Effective July 29, 2008 the Companys
Name Changed To Oz Minerals Limited.
Exhibit A to Deposit Agreement
No.
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents five (5) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
WITHOUT PAR VALUE OF
OXIANA LIMITED (ABN 40 005 482
824)
(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 Oxiana Limited ,
incorporated under the laws of the
Commonwealth of Australia (herein called
the Issuer). At the date hereof, each
American Depositary Share represents five
Shares which are either deposited or subject
to deposit under the deposit agreement at the
principal Melbourne, Victoria, Australia
office of Australia and New Zealand Banking
Group Limited, Xxxxx 00, 000 Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx, 0000,
(herein called the Custodian). The
Depositarys Corporate Trust Office is
located at a different address than its
principal executive office. Its Corporate
Trust Office is located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 00000, and its principal
executive office is located at Xxx Xxxx
Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARYS CORPORATE
TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX,
X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is
one of an issue (herein called Receipts), all
issued and to be issued upon the terms and
conditions set forth in the deposit agreement,
dated as of _________________, 2005
(herein called the Deposit Agreement), by
and among the Issuer, the Depositary, and
all Owners and holders from time to time of
Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party
thereto and become bound by all the terms
and conditions thereof. The Deposit
Agreement sets forth the rights of Owners
and Beneficial Owners of the Receipts and
the rights and duties of the Depositary in
respect of the Shares deposited thereunder
and any and all other securities, property and
cash from time to time received in respect of
such Shares and held thereunder (such
Shares, securities, property, and cash are
herein called Deposited Securities). Copies
of the Deposit Agreement are on file at the
Depositarys Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face
and reverse of this Receipt are summaries
of certain provisions of the Deposit
Agreement and are qualified by and subject
to the detailed provisions of the Deposit
Agreement, to which reference is hereby
made. Capitalized terms not defined herein
shall have the meanings set forth in the
Deposit Agreement.
2. SURRENDER OF RECEIPTS
AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate
Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the
Depositary provided in this Receipt, and
subject to the terms and conditions of the
Deposit Agreement, the Owner hereof is
entitled to delivery, to him or upon his
order, of the Deposited Securities at the time
represented by the American Depositary
Shares for which this Receipt is issued.
Delivery of such Deposited Securities may
be made by (a) the electronic transfer of
Deposited Securities through the facilities
of CHESS or otherwise, or delivery of
documents of, or other instruments
evidencing, title as may be required under
the Issuers Constitution or applicable law
or regulation, in the name of such Owner
or as ordered by him and (b) by the delivery
of any other securities, property and cash to
which such Owner is then entitled in respect
of this Receipt. Such delivery will be made
at the option of the Owner hereof, either at
the office of the Custodian or at the
Corporate Trust Office of the Depositary,
provided that the forwarding of certificates
for Shares or other Deposited Securities for
such delivery at the Corporate Trust Office
of the Depositary shall be at the risk and
expense of the Owner hereof.
Notwithstanding any other provision of the
Deposit Agreement or this Receipt, the
surrender of outstanding Receipts and
withdrawal of Deposited Securities may be
suspended only for (i) temporary delays
caused by closing the transfer books of the
Depositary or the Issuer or the deposit of
Shares in connection with voting at a
shareholders meeting, or the payment of
dividends, (ii) the payment of fees, taxes and
similar charges, and (iii) compliance with
any U.S. or foreign laws or governmental
regulations relating to the Receipts or to the
withdrawal of the Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND
COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is
registrable on the books of the Depositary at
its Corporate Trust Office by the Owner
hereof in person or by a duly authorized
attorney, upon surrender of this Receipt
properly endorsed for transfer or
accompanied by proper instruments of
transfer and funds sufficient to pay any
applicable transfer taxes and the expenses of
the Depositary and upon compliance with
such regulations, if any, as the Depositary
may establish for such purpose. This
Receipt may be split into other such
Receipts, or may be combined with other
such Receipts into one Receipt, evidencing
the same aggregate number of American
Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the
execution and delivery, registration of
transfer, split-up, combination, or surrender
of any Receipt or withdrawal of any
Deposited Securities, the Depositary, the
Custodian, or Registrar may require payment
from the depositor of the Shares or the
presentor of the Receipt of a sum sufficient
to reimburse it for any tax or other
governmental charge and any stock transfer
or registration fee with respect thereto
(including any such tax or charge and fee
with respect to Shares being deposited or
withdrawn) and payment of any applicable
fees as provided in this Receipt, may require
the production of proof satisfactory to it as to
the identity and genuineness of any signature
and may also require compliance with such
reasonable procedures, if any, as the
Depositary may establish consistent with the
provisions of the Deposit Agreement or this
Receipt.
