange or automated quotation system, including without limitation, the NASDAQ
National Market, upon which American Depositary Shares may be listed or quoted
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by
reason of the date of issuance of the underlying Deposited Securities or
otherwise.
American Depositary Shares evidenced by a Receipt, when properly
endorsed or accompanied by proper instruments of transfer, shall be transferable
as certificated registered securities under the laws of New York. American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Depositary
and the Company, notwithstanding any notice to the contrary, may treat the Owner
of American Depositary Shares as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under this Deposit Agreement to any
Holder of a Receipt unless such Holder is the Owner thereof.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instruments or instructions
for transfer, or endorsement, in form satisfactory to the Custodian, together
with all such certifications and payments as may be required by the Depositary
or the Custodian in accordance with the provisions of this Deposit Agreement,
and, if the Depositary requires, together with a written order directing the
Depositary
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to deliver to, or upon the written order of, the person or persons stated in
such order, the number of American Depositary Shares representing such deposit.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted by
any governmental body in 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 Company or the
Foreign Registrar, if applicable, are closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Custodian of any dividend, or
right to subscribe for additional Shares or to receive other property which any
person in whose name the Shares are or have been recorded may thereafter receive
upon or in respect of such deposited Shares, or in lieu thereof, such agreement
of indemnity or other agreement as shall be satisfactory to the Depositary.
At the request, risk and expense of any person proposing to deposit Shares
or evidence of rights to receive Shares, and for the account of such person, the
Depositary may receive Shares to be deposited, documents of title thereto or
evidence that irrevocable instruments have been given to cause the transfer of
Shares to the account of the Custodian, together with the other instruments and
payments herein specified, for the purpose of forwarding such documents of title
or such other instruments evidencing title as may be required under the
Company's articles of association or similar document or applicable law or
regulation and evidence to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of Shares to be deposited hereunder,
together with the other documents and payments specified above, if any, such
Custodian shall, as soon as transfer and recordation can be accomplished,
present such documents of title or other instruments evidencing title as may be
required under the Company's articles of association or similar document or
applicable law or regulation to the Company or the Foreign Registrar,
electronically or otherwise, if applicable, for transfer and recordation of the
Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
SECTION 2.03 Delivery of American Depositary Shares.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder, together with the other documents required as specified above, such
Custodian shall notify the Depositary of such deposit and the person or persons
to whom or upon whose written order American Depositary Shares are deliverable
in respect thereof and the number of American Depositary Shares to be so
delivered. Such notification shall be made by letter or, at the request, risk
and expense of the person making the deposit, by cable, telex or facsimile
transmission (and in addition, if the transfer books of the Company or the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence
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from the Company that any Deposited Securities have been recorded upon the books
of the Company or the Foreign Registrar, if applicable, in the name of the
Depositary or its nominee or such Custodian or its nominee). Upon receiving such
notice from such Custodian, or upon the receipt of Shares or evidence of the
right to receive Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall deliver, to or upon the order of
the person or persons entitled thereto, the number of American Depositary Shares
issuable in respect of that deposit, but only upon payment to the Depositary of
the fees and expenses of the Depositary for the delivery of such American
Depositary Shares as provided in Section 5.09, and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
SECTION 2.04 Registration of Transfer of American Depositary Shares; Combination
and Split-up of Receipts; Interchange of Certificated and
Uncertificated American Depositary Shares.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of American Depositary Shares on its
transfer books from time to time, upon (i) in the case of certificated American
Depositary Shares, surrender of the Receipt evidencing those American Depositary
Shares, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer or (ii) in the case of
uncertificated American Depositary Shares, receipt from the Owner of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10), and, in either case, duly stamped as may
be required by the laws of the State of New York and of the United States of
America. Thereupon the Depositary shall deliver those American Depositary Shares
to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary, upon surrender of a Receipt for the purpose of exchanging
for uncertificated American Depositary Shares, shall cancel that Receipt and
send the Owner a statement confirming that the Owner is the owner of the same
number of uncertificated American Depositary Shares that the surrendered Receipt
evidenced. The Depositary, upon receipt of a proper instruction (including, for
the avoidance of doubt, instructions through DRS and Profile as provided in
Section 2.10) from the Owner of uncertificated American Depositary Shares for
the purpose of exchanging for certificated American Depositary Shares, shall
execute and deliver to the Owner a Receipt evidencing the same number of
certificated American Depositary Shares.
The Depositary, may appoint one or more co-transfer agents for the purpose
of effecting registration of transfers of American Depositary Shares and
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable
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laws and other requirements by Owners or persons entitled to American Depositary
Shares and will be entitled to protection and indemnity to the same extent as
the Depositary.
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal of Deposited
Securities.
Upon surrender at the Corporate Trust Office of the Depositary of American
Depositary Shares for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of the fee of the Depositary for the
surrender of American Depositary Shares as provided in Section 5.09 and payment
of all taxes and governmental charges payable in connection with such surrender
and withdrawal of the Deposited Securities, and subject to the terms and
conditions of this Deposit Agreement, the Owner of those American Depositary
Shares shall be entitled to delivery, to him or as instructed, of the amount of
Deposited Securities at the time represented by those American Depositary
Shares. Such delivery shall be made, as hereinafter provided, without
unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank. The Depositary may require the surrendering Owner to execute
and deliver to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon the Depositary
shall direct the Custodian to deliver at the office of such Custodian, subject
to Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this
Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by the surrendered American
Depositary Shares, except that the Depositary may make delivery to such person
or persons at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by those
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering American
Depositary Shares, and for the account of such Owner, the Depositary shall
direct the Custodian to forward any cash or other property (other than rights)
comprising, and forward a certificate or certificates, if applicable, and other
proper documents of title for, the Deposited Securities represented by the
American Depositary Shares (evidenced by such Receipt, if applicable) to the
Depositary for delivery at the Corporate Trust Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Owner, by cable, telex or facsimile transmission.
SECTION 2.06 Limitations on Delivery, Transfer and Surrender of American
Depositary Shares.
