Exhibit 1
EXECUTION COPY
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WHITE ENERGY COMPANY LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
Deposit Agreement
Dated as of ______________, 2007
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS....................................................... 1
SECTION 1.01 AMERICAN DEPOSITARY SHARES................................. 1
SECTION 1.02 CHESS...................................................... 2
SECTION 1.03 COMMISSION................................................. 2
SECTION 1.04 COMPANY.................................................... 2
SECTION 1.05 CUSTODIAN.................................................. 2
SECTION 1.06 DELIVER; SURRENDER......................................... 2
SECTION 1.07 DEPOSIT AGREEMENT.......................................... 3
SECTION 1.08 DEPOSITARY; CORPORATE TRUST OFFICE......................... 3
SECTION 1.09 DEPOSITED SECURITIES....................................... 3
SECTION 1.10 DOLLARS.................................................... 3
SECTION 1.11 DTC........................................................ 3
SECTION 1.12 FOREIGN 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 .................... 5
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............................... 9
SECTION 2.07 LOST RECEIPTS, ETC......................................... 10
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS................................................. 10
SECTION 2.09 PRE-RELEASE OF AMERICAN DEPOSITARY SHARES.................. 10
SECTION 2.10 DTC DIRECT REGISTRATION SYSTEM AND PROFILE
MODIFICATION SYSTEM...................................... 11
SECTION 2.11 MAINTENANCE OF RECORDS..................................... 11
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF
AMERICAN DEPOSITARY SHARES...................................... 12
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.......... 12
SECTION 3.02 LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES........... 12
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES............................ 13
SECTION 3.04 DISCLOSURE OF INTERESTS.
ARTICLE 4. THE DEPOSITED SECURITIES.......................................... 13
SECTION 4.01 CASH DISTRIBUTIONS......................................... 13
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS............ 14
SECTION 4.03 DISTRIBUTIONS IN SHARES.................................... 14
SECTION 4.04 RIGHTS..................................................... 15
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY............................. 16
SECTION 4.06 FIXING OF RECORD DATE...................................... 17
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SECTION 4.07 VOTING OF DEPOSITED SECURITIES............................. 17
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES..................... 18
SECTION 4.09 REPORTS.................................................... 19
SECTION 4.10 LISTS OF OWNERS............................................ 19
SECTION 4.11 WITHHOLDING................................................ 19
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.................... 19
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY
THE DEPOSITARY........................................... 19
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY OR THE COMPANY................................ 20
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN
AND THE COMPANY.......................................... 20
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY.................. 21
SECTION 5.05 THE CUSTODIANS............................................. 22
SECTION 5.06 NOTICES AND REPORTS........................................ 23
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC............. 23
SECTION 5.08 INDEMNIFICATION............................................ 24
SECTION 5.09 CHARGES OF DEPOSITARY...................................... 24
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS.......................... 25
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................................................ 26
ARTICLE 7. MISCELLANEOUS..................................................... 27
SECTION 7.01 COUNTERPARTS............................................... 27
SECTION 7.02 NO THIRD PARTY BENEFICIARIES............................... 27
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; APPOINTMENT OF AGENT
FOR SERVICE OF PROCESS; JURY TRIAL WAIVER ............... 28
SECTION 7.07 WAIVER OF IMMUNITIES....................................... 29
SECTION 7.08 GOVERNING LAW ............................................. 29
SECTION 7.09 COMPLIANCE WITH U.S. SECURITIES LAWS....................... 29
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _____________, 2007, among WHITE ENERGY
COMPANY LIMITED, incorporated under the laws of Victoria, 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 White Energy Company Limited, organized
under the laws of Victoria, the Commonwealth of Australia, and its successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the principal Melbourne, Victoria,
Australia offices of each of Australia and New Zealand Banking Group Ltd,
Hongkong 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 the
Commonwealth of 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.
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ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES,
DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES
SECTION 2.01 Form of Receipts; Registration and Transferability of American
Depositary Shares.
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 to
comply with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which
American Depositary Shares may be listed or quoted or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject by reason of the date of issuance of
the underlying Deposited Securities or otherwise.
American Depositary Shares evidenced by a Receipt, when properly endorsed
or accompanied by proper instruments of transfer, shall be transferable as
certificated registered securities under the laws of New York. American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Depositary
and the Company, notwithstanding any notice to the contrary, may treat the Owner
of American Depositary Shares as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under this Deposit Agreement to any
Holder of a Receipt unless such Holder is the Owner thereof.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof to any
Custodian hereunder,
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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
to deliver to, or upon the written order of, the person or persons stated in
such order, the number of American Depositary Shares representing such deposit.
No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted by
any governmental body in the Commonwealth of Australia 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
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Depositary Shares to be so delivered. Such notification shall be made by letter
or, at the request, risk and expense of the person making the deposit, by cable,
telex or facsimile transmission (and in addition, if the transfer books of the
Company or the Foreign Registrar, if applicable, are open, the Depositary may in
its sole discretion require a proper acknowledgment or other evidence from the
Company that any Deposited Securities have been recorded upon the books of 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, without unreasonable delay, 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.