The delivery of Receipts against
deposits of Shares generally or against
deposits of particular Shares may be
suspended, or the transfer of Receipts in
particular instances may be refused, or the
registration of transfer of outstanding
Receipts generally may be suspended, during
any period when the transfer books of the
Depositary or the Issuer are closed, or if any
such action is deemed necessary or advisable
by the Depositary or the Issuer at any time
or from time to time because of any
requirement of law or of any government or
governmental body or commission, or under
any provision of the Deposit Agreement or
this Receipt, or for any other reason, subject
to Article (22) hereof. Without limitation of
the foregoing, the Depositary shall not
knowingly accept for deposit under the
Deposit Agreement any Shares that, if sold
by the Owner thereof in the United States,
would be required to be registered under the
provisions of the Securities Act of 1933,
unless a registration statement is in effect as
to such Shares.
4. LIABILITY OF OWNER FOR
TAXES.
If any tax or other governmental
charge shall become payable with respect to
any Receipt or any Deposited Securities
represented hereby, such tax or other
governmental charge shall be payable by the
Owner hereof to the Depositary. The
Depositary may, and upon receipt of
instructions from the Issuer shall, refuse to
effect any transfer of such Receipt (or any
split-up or combination thereof) or any
withdrawal of Deposited Securities
represented by American Depositary Shares
evidenced by such Receipt until such
payment is made, and may withhold any
dividends or other distributions, or may sell,
for the account of the Owner hereof any part
or all of the Deposited Securities represented
by the American Depositary Shares
evidenced by this Receipt, and may apply
such dividends or other distributions or the
proceeds of any such sale in payment of such
tax or other governmental charge and the
Owner hereof shall remain liable for any
deficiency.
5. WARRANTIES OF
DEPOSITORS.
Every person depositing Shares under
the Deposit Agreement shall be deemed
thereby to represent and warrant that such
Shares and each certificate or other
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
Shares deposited by that person are not
Restricted Securities and that the deposit of
such Shares and the sale of Receipts
evidencing American Depositary Shares
representing such Shares by that person are
not restricted under the Securities Act of
1933. Such representations and warranties
shall survive the deposit of Shares and
issuance of Receipts.
6. FILING PROOFS,
CERTIFICATES, AND OTHER
INFORMATION.
Any person presenting Shares for
deposit or any Owner of a Receipt may be
required from time to time to file with the
Depositary or the Custodian such proof of
citizenship or residence, exchange control
approval, or such information relating to
the registration on the books of the Issuer
or the Foreign Registrar, if applicable, to
execute such certificates and to make such
representations and warranties, as the
Depositary may deem necessary or proper
or as the Issuer may reasonably require by
written request to the Depositary. The
Depositary may, and at the reasonable
written request of the Issuer shall, withhold
the delivery or registration of transfer of
any Receipt or the distribution of any
dividend or sale or distribution of rights or
of the proceeds thereof or the delivery of
any Deposited Securities until such proof or
other information is filed or such
certificates are executed or such
representations and warranties made. Upon
written request of the Issuer, the Depositary
shall deliver to the Issuer copies of the
documents or instruments delivered to the
Depositary or any of its agents pursuant to
Section 3.1 of the Deposit Agreement. No
Share shall be accepted for deposit unless
accompanied by evidence satisfactory to the
Depositary that any necessary approval has
been granted by any governmental body in
Australia which is then performing the
function of the regulation of currency
exchange.