As a condition precedent to the delivery, registration of transfer, or
surrender of any American Depositary Shares or split-up or combination of any
Receipt or withdrawal of any Deposited Securities, the Depositary, Custodian or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt or instruction for registration of transfer or
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surrender of American Depositary Shares not evidenced by a Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, may require (a) the
production of proof satisfactory to it as to the identity and genuineness of any
signature, (b) compliance with any laws or regulations, relating to depositary
receipts in general or to the withdrawal or sale of Deposited Securities, (c)
delivery of such certificates as the Company may from time to time specify in
writing to the Depositary to assure compliance with the Securities Act of 1933
and rules and regulations thereunder and (d) compliance with such reasonable
procedures, if any, as the Depositary may establish consistent with the
provisions of this Deposit Agreement, including, without limitation, this
Section 2.06.
The delivery of American Depositary Shares against deposit of Shares
generally or against deposit of particular Shares may be suspended, or the
transfer of American Depositary Shares in particular instances may be refused,
or the registration of transfer of outstanding American Depositary Shares
generally may be suspended, during any period when the transfer books of the
Depositary are closed, or if any such action is deemed necessary or advisable by
the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or for any other reason, subject
to the provisions of the following sentence. Notwithstanding anything to the
contrary in this Deposit Agreement, the surrender of outstanding American
Depositary Shares and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the Foreign Registrar, if applicable, or the
deposit of Shares in connection with voting at a shareholders' meeting, or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the American Depositary Shares or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any Shares which would
be required to be registered under the provisions of the Securities Act of 1933
for public offer and sale in the United States, unless a registration statement
is in effect as to such Shares for such offer and sale.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
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SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. Cancelled Receipts shall not be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose. The Depositary is
authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of American Depositary Shares.
Notwithstanding Section 2.03 hereof, the Depositary may deliver American
Depositary Shares prior to the receipt of Shares pursuant to Section 2.02 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver Shares
upon the surrender of American Depositary Shares that have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such American Depositary Shares have been
Pre-Released. The Depositary may receive American Depositary Shares in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation from the person to whom American
Depositary Shares or Shares are to be delivered, that such person, or its
customer, owns the Shares or American Depositary Shares to be remitted, as the
case may be, (b) at all times fully collateralized with cash or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of Shares represented by American Depositary Shares which are outstanding
at any time as a result of Pre-Release will not normally exceed thirty percent
(30%) of the Shares deposited hereunder; provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
The Depositary agrees to maintain records of all American Depositary
Shares surrendered and Deposited Securities withdrawn under Section 2.05,
substitute American Depositary Shares delivered under Section 2.07, and
cancelled or destroyed American Depositary Shares under Section 2.08, in keeping
with procedures ordinarily followed by stock transfer agents located in The City
of New York.
SECTION 2.11 DTC Direct Registration System and Profile Modification System
(a) Notwithstanding the provisions of Section 2.04, the parties
acknowledge that the Direct Registration System ("DRS") and Profile Modification
System ("Profile") shall apply to uncertificated American Depositary Shares upon
acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant
to which the Depositary may register the ownership of uncertificated American
Depositary Shares, which ownership shall be evidenced by periodic statements
issued by the Depositary to the Owners entitled thereto. Profile is a required
feature of DRS which allows a DTC participant, claiming to act on behalf of an
Owner of American Depositary Shares, to direct the Depositary to register a
transfer of those American Depositary
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Shares to DTC or its nominee and to deliver those American Depositary Shares to
the DTC account of that DTC participant without receipt by the Depositary of
prior authorization from the Owner to register such transfer.
(b) In connection with and in accordance with the arrangements and
procedures relating to DRS/Profile, the parties understand that the Depositary
will not verify, determine or otherwise ascertain that the DTC participant which
is claiming to be acting on behalf of an Owner in requesting a registration of
transfer and delivery as described in subsection (a) has the actual authority to
act on behalf of the Owner (notwithstanding any requirements under the Uniform
Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03
and 5.08 shall apply to the matters arising from the use of the DRS. The parties
agree that the Depositary's reliance on and compliance with instructions
received by the Depositary through the DRS/Profile System and in accordance with
this Deposit Agreement shall not constitute negligence or bad faith on the part
of the Depositary.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Holder may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, evidence of the
number of Shares beneficially owned or any other matters necessary or
appropriate to evidence compliance with the Corporations Law of Australia, the
Foreign Acquisitions and Takeovers Xxx 0000, the Constitution of the Company and
exchange control regulations, as indicated to the Depositary by the Company, or
such information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably instruct in writing the Depositary to require.
The Depositary may, and at the reasonable written request of the Company shall,
withhold the delivery or registration of transfer of American Depositary Shares
or the distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties made. The Depositary shall provide the Company,
upon the Company's reasonable written request and at its expense, in a timely
manner, with copies of any information or other material which it receives
pursuant to this Section. Each Owner and Holder agrees to provide any
information requested by the Company or the Depositary pursuant to this Section
3.01.
SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any American Depositary Shares or
any Deposited Securities represented by any American Depositary Shares, such tax
or other governmental charge shall be
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payable by the Owner of such American Depositary Shares to the Depositary. The
Depositary may refuse to register any transfer of those American Depositary
Shares or any withdrawal of Deposited Securities represented by those American
Depositary Shares until such payment is made, and may withhold any dividends or
other distributions, or may sell for the account of the Owner thereof any part
or all of the Deposited Securities represented by those American Depositary
Shares, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge and the Owner
of such American Depositary Shares shall remain liable for any deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and proper evidence of
title therefor, if applicable, are validly issued, fully paid, nonassessable and
free of any pre-emptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that the deposit of such Shares and the sale of
American Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and delivery of American Depositary Shares.
SECTION 3.04 Disclosure of Interests.
The Company may from time to time request Owners to provide information as
to the capacity in which such Owners own or owned American Depositary Shares and
regarding the identity of any other persons then or previously interested in
such American Depositary Shares and the nature of such interest. Each Owner
agrees to provide any information requested by the Company or the Depositary
pursuant to this Section 3.04. The Depositary agrees to comply with reasonable
written instructions received from the Company requesting that the Depositary
forward any such requests to the Owners and to forward to the Company any such
responses to such requests received by the Depositary. To the extent that
provisions of or governing any Deposited Securities or the rules or regulations
of any governmental authority or securities exchange or automated quotation
system may require the disclosure of beneficial or other ownership of Deposited
Securities, other Shares and other securities to the Company or other persons
and may provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, the Depositary shall use its reasonable
efforts to comply with Company's instructions in respect of any such enforcement
or limitation.
ARTICLE 4.
THE DEPOSITED SECURITIES
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
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Section 4.05, convert such dividend or distribution into Dollars and shall
distribute the amount thus received (net of the fees and expenses of the
Depositary as provided in Section 5.09) to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Company or the Depositary shall be required to withhold and does
withhold from such cash dividend or such other cash distribution an amount on
account of taxes or other governmental charges, the amount distributed to the
Owner of the American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest whole cent
and so distributed to Owners entitled thereto. The Company or its agent will
remit to the appropriate governmental agency in Australia all amounts withheld
and owing to such agency. The Depositary will forward to the Company or its
agent such information from its records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
agencies, and the Depositary or the Company or its agent may file any such
reports necessary to obtain benefits under the applicable tax treaties for the
Owners.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received by it to be distributed to the Owners entitled thereto, after
deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or holders) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it may deem equitable and practicable
for the purpose of effecting such distribution, including, but not limited to,
the public or private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the fees and
expenses of the Depositary as provided in Section 5.09) shall be distributed by
the Depositary to the Owners entitled thereto, all in the manner and subject to
the conditions described in Section 4.01. The Depositary may sell, by public or
private sale, an amount of securities or other property it would otherwise
distribute under this Section 4.02 that is sufficient to pay it fees and
expenses in respect of that distribution.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may deliver to the Owners
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, an aggregate
number of American Depositary Shares representing the amount
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of Shares received as such dividend or free distribution, subject to the terms
and conditions of the Deposit Agreement with respect to the deposit of Shares
and after deduction or upon issuance of American Depositary Shares, including
the withholding of any tax or other governmental charge as provided in Section
4.11 and the payment of the fees and expenses of the Depositary as provided in
Section 5.09 (and the Depositary may sell, by public or private sale, an amount
of the Shares received sufficient to pay its fees and expenses in respect of
that distribution). The Depositary may withhold any such delivery of American
Depositary Shares if it has not received satisfactory assurances from the
Company that such distribution does not require registration under the
Securities Act of 1933. In lieu of delivering fractional American Depositary
Shares in any such case, the Depositary shall sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions described in Section 4.01. If
additional American Depositary Shares are not so delivered, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04 Rights.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its discretion that
it is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner upon
written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and 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
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Shares, and the Company shall cause the Shares so purchased to be delivered to
the Depositary on behalf of such Owner. As agent for such Owner, the Depositary
will cause the Shares so purchased to be deposited pursuant to Section 2.02 of
this Deposit Agreement, and shall, pursuant to Section 2.03 of this Deposit
Agreement, deliver American Depositary Shares to such Owner. In the case of a
distribution pursuant to the second paragraph of this Section, such Receipts
shall be legended in accordance with applicable U. S. laws, and shall be subject
to the appropriate restrictions on sale, deposit, cancellation, and transfer
under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 and all taxes and governmental charges payable in connection with
such rights and subject to the terms and conditions of this Deposit Agreement)
for the account of such Owners otherwise entitled to such rights, warrants or
other instruments, upon an averaged or other practical basis without regard to
any distinctions among such Owners because of exchange restrictions or the date
of delivery of any American Depositary Shares or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement under the Securities Act of 1933 with respect to such
rights or underlying securities or to endeavor to have such a registration
statement declared effective. If an Owner requests the distribution of warrants
or other instruments, notwithstanding that there has been no such registration
under the Securities Act of 1933, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted by sale or
in any other manner that it may determine such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
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distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any American Depositary Shares or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it 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, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting or (iii) responsible for any fee or charge assessed
by the Depositary pursuant to this Deposit Agreement, or (b) on or after which
each American Depositary Share will represent the changed number of Shares.
Subject to the provisions of Sections 4.01 through 4.05 and to the other terms
and conditions of this Deposit Agreement, the Owners on such record date shall
be entitled, as the case may be, to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting instructions and
to act in respect of any other such matter.
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SECTION 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the 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 as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of Australian law and of the articles of association or
similar document of the Company, 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 on such record date, received on or before
the date established by the 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 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 cutoff date to ensure that the Depositary will vote the
Shares or Deposited Securities in accordance with the provisions set forth in
the preceding paragraph.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
if the Company will request the Depositary to act under this Section 4.07, the
Company shall give the Depositary notice of any such meeting and details
concerning the matters to be voted upon not less than 30 days prior to the
meeting date.
SECTION 4.08 Changes Affecting Deposited Securities.
Upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, or upon the redemption or
cancellation by the Company of the Deposited Securities, any securities, cash or
property which shall be received by the Depositary or a Custodian in exchange
for, in conversion of, in lieu of or in respect of Deposited Securities, shall
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 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.
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Immediately upon the occurrence of any such split-up, consolidation or any
other reclassification covered by this Section 4.08 in respect of Deposited
Securities, the Company shall notify the Depositary in writing of such
occurrence and may instruct the Depositary to give notice thereof, at the
Company's expense, to Owners in accordance with Section 5.06 of the Deposit
Agreement.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request by the Company, send to the Owners
copies of such reports furnished by the Company pursuant to Section 5.06.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the expense
of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names American Depositary Shares are registered on the books of the Depositary,
any non objecting holders lists which can be obtained by the Depositary from a
third party on the Company's behalf and at the Company's expense and other
reports requested by the Company, as practicable.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of American Depositary Shares and transfers of American Depositary
Shares which at all
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reasonable times shall be open for inspection by the Owners, provided that such
inspection shall not be for the purpose of communicating with Owners in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the American Depositary Shares.
The Depositary may close the transfer books, at any time or from time to
time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If any American Depositary Shares are listed on one or more stock
exchanges or automated quotation systems in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such American Depositary Shares in accordance with any requirements
of such exchange or exchanges or systems.