7. CHARGES OF DEPOSITARY.
The following charges shall be
incurred by any party depositing or
withdrawing Shares or by any party
surrendering Receipts or to whom Receipts
are issued (including, without limitation,
issuance pursuant to a stock dividend or
stock split declared by the Issuer or an
exchange of stock regarding the Receipts or
Deposited Securities or a distribution of
Receipts pursuant to Section 4.3 of the
Deposit Agreement), 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 Issuer or Foreign
Registrar and applicable to transfers of
Shares to or from the name of the Depositary
or its nominee or the Custodian or its
nominee on the making of deposits or
withdrawals under the Deposit Agreement,
(3) such cable, telex and facsimile
transmission expenses as are expressly
provided in the Deposit Agreement, (4) such
expenses as are incurred by the Depositary in
the conversion of foreign currency pursuant
to Section 4.5 of the Deposit Agreement, (5)
a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for
the execution and delivery of Receipts
pursuant to Section 2.3, 4.3 or 4.4, and the
surrender of Receipts pursuant to Section 2.5
or 6.2 of the Deposit Agreement, (6) a fee of
$.02 or less per American Depositary Share
(or portion thereof) for any cash distribution
made pursuant to the Deposit Agreement
including, but not limited to Sections 4.1
through 4.4 thereof, (7) a fee for the
distribution of securities pursuant to Section
4.2 of the Deposit Agreement, such fee
being in an amount equal to the fee for the
execution and delivery of American
Depositary Shares referred to above which
would have been charged as a result of the
deposit of such securities (for purposes of
this clause (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 charge
payable by the Depositary, any of the
Depositarys agents, including the Custodian,
or the agents of the Depositarys agents in
connection with the servicing of Shares or
other Deposited Securities (which charge
shall be assessed against Owners as of the
date or dates set by the Depositary in
accordance with Section 4.6 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 Issuer and its affiliates and
in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the
Issuer to cease doing so, the Depositary
may, notwithstanding Section 2.3 of the
Deposit Agreement, execute and deliver
Receipts prior to the receipt of Shares
pursuant to Section 2.2 of the Deposit
Agreement (Pre-Release). The Depositary
may, pursuant to Section 2.5 of the Deposit
Agreement, deliver Shares upon the receipt
and cancellation of Receipts which have been
Pre-Released, whether or not such
cancellation is prior to the termination of
such Pre-Release or the Depositary knows
that such Receipt has been Pre-Released.
The Depositary may receive Receipts in lieu
of Shares in satisfaction of a Pre-Release.
Each Pre-Release will be (a) preceded or
accompanied by a written representation
from the person to whom Receipts are to be
delivered, that such person, or its customer,
owns the Shares or Receipts to be remitted,
as the case may be, (b) at all times fully
collateralized with cash or such other
collateral as the Depositary deems
appropriate, (c) terminable by the Depositary
on not more than five (5) business days
notice, and (d) subject to such further
indemnities and credit regulations as the
Depositary deems appropriate. The number
of American Depositary Shares which are
outstanding at any time as a result of Pre-
Releases will not normally exceed thirty
percent (30%) of the Shares deposited under
the Deposit Agreement; provided, however,
that the Depositary reserves the right to
change or disregard such limit from time to
time as it deems appropriate.
The Depositary may retain for its
own account any compensation received by it
in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and
every successive holder and Owner of this
Receipt by accepting or holding the same
consents and agrees, that title to this
Receipt when properly endorsed or
accompanied by proper instruments of
transfer, is transferable by delivery with the
same effect as in the case of a negotiable
instrument under the laws of New York;
provided, however, that the Depositary and
the Issuer, notwithstanding any notice to
the contrary, may treat the person in whose
name this Receipt is registered on the books
of the Depositary as the absolute Owner
hereof for the purpose of determining the
person entitled to distribution of dividends
or other distributions or to any notice
provided for in the Deposit Agreement or
for all other purposes, and neither the
Depositary nor the Issuer 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 Issuer currently furnishes the
Securities and Exchange Commission
(hereinafter called the Commission) with
certain public reports and documents
required by foreign law or otherwise under
Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and
communications will be available for
inspection and copying at the public
reference facilities maintained by the
Commission located at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The Depositary will make available
for inspection by Owners of Receipts at its
Corporate Trust Office any reports and
communications, including any proxy
soliciting material, received from the Issuer
which are both (a) received by the
Depositary or the Custodian or its nominee
as the holder of the Deposited Securities and
(b) made generally available to the holders of
such Deposited Securities by the Issuer. The
Depositary will also, upon written request,
send to Owners of Receipts copies of such
reports when furnished by the Issuer
pursuant to the Deposit Agreement.
The Depositary shall keep books for
the registration of Receipts and transfers of
Receipts which at all reasonable times shall
be open for inspection by the Owners of
Receipts provided that such inspection shall
not be for the purpose of communicating
with Owners of Receipts in the interest of a
business or object other than the business of
the Issuer or a matter related to the Deposit
Agreement or the Receipts.
12. DIVIDENDS AND
DISTRIBUTIONS.
Whenever the Depositary receives
any cash dividend or other cash distribution
on any Deposited Securities, the Depositary
shall, if at the time of receipt thereof any
amounts received in a foreign currency can
in the judgment of the Depositary be
converted on a reasonable basis into United
States dollars transferable to the United
States, and subject to the Deposit
Agreement, convert such dividend or
distribution into dollars and shall distribute
(by checks drawn on a bank in the United
States) the amount thus received (net of the
fees of the Depositary as provided in
Section 5.9 of the Deposit Agreement, if
applicable) to the Owners of Receipts
entitled thereto, provided, however, that in
the event that the Issuer or the Depositary
is required to withhold and does withhold
from any cash dividend or other cash
distribution in respect of any Deposited
Securities an amount on account of taxes,
the amount distributed to the Owners of the
Receipts evidencing American Depositary
Shares representing such Deposited
Securities shall be reduced accordingly.
Subject to the provisions of Sections
4.11 and 5.9 of the Deposit Agreement,
whenever the Depositary receives any
distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4 of the
Deposit Agreement, the Depositary will
cause the securities or property received by
it to be distributed to the Owners of
Receipts entitled thereto, in any manner
that the Depositary may deem equitable and
practicable for accomplishing such
distribution; provided, however, that if in
the opinion of the Depositary such
distribution cannot be made proportionately
among the Owners of Receipts entitled
thereto, or if for any other reason the
Depositary deems such distribution not to
be feasible, the Depositary may, after
consultation with the Issuer, adopt such
method as it may deem equitable and
practicable for the purpose of effecting such
distribution, including, but not limited to,
the public or private sale of the securities
or property thus received, or any part
thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as
provided in Section 5.9 of the Deposit
Agreement) will be distributed by the
Depositary to the Owners of Receipts
entitled thereto all in the manner and
subject to the conditions described in
Section 4.1 of the Deposit Agreement. The
Depositary may sell, by public or private
sale, an amount of securities or other
property it would otherwise distribute under
this Article that is sufficient to pay its fees
and expenses in respect of that distribution.
If any distribution consists of a
dividend in, or free distribution of, Shares,
the Depositary may and shall if the Issuer
shall so request, distribute to the Owners of
outstanding Receipts entitled thereto,
additional Receipts evidencing an aggregate
number of American Depositary Shares
representing the amount of Shares received
as such dividend or free distribution subject
to the terms and conditions of the Deposit
Agreement with respect to the deposit of
Shares and after deduction or upon issuance
of American Depositary Shares evidenced
by Receipts, including the withholding of
any tax or other governmental charge as
provided in Section 4.11 of the Deposit
Agreement and the payment of the fees and
expenses of the Depositary as provided in
Article 7 hereof and Section 5.9 of the
Deposit Agreement (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 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 Receipts for fractional American
Depositary Shares in any such case, the
Depositary will sell the amount of Shares
represented by the aggregate of such
fractions and distribute the net proceeds, all
in the manner and subject to the conditions
set forth in the Deposit Agreement. If
additional Receipts are not so distributed,
each American Depositary Share shall
thenceforth also represent the additional
Shares distributed upon the Deposited
Securities represented thereby.
In the event that the Depositary
determines that any distribution in property
(including Shares and rights to subscribe
therefor) is subject to any tax or other
governmental charge which the Depositary
is obligated to withhold, the Depositary
may by public or private sale dispose of all
or a portion of such property (including
Shares and rights to subscribe therefor) in
such amounts and in such manner as the
Depositary deems necessary and practicable
to pay any such taxes or charges, and the
Depositary shall distribute the net proceeds
of any such sale after deduction of such
taxes or charges to the Owners of Receipts
entitled thereto.
The Depositary shall forward to the
Issuer or its agent such information from its
records as the Issuer may reasonably
request to enable the Issuer or its agent to
file necessary reports with governmental
agencies.
13. CONVERSION OF FOREIGN
CURRENCY.
Whenever the Depositary shall
receive foreign currency, by way of
dividends or other distributions or the net
proceeds from the sale of securities,
property or rights, and if at the time of the
receipt thereof the foreign currency so
received can in the judgment of the
Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars
transferred to the United States, the
Depositary shall convert or cause to be
converted, by sale or in any other manner
that it may determine, such foreign
currency into Dollars, and such Dollars
shall be distributed to the Owners entitled
thereto or, if the Depositary shall have
distributed any warrants or other
instruments which entitle the holders
thereof to such Dollars, then to the holders
of such warrants and/or instruments upon
surrender thereof for cancellation. Such
distribution may be made upon an averaged
or other practicable basis without regard to
any distinctions among Owners on account
of exchange restrictions, the date of
delivery of any Receipt or otherwise and
shall be net of any expenses of conversion
into Dollars incurred by the Depositary as
provided in Section 5.9 of the Deposit
Agreement.