The Company shall have the right, at all reasonable times, to inspect
transfer and registration records of the Depositary, the Registrar and any
co-transfer agents or co-registrars and to require such parties to supply copies
of such portions of their records relating thereto as the Company may reasonably
request.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or Holder (i) if by reason of any provision of any present or
future law or regulation of the United States, Australia or any other country,
or of any governmental or regulatory authority or stock exchange or automated
quotation system, or by reason of any provision, present or future, of the
articles of association or similar document of the Company, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company (or any of their respective directors, officers, employees, agents or
affiliates) shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement or the Deposited Securities it is
provided shall be done or performed, (ii) by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, (iii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement, (iv) for the inability of any
Owner or holder to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Owners or holders,
or (v) for any special, consequential or punitive damages for any breach of the
terms of this Deposit Agreement. Where, by the terms of a distribution pursuant
to Section 4.01, 4.02, or 4.03, or an offering or distribution pursuant to
Section 4.04, or for any other reason, such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
-19-
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company, its directors, officers, employees, agents and affiliates
assume no obligation nor shall any of them be subject to any liability under
this Deposit Agreement to any Owner or Holder, except that the Company agrees to
perform its obligations specifically set forth in this Deposit Agreement without
negligence or bad faith.
The Depositary, its directors, officers, employees, agents and affiliates
assume no obligation nor shall any of them be subject to any liability under
this Deposit Agreement to any Owner or Holder (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that the Depositary agrees to perform its obligations specifically set
forth in this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the American
Depositary Shares on behalf of any Owner or Holder or any other person.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be liable for the acts or omissions made by any
securities depository, clearing agency or settlement system in Australia in
connection with or arising out of book-entry settlement of Deposited Securities
or otherwise.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
-20-
SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days prior
written notice of such removal, to become effective upon the later of (i) the
120th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. The Depositary in its
discretion may appoint a substitute or additional custodian or custodians, each
of which shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to the Depositary, forthwith upon its appointment, an acceptance
of such appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder
-21-
of such successor depositary and the appointment of such successor depositary
shall in no way impair the authority of each Custodian hereunder; but the
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority as
agent hereunder of such successor depositary.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the prompt transmittal by the Company to the
Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Company to holders of
its Shares. If requested in writing by the Company, the Depositary will arrange
for the mailing, at the Company's expense, of copies of such notices, reports
and communications to all Owners. The Company will timely provide the Depositary
with the quantity of such notices, reports, and communications, as requested by
the Depositary from time to time, in order for the Depositary to effect such
mailings.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
If the Company or any affiliate of the Company determines to make any
issuance or distribution of (1) additional Shares, (2) rights to subscribe for
Shares, (3) securities convertible into or exchangeable for Shares, or (4)
rights to subscribe for such securities (each a "Distribution"), the Company
shall notify the Depositary in writing in English as promptly as practicable and
in any event before the Distribution starts and, if requested in writing by the
Depositary, the Company shall promptly furnish to the Depositary a written
opinion from U.S. counsel for the Company that is reasonably satisfactory to the
Depositary, stating whether or not the Distribution requires, or, if made in the
United States, would require, registration under the Securities Act of 1933. If,
in the opinion of that counsel, the Distribution requires, or, if made in the
United States, would require, registration under the Securities Act of 1933,
that counsel shall furnish to the Depositary a written opinion as to whether or
not there is a registration statement under the Securities Act of 1933 in effect
that will cover that Distribution.
Nothing in this Section 5.07 or elsewhere in this Deposit Agreement shall
create any obligation on the part of the Company or the Depositary to file a
registration statement under the Securities Act of 1933 in respect of any such
securities or rights.
The Company agrees with the Depositary that neither the Company nor any
company controlled by, controlling or under common control with the Company will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Company or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933 or the
Company delivers to the Depositary an opinion of United States
-22-
counsel, satisfactory to the Depositary, to the effect that, upon deposit, those
Shares will be eligible for public resale in the United States without further
registration under the Securities Act of 1933 .
The Depositary will comply with the written instructions of the Company
not to accept knowingly for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may be specified in
such instructions in order to facilitate the Company's compliance with the
securities laws of the United States.
SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors, officers,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to any
fees and expenses incurred in seeking, enforcing or collecting such indemnity
and the reasonable fees and expenses of counsel) which may arise out of or in
connection with (a) any registration with the Commission of American Depositary
Shares or Deposited Securities or the offer or sale thereof in the United States
or (b) acts performed or omitted, pursuant to the provisions of or in connection
with this Deposit Agreement and of the Receipts, as the same may be amended,
modified or supplemented from time to time, (i) by either the Depositary or a
Custodian or their respective directors, officers, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of any of them, or (ii) by the Company or any of its directors,
officers, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors, officers,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, officers, employees, agents and
affiliates due to their negligence or bad faith.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights under this Section 5.08) and shall consult in good
faith with the indemnifying person as to the conduct of the defense of such
action or claim, which shall be reasonable in the circumstances. No indemnified
person shall compromise or settle any action or claim without the consent of the
indemnifying person.
The obligations set forth in this Section 5.08 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees and out-of-pocket expenses of the
Depositary and those of any Registrar in accordance with agreements in writing
entered into between the Depositary and the Company from time to time.
-23-
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering American Depositary Shares or to
whom American Depositary Shares are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant to Section
4.03), or by Owners, as applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to or from
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the delivery of American Depositary
Shares pursuant to Section 2.03, 4.03 or 4.04 and the surrender of American
Depositary Shares pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less
per American Depositary Share (or portion thereof) for any cash distribution
made pursuant to this Deposit Agreement, including, but not limited to Sections
4.01 through 4.04 hereof, (7) a fee for the distribution of securities pursuant
to Section 4.02, such fee being in an amount equal to the fee for the execution
and delivery of American Depositary Shares referred to above which would have
been charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares) but which
securities are instead distributed by the Depositary to Owners, (8) in addition
to any fee charged under clause 6, a fee of $.02 or less per American Depositary
Share (or portion thereof) for depositary services, which will accrue on the
last day of each calendar year and which will be payable as provided in clause 9
below and (9) any other charges payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.06 and shall be payable at the sole
discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in any
class of securities of the Company and its affiliates and in American Depositary
Shares.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records, bills
and other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Company
requests that such papers be retained for a longer period or turned over to the
Company or to a successor depositary.
-24-
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance of
American or global depositary shares or receipts so long as The Bank of New York
is acting as Depositary hereunder, other than a successor depositary as provided
in Section 5.04 hereof.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who beneficially own Restricted Securities and the Company shall update that
list on a regular basis. The Company agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities are ineligible for
deposit hereunder. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance thereon.
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or holders in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
American Depositary Shares until the expiration of thirty days after notice of
such amendment shall have been given to the Owners of outstanding American
Depositary Shares. Every Owner and holder, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold such American Depositary
Shares or any interest therein, to consent and agree to such amendment and to be
bound by the Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Owner to surrender American Depositary Shares
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law.
SECTION 6.02 Termination.
The Company may at any time terminate this Deposit Agreement by
instructing the Depositary to mail a notice of termination to the Owners of all
American Depositary Shares then outstanding at least 60 days prior to the
termination date included in such notice. The Depositary may likewise terminate
this Deposit Agreement if at any time 30 days shall have expired after the
Depositary delivered to the Company a written resignation notice and if a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04; in such case the Depositary shall mail a notice of
termination to the Owners of all American Depositary Shares then outstanding at
least 30 days prior to the termination date. On and after the date of
termination, the Owner of American Depositary Shares will, upon (a) surrender of
such American Depositary Shares, (b) payment of the fee of the Depositary for
the surrender of American Depositary Shares referred to in Section 2.05, and (c)
payment of any
-25-
applicable taxes or governmental charges, be entitled to delivery, to him or
upon his order, of the amount of Deposited Securities represented by those
American Depositary Shares. If any American Depositary Shares shall remain
outstanding after the date of termination, the Depositary thereafter shall
discontinue the registration of transfers of American Depositary Shares, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, upon surrender of American Depositary Shares (after deducting,
in each case, the fee of the Depositary for the surrender of American Depositary
Shares, any expenses for the account of the Owner of such American Depositary
Shares in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges).
At any time after the expiration of 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 under this Deposit Agreement,
unsegregated and without liability for interest, for the pro rata benefit of the
Owners of American Depositary Shares that have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of American Depositary Shares, any expenses for the
account of the Owner of such American Depositary Shares in accordance with the
terms and conditions of this Deposit Agreement, and any applicable taxes or
governmental charges) and except for its obligations to the Company under
Section 5.08 hereof. Upon the termination of this Deposit Agreement, the Company
shall be discharged from all obligations under this Deposit Agreement except for
its obligations to the Depositary under Sections 5.08 and 5.09.
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Holder 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.
-26-
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 Owners and Holders as Parties; Binding Effect.
The Owners and Holders from time to time shall be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of American Depositary Shares or any interest
therein.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to Living Cell
Technologies Limited, P. X. Xxx 0000, Xxxxxx, Xxxxxxxx, 0000 Xxxxxxxxx or any
other place to which the Company may have transferred its principal office with
notice to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to The Bank of
New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office with notice to the Company.
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for American Depositary Shares of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service of
Process; Jury Trial Waiver.
The Company hereby (i) irrevocably designates and appoints Xxxxxxx and
Associates, 000 Xxxxxxx Xxx., Xxxxx 000, X.X. Xxx 000, Xxxxxx, XX 00000, as the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or
-27-
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 Company in any such suit or proceeding. The Company agrees to deliver,
upon the execution and delivery of this Deposit Agreement, a written acceptance
by such agent of its appointment as such agent. The Company further agrees to
take any and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or this Agreement remains in force. In the event the Company
fails to continue such designation and appointment in full force and effect, the
Company hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed.
EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT,
EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED
SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING
EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
SECTION 7.07 Waiver of Immunities.
To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter become entitled to, or have attributed to it,
any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, the Company, to the
fullest extent permitted by law, hereby irrevocably and unconditionally waives,
and agrees not to plead or claim, any such immunity and consents to such relief
and enforcement.
-28-
SECTION 7.08 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of the Commonwealth of Australia.
-29-
IN WITNESS WHEREOF, LIVING CELL TECHNOLOGIES LIMITED 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 and Holders shall become parties hereto upon
acceptance by them of American Depositary Shares or any interest therein.
LIVING CELL TECHNOLOGIES LIMITED
By: /s/ Xxxx Xxx
-----------------------------------------
Name: Xxxx Xxx
Title: Chief Executive Officer
THE BANK OF NEW YORK,
as Depositary
By:
-----------------------------------------
Name: U. Xxxxxxxx Xxxxxxxxx
Title: Managing Director
-30-
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents ten (10)
deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
WITHOUT PAR VALUE OF
LIVING CELL TECHNOLOGIES LIMITED
(INCORPORATED UNDER THE LAWS OF THE COMMONWEALTH OF AUSTRALIA)
The Bank of New York, as depositary (hereinafter called the
"Depositary"), hereby certifies that___________
____________________________________________, or registered assigns IS THE OWNER
OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of Living Cell
Technologies Limited, incorporated under the laws of the Commonwealth of
Australia (herein called the "Company"). At the date hereof, each American
Depositary Share represents ten (10) Shares deposited or subject to deposit
under the Deposit Agreement (as such term is hereinafter defined) at the
principal Melbourne, Victoria, Australia offices of Australia and New Zealand
Banking Group Ltd, Hong Kong of Australia or 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
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 July 17, 2007 (herein called the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
holders from time to time of American Depositary Shares issued thereunder, each
of whom by accepting American Depositary Shares agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and holders and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property, and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms 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 American
Depositary Shares, and upon payment of the fee of the Depositary provided in
this Receipt, and subject to the terms and conditions of the Deposit Agreement,
the Owner of those American Depositary Shares is entitled to delivery, to him or
as instructed, of the amount of Deposited Securities at the time represented by
those American Depositary Shares. Such delivery will be made at the option of
the Owner hereof, either at the office of the Custodian or at the Corporate
Trust Office of the Depositary or at such other place as may be designated by
such Owner, provided that the forwarding of certificates for Shares or other
Deposited Securities for such delivery at the Corporate Trust Office of the
Depositary shall be at the risk and expense of the Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
Transfers of American Depositary Shares may be registered on the books of
the Depositary upon (i) in the case of certificated American Depositary Shares,
surrender of the Receipt evidencing those American Depositary Shares, by the
Owner in person or by a duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer or (ii) in the case of
uncertificated American Depositary Shares, receipt from the Owner of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10), and, in either case, duly stamped as may
be required by the laws of the State of New York and of the United States of
America and upon payment of funds for any applicable transfer taxes and the
expenses of the Depositary and upon compliance with such regulations, if any, as
the Depositary may establish for such purpose. This Receipt may be split into
other such Receipts, or may be combined with other such Receipts into one
Receipt, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts
2
surrendered. The Depositary, upon surrender of a Receipt for the purpose of
exchanging for uncertificated American Depositary Shares, shall cancel that
Receipt and send the Owner a statement confirming that the Owner is the Owner of
the same number of uncertificated American Depositary Shares that the
surrendered Receipt evidenced. The Depositary, upon receipt of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10 of the Deposit Agreement) from the Owner of
uncertificated American Depositary Shares for the purpose of exchanging for
certificated American Depositary Shares, shall execute and deliver to the Owner
a Receipt evidencing the same number of certificated American Depositary Shares.