If such conversion or distribution can
be effected only with the approval or license
of any government or agency thereof, the
Depositary shall file such application for
approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall
determine that in its judgment any foreign
currency received by the Depositary is not
convertible on a reasonable basis into Dollars
transferable to the United States, or if any
approval or license of any government or
agency thereof which is required for such
conversion is denied or in the opinion of the
Depositary is not obtainable, or if any such
approval or license is not obtained within a
reasonable period as determined by the
Depositary, the Depositary may distribute
the foreign currency (or an appropriate
document evidencing the right to receive
such foreign currency) received by the
Depositary to, or in its discretion may hold
such foreign currency uninvested and
without liability for interest thereon for the
respective accounts of, the Owners entitled
to receive the same.
If any such conversion of foreign
currency, in whole or in part, cannot be
effected for distribution to some of the
Owners entitled thereto, the Depositary may
in its discretion make such conversion and
distribution in Dollars to the extent
permissible to the Owners entitled thereto
and may distribute the balance of the foreign
currency received by the Depositary to, or
hold such balance uninvested and without
liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Issuer shall
offer or cause to be offered to the holders
of any Deposited Securities any rights to
subscribe for additional Shares or any
rights of any other nature, the Depositary,
after consultation with the Issuer, 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 Owners or
to certain Owners but not to other Owners,
the Depositary may distribute, to any
Owner to whom it determines the
distribution to be lawful and feasible, in
proportion to the number of American
Depositary Shares held by such Owner,
warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights
would otherwise not be distributed, if an
Owner of Receipts requests the distribution
of warrants or other instruments in order to
exercise the rights allocable to the American
Depositary Shares of such Owner under the
Deposit Agreement, the Depositary will
make such rights available to such Owner
upon written notice from the Issuer to the
Depositary that (a) the Issuer has elected in
its sole discretion to permit such rights to be
exercised and (b) such Owner has executed
such documents as the Issuer has determined
in its sole discretion are reasonably required
under applicable law.
If the Depositary has distributed
warrants or other instruments for rights to all
or certain Owners, then upon instruction
from such an Owner pursuant to such
warrants or other instruments to the
Depositary from such Owner to exercise
such rights, upon payment by such Owner to
the Depositary for the account of such
Owner of an amount equal to the purchase
price of the Shares to be received upon the
exercise of the rights, and upon payment of
the fees of the Depositary and any other
charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf
of such Owner, exercise the rights and
purchase the Shares, and the Issuer shall
cause the Shares so purchased to be
delivered to the Depositary on behalf of such
Owner. As agent for such Owner, the
Depositary will cause the Shares so
purchased to be deposited pursuant to
Section 2.2 of the Deposit Agreement, and
shall, pursuant to Section 2.3 of the Deposit
Agreement, execute and deliver Receipts to
such Owner. In the case of a distribution
pursuant to the second paragraph of this
Article, such Receipts shall be legended in
accordance with applicable U.S. laws, and
shall be subject to the appropriate restrictions
on sale, deposit, cancellation, and transfer
under such laws.
If the Depositary determines in its
discretion that it is not lawful and feasible to
make such rights available to all or certain
Owners, it may sell the rights, warrants or
other instruments in proportion to the
number of American Depositary Shares held
by the Owners to whom it has determined it
may not lawfully or feasibly make such
rights available, and allocate the net proceeds
of such sales (net of the fees of the
Depositary as provided in Section 5.9 of the
Deposit Agreement and all taxes and
governmental charges payable in connection
with such rights and subject to the terms and
conditions of the Deposit Agreement) for the
account of such Owners otherwise entitled to
such rights, warrants or other instruments,
upon an averaged or other practical basis
without regard to any distinctions among
such Owners because of exchange
restrictions or the date of delivery of any
Receipt or otherwise.
The Depositary will not offer rights
to Owners unless both the rights and the
securities to which such rights relate are
either exempt from registration under the
Securities Act of 1933 with respect to a
distribution to Owners or are registered
under the provisions of such Act. If an
Owner of Receipts requests distribution of
warrants or other instruments,
notwithstanding that there has been no such
registration under such Act, the Depositary
shall not effect such distribution unless it has
received an opinion from recognized counsel
in the United States for the Issuer upon
which the Depositary may rely that such
distribution to such Owner is exempt from
such registration. The Issuer will have no
obligation under the Deposit Agreement to
register such rights under the Securities Act
of 1933.
The Depositary shall not be
responsible for any failure to determine that
it may be lawful or feasible to make such
rights available to Owners in general or any
Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or
other cash distribution shall become
payable or any distribution other than cash
shall be made, or whenever rights shall be
issued with respect to the Deposited
Securities, or whenever for any reason the
Depositary causes a change in the number
of Shares that are represented by each
American Depositary Share, or whenever
the Depositary shall receive notice of any
meeting of holders of Shares or other
Deposited Securities, the Depositary shall
fix a record date, which date shall be as
near as practicable to the record date set by
the Issuer, if any, (a) for the determination
of the Owners of Receipts who shall be (i)
entitled to receive such dividend,
distribution or rights or the net proceeds of
the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights
at any such meeting, or (iii) responsible for
any fee assessed by the Depositary pursuant
to the Deposit Agreement, or (b) on or
after which each American Depositary
Share will represent the changed number of
Shares, subject to the provisions of the
Deposit Agreement.