As a condition precedent to the delivery, registration of transfer, or surrender
of any American Depositary Shares or split-up or combination of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presenter
of the Receipt or instruction for registration of transfer or surrender of
American Depositary Shares not evidenced by a Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as provided in the Deposit Agreement, may require (a) the
production of proof satisfactory to it as to the identity and genuineness of any
signature, (b) compliance with any laws or regulations, relating to depositary
receipts in general or to the withdrawal or sale of Deposited Securities, (c)
delivery of such certificates as the Company may from time to time specify in
writing to the Depositary to assure compliance with the Securities Act of 1933
and the rules and regulations thereunder and (d) compliance with such reasonable
procedures, if any, as the Depositary may establish consistent with the
provisions of the Deposit Agreement.
The delivery of American Depositary Shares against deposit of Shares
generally or against deposit of particular Shares may be suspended, or the
transfer of American Depositary Shares in particular instances may be refused,
or the registration of transfer of outstanding American Depositary Shares
generally may be suspended, during any period when the transfer books of the
Depositary are closed, or if any such action is deemed necessary or advisable by
the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement, or for any other reason, subject
to the provisions of the following sentence. Notwithstanding anything to the
contrary in the Deposit Agreement or this Receipt, the surrender of outstanding
American Depositary Shares and withdrawal of Deposited Securities may not be
suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the Foreign Registrar, if applicable,
or the deposit of Shares in connection with voting at a shareholders' meeting,
or the payment of dividends, (ii) the payment of fees, taxes and similar
charges, and (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the American Depositary Shares or to the withdrawal of
the Deposited Securities. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under the Deposit Agreement any Shares
which would be required to be registered under the provisions of the Securities
Act of 1933 for public offer and sale in the United States, unless a
registration statement is in effect as to such Shares for such offer and sale.
3
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any American Depositary Shares or any Deposited Securities represented by any
American Depositary Shares, such tax or other governmental charge shall be
payable by the Owner to the Depositary. The Depositary may refuse to register
any transfer of those American Depositary Shares or any withdrawal of Deposited
Securities represented by those American Depositary Shares until such payment is
made, and may withhold any dividends or other distributions, or may sell for the
account of the Owner any part or all of the Deposited Securities represented by
those American Depositary Shares, and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge and the Owner shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant, that such Shares and proper evidence of title
therefor, if applicable, are validly issued, fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that the deposit of such Shares and the sale of
American Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and delivery of American Depositary Shares.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or holder may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, evidence of the
number of Shares beneficially owned or any other matters necessary or
appropriate to evidence compliance with the Corporations Law of Australia, the
Foreign Acquisitions and Takeovers Xxx 0000, the Constitution of the Company and
exchange control regulations, as indicated to the Depositary by the Company, or
such information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Company may reasonably instruct in writing the Depositary to require.
The Depositary may, and at the reasonable written request of the Company shall,
withhold the delivery or registration of transfer of any American Depositary
Shares or the distribution of any dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of any Deposited Securities until such
proof or other information is filed or such certificates are executed or such
representations and warranties made. No Share shall be accepted for deposit
unless accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by any governmental body in the Commonwealth of
Australia, which is then performing the function of the regulation of currency
exchange. Each Owner and Holder agrees to provide any information requested by
the Company or the Depositary pursuant to this Article 6.
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7. CHARGES OF DEPOSITARY.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering American Depositary Shares or to
whom American Depositary Shares are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant to Section 4.03
of the Deposit Agreement), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the delivery of American
Depositary Shares pursuant to Section 2.03, 4.03 or 4.04 of the Deposit
Agreement and the surrender of American Depositary Shares pursuant to Section
2.05 or 6.02 of the Deposit Agreement, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04
of the Deposit Agreement, (7) a fee for the distribution of securities pursuant
to Section 4.02 of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 7 treating all such securities as if
they were Shares) but which securities are instead distributed by the Depositary
to Owners, (8) in addition to any fee charged under clause 6, a fee of $.02 or
less per American Depositary Share (or portion thereof) for depositary services,
which will accrue on the last day of each calendar year and which will be
payable as provided in clause 9 below and (9) any other charges payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.06 of the
Deposit Agreement and shall be payable at the sole discretion of the Depositary
by billing such Owners for such charge or by deducting such charge from one or
more cash dividends or other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any class
of securities of the Company and its affiliates and in American Depositary
Shares.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may
deliver American Depositary Shares prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement (a "Pre-Release"). The Depositary may,
pursuant to Section 2.05 of the Deposit Agreement, deliver Shares upon the
surrender of American Depositary Shares that have been Pre-Released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such American Depositary Shares have been Pre-Released.
The Depositary may receive American Depositary Shares in lieu of Shares in
satisfaction of a
5
Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written
representation from the person to whom American Depositary Shares or Shares are
to be delivered, that such person, or its customer, owns the Shares or American
Depositary Shares to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares represented by
American Depositary Shares which are outstanding at any time as a result of
Pre-Release will not normally exceed thirty percent (30%) of the Shares
deposited under the Deposit Agreement; provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and Holder of
this Receipt by accepting or holding the same consents and agrees that when
properly endorsed or accompanied by proper instruments of transfer, shall be
transferable as certificated registered securities under the laws of New York.
American Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Company and
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
of American Depositary Shares as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under the Deposit Agreement to any
Holder of a Receipt unless such Holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company 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 will be available for inspection and copying
at either the public reference facilities maintained by the Commission located
at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000 or at the Company's website at
xxx.xxxxxxxxx.xxx, or at an electronic information delivery system at xxx.xxx.xx
6
The Depositary will make available for inspection by Owners at its
Corporate Trust Office any reports, notices and other communications, including
any proxy soliciting material, received from the Company which are both (a)
received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the
Company. The Depositary will also, upon written request by the Company, send to
Owners copies of such reports when furnished by the Company pursuant to the
Deposit Agreement.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of American Depositary Shares and transfers of American Depositary
Shares which at all reasonable times shall be open for inspection by the Owners,
provided that such inspection shall not be for the purpose of communicating with
Owners in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the American Depositary
Shares.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States Dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into dollars and will distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Article
7 hereof and Section 5.09 of the Deposit Agreement) to the Owners entitled
thereto; provided, however, that in the event that the Company or the Depositary
is required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes or other governmental charges, the amount distributed to the Owners of the
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly.
Subject to the provisions of Section 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will cause the securities or property received by it to be
distributed to the Owners entitled thereto, after deduction or upon payment of
any fees and expenses of the Depositary or any taxes or other governmental
charges, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of 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
7
thereto all in the manner and subject to the conditions described in Section
4.01 of the Deposit Agreement. The Depositary may sell, by public or private
sale, an amount of securities or other property it would otherwise distribute
under this Article that is sufficient to pay its fees and expenses in respect of
that distribution.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may deliver to the Owners entitled thereto, an aggregate
number of American Depositary Shares representing the amount of Shares received
as such dividend or free distribution, subject to the terms and conditions of
the Deposit Agreement with respect to the deposit of Shares and after deduction
or upon issuance of American Depositary Shares, including the withholding of any
tax or other governmental charge as provided in Section 4.11 of the Deposit
Agreement and the payment of the fees and expenses of the Depositary as provided
in Article 7 hereof and Section 5.09 of the Deposit Agreement (and the
Depositary may sell, by public or private sale, an amount of Shares received
sufficient to pay its fees and expenses in respect of that distribution). The
Depositary may withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act of 1933 or is exempt from registration
under the provisions of such Act. In lieu of delivering fractional American
Depositary Shares in any such case, the Depositary will sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01of the Deposit Agreement. If additional American Depositary Shares are not
so delivered, each American Depositary Share shall thenceforth also represent
the additional Shares distributed upon the Deposited Securities represented
thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
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
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its discretion that
it is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
8
In circumstances in which rights would otherwise not be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the American Depositary Shares of such Owner
under the Deposit Agreement, the Depositary will make such rights available to
such Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, deliver American Depositary Shares to such Owner. In the
case of a distribution pursuant to the second paragraph of this Article 13, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees and expenses of the Depositary as provided in
Section 5.09 of the Deposit Agreement and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of the Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any American Depositary Shares or
otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in the
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement under the Securities Act of 1933 with respect to such
rights or underlying securities or to endeavor to have such a registration
statement declared effective. If an Owner requests the distribution of warrants
or other instruments, notwithstanding that there has been no such registration
under the Securities Act of 1933, the Depositary shall not
9
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 entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any American Depositary Shares or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
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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 who shall be (i)
entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting or (iii) responsible for any fee or charge assessed
by the Depositary pursuant to the Deposit Agreement, or (b) on or after which
each American Depositary Share will represent the changed number of Shares,
subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners 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 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 or similar document 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 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 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 cutoff date to ensure that the Depositary will vote the
Shares or Deposited Securities in accordance with the provisions set forth in
the preceding paragraph.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
if the Company will request the Depositary to act under this Article, the
Company shall give the Depositary notice of any such meeting and details
concerning the matters to be voted upon not less than 30 days prior to the
meeting date.
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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 execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
Immediately upon the occurrence of any such split-up, consolidation or any
other reclassification covered by this Article 17 in respect of Deposited
Securities, the Company shall notify the Depositary in writing of such
occurrence and may instruct the Depositary to give notice thereof, at the
Company's expense, to Owners in accordance with Section 5.06 of the Deposit
Agreement.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or Holder, (i) if by reason of any provision of any present or
future law or regulation of the United States, Australia or any other country,
or of any governmental or regulatory authority or stock exchange or automated
quotation system, or by reason of any provision, present or future, of the
articles of association or similar document of the Company, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company (or any of their respective directors, officers, employees, agents or
affiliates) shall be prevented, delayed or forbidden from or be subject to any
civil or criminal penalty on account of doing or performing any act or thing
which by the terms of the Deposit Agreement or the Deposited Securities it is
provided shall be done or performed, (ii) by reason of any non-performance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of the Deposit Agreement it is provided shall or may be done or performed,
(iii) by reason of any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement, (iv) for the inability of any Owner or
Holder to benefit from any distribution, offering, right or other benefit which
is made available to holders of Deposited Securities but is not, under the terms
of the Deposit Agreement, made available to Owners or holders, or (v) for any
special, consequential or punitive damages for any breach of the terms of the
Deposit Agreement. Where, by the terms of a distribution pursuant to Section
4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.04 of the Deposit Agreement, such distribution or offering
may not be made available to Owners of Receipts, and the Depositary may not
dispose of such distribution or offering on behalf of such Owners and make
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the net proceeds available to such Owners, then the Depositary shall not make
such distribution or offering, and shall allow any rights, if applicable, to
lapse. Neither the Company nor the Depositary (nor any of their respective
directors, officers, employees, agents or affiliates) assume any obligation or
shall be subject to any liability under the Deposit Agreement to Owners or
Holders, except that they agree to perform their obligations specifically set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
shall not be subject to any liability with respect to the validity or worth of
the Deposited Securities. Neither the Depositary nor the Company (nor any of
their respective directors, officers, employees, agents or affiliates) shall be