16. VOTING OF DEPOSITED
SECURITIES.
Upon receipt of notice of any
meeting of holders of Shares or other
Deposited Securities, if requested in writing
by the Issuer, the Depositary shall, as soon
as practicable thereafter, mail to the
Owners a notice, the form of which notice
shall be in the discretion of the Depositary
or as otherwise provided to the Depositary
by the Issuer or its agent, which shall
contain (a) such information as is contained
in such notice of meeting received by the
Depositary from the Issuer, (b) a statement
that the Owners as of the close of business
on a specified record date will be entitled,
subject to any applicable provision of
Australian law and of the Issuers
Constitution and any other provisions
governing Deposited Securities, to instruct
the Depositary as to the exercise of the
voting rights, if any, pertaining to the
amount of Shares or other Deposited
Securities represented by their respective
American Depositary Shares and (c) a
statement as to the manner in which such
instructions may be given, including an
express indication that instructions may be
given (or be deemed given in accordance
with the paragraph immediately following
this paragraph if no instruction is received)
to the Depositary to give a discretionary
proxy to a person designated by the Issuer.
Upon the written request of an Owner on
such record date, received on or before the
date established by the Depositary for such
purpose, (the Instruction Date) the
Depositary shall endeavor, in so far as
practicable, to vote or cause to be voted (or
to grant a discretionary proxy to a person
designated by the Issuer to vote) the amount
of Shares or other Deposited Securities
represented by the American Depositary
Shares evidenced by such Receipt in
accordance with the instructions set forth in
such request. The Depositary shall not
vote or attempt to exercise the right to vote
that attaches to the Shares or other
Deposited Securities, other than in
accordance with such instructions.
If the Depositary does not receive
instructions from an Owner on or before the
date established by the Depositary for such
purpose, such Owner shall be deemed, and
the Depositary shall deem such Owner, to
have instructed the Depositary to give a
discretionary proxy to a person designated
by the Issuer to vote the underlying Shares,
provided that no such discretionary proxy
shall be deemed given with respect to any
matter as to which the Issuer informs the
Depositary in writing at the time notice of
any meeting or solicitation of consents or
proxies is received by the Custodian (and the
Issuer agrees to provide such notification)
that (i) the Issuer does not wish such proxy
given, (ii) substantial opposition exists or
(iii) the rights of holders of Shares will be
materially and adversely affected.
There can be no assurance that
Owners generally or any Owner in particular
will receive the notice described in the
preceding paragraph sufficiently prior to the
Instruction Date to ensure that the Depositary
will vote the Shares or Deposited Securities
in accordance with the provisions set forth in
the preceding paragraph.
17. CHANGES AFFECTING
DEPOSITED SECURITIES.
In circumstances where the
provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change
in nominal value, change in par value,
split-up, consolidation, redemption,
cancellation or any other reclassification of
Deposited Securities, or upon any
recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the
Issuer or to which it is a party, any
securities, cash or property, which shall be
received by the Depositary or a Custodian
in exchange for or in conversion of or in
respect of Deposited Securities shall be
treated as new Deposited Securities under
the Deposit Agreement, and American
Depositary Shares shall thenceforth
represent the new Deposited Securities so
received, unless additional Receipts are
delivered pursuant to the following
sentence. In any such case the Depositary
may (after consultation with the Issuer, if
practicable), and shall if the Issuer shall so
request, execute and deliver additional
Receipts as in the case of a dividend in
Shares, or call for the surrender of
outstanding Receipts to be exchanged for
new Receipts specifically describing such
new Deposited Securities.
18. LIABILITY OF THE ISSUER
AND DEPOSITARY.
Neither the Depositary nor the
Issuer, nor any of their respective directors,
employees, agents or affiliates, shall incur
any liability to any Owner or holder of any
Receipt, (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 other governmental or
regulatory authority or stock exchange or
automated quotation system, or by reason
of any provision, present or future, of the
Issuers Constitution, or by reason of any
provision of any securities issued or
distributed by the Issuer (or an offering or
distribution thereof), or by reason of any
act of God or war or terrorism or other
circumstances beyond its control, the
Depositary or the Issuer (or any of their
directors, employees, agents or affiliates)
shall be prevented, delayed or forbidden
from or be subject to any civil or criminal
penalty on account of doing or performing
any act or thing which by the terms of the
Deposit Agreement or Deposited Securities
it is provided shall be done or performed,
(ii) by reason of any non-performance or
delay, caused as aforesaid, in the
performance of any act or thing which by
the terms of the Deposit Agreement it is
provided shall or may be done or
performed, (iii) by reason of any exercise
of, or failure to exercise, any discretion
provided for in the Deposit Agreement, (iv)
for the inability of any Owner or 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
Sections 4.1, 4.2, or 4.3 of the Deposit
Agreement, or an offering or distribution
pursuant to Section 4.4 of the Deposit
Agreement, such distribution or offering
may not be made available to Owners of
Receipts, and the Depositary may not
dispose of such distribution or offering on
behalf of such Owners and make the net
proceeds available to such Owners, then the
Depositary shall not make such distribution
or offering, and shall allow any rights, if
applicable, to lapse. Neither the Issuer nor
the Depositary assumes any obligation or
shall be subject to any liability under the
Deposit Agreement to Owners or Beneficial
Owners, except that they agree to perform
their obligations specifically set forth in the
Deposit Agreement without negligence or
bad faith. The Depositary shall not be
subject to any liability with respect to the
validity or worth of the Deposited
Securities. Neither the Depositary nor the
Issuer shall be under any obligation to
appear in, prosecute or defend any action,
suit, or other proceeding in respect of any
Deposited Securities or in respect of the
Receipts on behalf of any Owner or holder
or any person. Neither the Depositary nor
the Issuer shall be liable for any action or
nonaction by it in reliance upon the advice
of or information from legal counsel,
accountants, any person presenting Shares
for deposit, any Owner or holder of a
Receipt, or any other person believed by it
in good faith to be competent to give such
advice or information. The Depositary
shall not be responsible for any failure to
carry out any instructions to vote any of the
Deposited Securities, or for the manner in
which any such vote is cast or the effect of
any such vote, provided that any such
action or nonaction is in good faith. The
Depositary shall not be liable for any acts
or omissions made by a successor
depositary whether in connection with a
previous act or omission of the Depositary
or in connection with a matter arising
wholly after the removal or resignation of
the Depositary, provided that in connection
with the issue out of which such potential
liability arises the Depositary performed its
obligations without negligence or bad faith
while it acted as Depositary. The Issuer
agrees to indemnify the Depositary, its
directors, employees, agents and affiliates
and any Custodian against, and hold each
of them harmless from, any liability or
expense (including, but not limited to, any
fees and expenses incurred in seeking,
enforcing or collecting such indemnity and
the fees and expenses of counsel) which
may arise out of any registration with the
Commission of Receipts, American
Depositary Shares or Deposited Securities
or the offer or sale thereof in the United
States or out of 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,
employees, agents and affiliates, except for
any liability or expense arising out of the
negligence or bad faith of either of them, or
(ii) by the Issuer or any of its directors,
employees, agents and affiliates. No
disclaimer of liability under the Securities
Act of 1933 is intended by any provision of
the Deposit Agreement.
19. RESIGNATION AND
REMOVAL OF THE DEPOSITARY.
The Depositary may at any time
resign as Depositary under the Deposit
Agreement by written notice of its election
so to do delivered to the Issuer, such
resignation to take effect upon the
appointment of a successor depositary and
its acceptance of such appointment as
provided in the Deposit Agreement. The
Depositary may at any time be removed by
the Issuer by 90 days prior written notice of
such removal, to become effective upon the
later of (i) the 90th 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 written agreement between the
Issuer and the Depositary without the
consent of Owners or Beneficial Owners of
Receipts in any respect which they may
deem necessary or desirable. Any
amendment which shall impose or increase
any fees or charges (other than taxes and
other governmental charges, registration
fees, cable, telex or facsimile transmission
costs, delivery costs or other such
expenses), or which shall otherwise
prejudice any substantial existing right of
Owners of Receipts, shall, however, not
become effective as to outstanding Receipts
until the expiration of thirty days after
notice of such amendment shall have been
given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the
time any amendment so becomes effective
shall be deemed, by continuing to hold such
Receipt, to consent and agree to such
amendment and to be bound by the Deposit
Agreement as amended thereby. In no
event shall any amendment impair the right
of the Owner of any Receipt to surrender
such Receipt and receive therefor the
Deposited Securities represented thereby
except in order to comply with mandatory
provisions of applicable law.
21. TERMINATION OF DEPOSIT
AGREEMENT.