under any obligation to appear in, prosecute or defend any action, suit, or
other proceeding in respect of any Deposited Securities or in respect of the
American Depositary Shares, on behalf of any Owner or Holder or any other
person. Neither the Depositary nor the Company (nor any of their respective
directors, officers, employees, agents or affiliates) shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or holder, or any other person believed by it in good faith to be competent to
give such advice or information. The Depositary shall not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities or
for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith. The Depositary
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in
connection with a matter arising wholly after the removal or resignation of the
Depositary, provided that in connection with the issue out of which such
potential liability arises, the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary. The Depositary shall not
be liable for the acts or omissions made by any securities depository, clearing
agency or settlement system in Australia in connection with or arising out of
book-entry settlement of Deposited Securities or otherwise. The Company agrees
to indemnify the Depositary, its directors, officers, employees, agents and
affiliates and any Custodian against, and hold each of them harmless from, any
liability or expense (including, but not limited to any fees and expenses
incurred in seeking, enforcing or collecting such indemnity and the reasonable
fees and expenses of counsel) which may arise out of or in connection with (a)
any registration with the Commission of American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or (b) acts
performed or omitted, pursuant to the provisions of or in connection with the
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, officers, employees, agents and affiliates, except
for any liability or expense arising out of the negligence or bad faith of
either of them, or (ii) by the Company or any of its directors, employees,
agents and affiliates. No disclaimer of liability under the Securities Act of
1933 is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 120 days prior written
notice of such removal, to become effective upon the
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later of (i) the 120th day after delivery of the notice to the Depositary and
(ii) the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary in its
discretion may appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or holders in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
American Depositary Shares until the expiration of thirty days after notice of
such amendment shall have been given to the Owners of outstanding American
Depositary Shares. Every Owner and holder of American Depositary Shares, at the
time any amendment so becomes effective, shall be deemed, by continuing to hold
such American Depositary Shares or any interest therein, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the Owner to surrender American
Depositary Shares and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Company may terminate the Deposit Agreement by instructing the
Depositary to mail notice of termination to the Owners of all American
Depositary Shares then outstanding at least 60 days prior to the termination
date included in such notice. The Depositary may likewise terminate the Deposit
Agreement, if at any time 30 days shall have expired after the Depositary
delivered to the Company a written resignation notice and if a successor
depositary shall not have been appointed and accepted its appointment as
provided in the Deposit Agreement; in such case the Depositary shall mail a
notice of termination to the Owners of all American Depositary Shares then
outstanding at least 30 days prior to the termination date. On and after the
date of termination, the Owner of American Depositary Shares will, upon (a)
surrender of such American Depositary Shares, (b) payment of the fee of the
Depositary for the surrender of American Depositary Shares referred to in
Section 2.05, and (c) payment of any applicable taxes or governmental charges,
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by those American Depositary Shares. If any American
Depositary Shares shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
American Depositary Shares, shall suspend the distribution of dividends to the
Owners thereof, shall not accept deposits of Shares, and shall not give any
further notices or perform any further acts under the Deposit Agreement, except
that the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, upon surrender of American Depositary Shares (after deducting, in
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each case, the fee of the Depositary for the surrender of American Depositary
Shares, any expenses for the account of the Owner of such American Depositary
Shares in accordance with the terms and conditions of the Deposit Agreement, and
any applicable taxes or governmental charges). At any time after the expiration
of four months from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold uninvested the net proceeds of any such sale, together with any other cash
then held by it thereunder, unsegregated and without liability for interest, for
the pro rata benefit of the Owners of American Depositary Shares that have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of American Depositary Shares,
any expenses for the account of the Owner of such American Depositary Shares in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges) and except for its obligations to the
Company under Section 5.08 of the Deposit Agreement. Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement except for its obligations to the Depositary with respect
to indemnification, charges, and expenses.
22. DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION SYSTEM
(a) Notwithstanding the provisions of Section 2.04 of the Deposit
Agreement, the parties acknowledge that the Direct Registration System ("DRS")
and Profile Modification System ("Profile") shall apply to uncertificated
American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the
system administered by DTC pursuant to which the Depositary may register the
ownership of uncertificated American Depositary Shares, which ownership shall be
evidenced by periodic statements issued by the Depositary to the Owners entitled
thereto. Profile is a required feature of DRS which allows a DTC participant,
claiming to act on behalf of an Owner of American Depositary Shares, to direct
the Depositary to register a transfer of those American Depositary Shares to DTC
or its nominee and to deliver those American Depositary Shares to the DTC
account of that DTC participant without receipt by the Depositary of prior
authorization from the Owner to register such transfer.
(b) In connection with and in accordance with the arrangements and
procedures relating to DRS/Profile, the parties understand that the Depositary
will not verify, determine or otherwise ascertain that the DTC participant which
is claiming to be acting on behalf of an Owner in requesting a registration of
transfer and delivery as described in subsection (a) has the actual authority to
act on behalf of the Owner (notwithstanding any requirements under the Uniform
Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03
and 5.08 of the Deposit Agreement shall apply to the matters arising from the
use of the DRS. The parties agree that the Depositary's reliance on and
compliance with instructions received by the Depositary through the DRS/Profile
System and in accordance with the Deposit Agreement shall not constitute
negligence or bad faith on the part of the Depositary.
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22. SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed Xxxxxxx and
Associates, 000 Xxxxxxx Xxx., Xxxxx 000, X.X. Xxx 000, Xxxxxx, XX 00000, as the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, (ii) consented and
submitted to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agreed
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding.
EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT,
EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED
SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING
EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
To the extent that the Company or any of its properties, assets or
revenues may have or hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement, the Company, to the fullest
extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
23. DISCLOSURE OF INTERESTS.
The Company may from time to time request Owners to provide information as
to the capacity in which such Owners own or owned American Depositary Shares and
regarding the identity of any other persons then or previously interested in
such American Depositary Shares and the nature of such interest. Each Owner
agrees to provide any information requested by the Company or the Depositary
pursuant to Section 3.04 of the Deposit Agreement. The Depositary agrees to
comply with reasonable written instructions received from the Company requesting
that the Depositary forward any such requests to the Owners and to forward to
the Company any such responses to such requests received by the Depositary. To
the extent that provisions of or
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governing any Deposited Securities or the rules or regulations of any
governmental authority or securities exchange or automated quotation system may
require the disclosure of beneficial or other ownership of Deposited Securities,
other Shares and other securities to the Company or other persons and may
provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, the Depositary shall use its reasonable
efforts to comply with Company's instructions in respect of any such enforcement
or limitation.
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