The Depositary shall at any time at
the direction of the Issuer terminate the
Deposit Agreement by mailing notice of
such termination to the Owners of all
Receipts then outstanding at least 60 days
prior to the date fixed in such notice for
such termination. The Depositary may
likewise terminate the Deposit Agreement
by mailing notice of such termination to the
Issuer and the Owners of all Receipts then
outstanding if at any time 60 days shall
have expired after the Depositary shall have
delivered to the Issuer a written notice of
its election to resign and a successor
depositary shall not have been appointed
and accepted its appointment as provided in
the Deposit Agreement. On and after the
date of termination, the Owner of a
Receipt, will upon (a) surrender of such
Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the
Depositary for the surrender of Receipts
referred to in Section 2.5 of the Deposit
Agreement, and (c) payment of any
applicable taxes or governmental charges,
be entitled to delivery, to him or upon his
order, of the amount of Deposited
Securities represented by the American
Depositary Shares evidenced by such
Receipt. If any Receipts shall remain
outstanding after the date of termination,
the Depositary thereafter shall discontinue
the registration of transfers of Receipts,
shall suspend the distribution of dividends
to the Owners thereof, and shall not give
any further notices or perform any further
acts under the Deposit Agreement, except
that the Depositary shall continue to collect
dividends and other distributions pertaining
to Deposited Securities, shall sell rights or
other property as provided in the Deposit
Agreement, and shall continue to deliver
Deposited Securities, together with any
dividends or other distributions received
with respect thereto and the net proceeds of
the sale of any rights or other property, in
exchange for Receipts surrendered to the
Depositary (after deducting, in each case,
the fee of the Depositary for the surrender
of a Receipt, any expenses for the account
of the Owner of such Receipt in accordance
with the terms and conditions of the
Deposit Agreement, and any applicable
taxes or governmental charges). At any
time after the expiration of four months
from the date of termination, the
Depositary may sell the Deposited
Securities then held under the Deposit
Agreement and may thereafter hold
uninvested the net proceeds of any such
sale, together with any other cash then held
by it thereunder, unsegregated and without
liability for interest, for the pro rata benefit
of the Owners of Receipts which have not
theretofore been surrendered, such Owners
thereupon becoming general creditors of
the Depositary with respect to such net
proceeds. After making such sale, the
Depositary shall be discharged from all
obligations under the Deposit Agreement,
except to account for such net proceeds and
other cash (after deducting, in each case,
the fee of the Depositary for the surrender
of a Receipt, any expenses for the account
of the Owner of such Receipt in accordance
with the terms and conditions of the
Deposit Agreement, and any applicable
taxes or governmental charges). Upon the
termination of the Deposit Agreement, the
Issuer shall be discharged from all
obligations under the Deposit Agreement
except for its obligations to the Depositary
with respect to indemnification, charges,
and expenses of the Deposit Agreement.
The obligations of the Depositary under
Section 5.8 of the Deposit Agreement shall
survive termination of the Deposit
Agreement.
22. COMPLIANCE WITH U.S.
SECURITIES LAWS.
Notwithstanding anything in the
Deposit Agreement or this Receipt to the
contrary, the Issuer and the Depositary
each agrees that it will not exercise any
rights it has under the Deposit Agreement
to prevent the withdrawal or delivery of
Deposited Securities in a manner which
would violate the U.S. securities laws,
including, but not limited to, Section
I.A.(1) of the General Instructions to the
Form F-6 Registration Statement, as
amended from time to time, under the
Securities Act of 1933.
23. DISCLOSURE OF INTERESTS.
The Issuer may from time to time
request Owners to provide information (a)
as to the capacity in which such Owners
own or owned American Depositary
Shares, (b) regarding the identity of any
other persons then or previously interested
in such American Depositary Shares and
(c) regarding the nature of such interest and
various other matters pursuant to applicable
law or the Constitution or other such
corporate document of the Issuer, all as if
such American Depositary Shares were to
the extent practicable the underlying
Shares. Each Owner and Beneficial Owner
agrees to provide any information requested
by the Issuer or the Depositary pursuant to
this Section. The Depositary agrees to use
reasonable efforts to comply with written
instructions received from the Issuer
requesting that the Depositary forward any
such requests to Owners or to forward to
the Issuer any responses to such requests
received by the Depositary.
24. SUBMISSION TO
JURISDICTION
In the Deposit Agreement, the Issuer
has (i) appointed Corporation Service
Company, 00 Xxxxx Xxxxxx, 0xx Xxxxx,
Xxxxxx, Xxx Xxxx 00000-0000, as the
Issuers 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
Issuer in any such suit or proceeding.
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