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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 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 to the Depositary for delivery at the Corporate Trust
Office of the Depositary or at such other place as may be designated by such
Owner. Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile transmission.
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SECTION 2.06 Limitations on Delivery, Transfer and Surrender of American
Depositary Shares.
As a condition precedent to the delivery, registration of transfer, or
surrender of any American Depositary Shares or split-up or combination of any
Receipt or withdrawal of any Deposited Securities, the Depositary, Custodian or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt or instruction for registration of transfer or surrender of American
Depositary Shares not evidenced by a Receipt of a sum sufficient to reimburse it
for any tax or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and payment of any applicable fees as
herein provided, and 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.
The Depositary shall comply with the reasonable written instructions of
the Company requesting the Depositary not to accept for deposit hereunder any
Shares identified in such instructions in order to facilitate the Company's
compliance with the securities laws of the United States and other
jurisdictions.
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SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. 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.
Unless requested in writing by the Company to cease doing so,
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 surrender or 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 and agreement from the
person to whom American Depositary Shares or Shares are to be delivered (the
"Pre-Releasee"), that such person, or its customer, (i) owns the Shares or
American Depositary Shares to be remitted, as the case may be, (ii) assigns all
beneficial rights, title and interest in such Shares or American Depositary
Shares, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or American Depositary Shares, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or American Depositary
Shares, as the case may be), other than in satisfaction of such Pre-Release, (b)
at all times fully collateralized with cash or such other collateral as the
Depositary determines, in good faith, will provide substantially similar
liquidity and security, (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-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary reserves the
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Company, change such
limit for purposes of general application.
The Depositary will also set Dollar limits with respect to Pre-Release
transactions to be entered into hereunder with any particular Pre-Releasee on a
case by case basis as the Depositary deems appropriate. For purposes of enabling
the Depositary to fulfill its obligations
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to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
SECTION 2.10 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 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.
SECTION 2.11 Maintenance of Records.
The Depositary agrees to maintain records of all American Depositary
Shares surrendered and Deposited Securities withdrawn under Section 2.05,
substitute Receipts delivered under Section 2.07 and cancelled or destroyed
Receipts under Section 2.08, in keeping with procedures ordinarily followed by
stock transfer agents located in the City of New York.
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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 Company's articles of
association or similar document 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
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. If requested in writing by the Company, the
Depositary shall provide the Company, in a timely manner, with copies of all
proofs, certificates or information that it receives pursuant to this Section
3.01, unless prohibited by applicable law. 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 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
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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 Shares as the case may be) and regarding the identity of any other persons
then or previously interested in such American Depositary Shares (and Shares as
the case may be) 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 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
Owners of the American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest whole cent
and so distributed to Owners entitled thereto. The Company or its agent will
remit to the appropriate governmental agency in the Commonwealth of Australia
all amounts withheld and owing to such agency. The Depositary will forward to
the Company or its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental agencies, and the Depositary or the Company or its agent may
file any such reports necessary to obtain benefits under the applicable tax
treaties for the Owners.
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SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received by it to be distributed to the Owners entitled thereto, after
deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or Holders) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it may deem equitable and practicable
for the purpose of effecting such distribution, including, but not limited to,
the public or private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the fees and
expenses of the Depositary as provided in Section 5.09) shall be distributed by
the Depositary to the Owners entitled thereto, all in the manner and subject to
the conditions described in Section 4.01. The Depositary may sell, by public or
private sale, an amount of securities or other property it would otherwise
distribute under this Section 4.02 that is sufficient to pay it fees and
expenses in respect of that distribution.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the
Company shall so request, deliver to the Owners entitled thereto, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively, an aggregate number of American Depositary
Shares representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the 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 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 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.
-14-
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, in consultation
with the Company, 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, in consultation with the Company, 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 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
American Depositary Shares shall be subject to the appropriate restrictions on
sale, deposit, cancellation, and transfer under applicable U.S. laws and any
Receipts evidencing American Depositary Shares shall be legended in accordance
with such laws.
If the Depositary determines in its discretion, in consultation with the
Company, 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
-15-
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
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any American Depositary Shares or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable; provided,
however, that neither the Company nor the Depositary shall be obligated to make
such filing.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the
-16-
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 (which shall, insofar as is reasonably practicable, be
as near as practicable to the record date established by the Company in respect
of the Shares) (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.
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 prepared by the Depositary and provided to the Company
for its approval, such approval not to be unreasonably withheld, 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 or regulation and the Company's articles
of association or similar document, 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
-17-
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 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.
In circumstances where the provisions of Section 4.03 do not apply, upon
any change in nominal value, split-up, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation, or sale of assets affecting the Company
or to which it is a party, or upon the redemption or cancellation by the Company
of the Deposited Securities, any securities, cash or property which shall be
received by the Depositary or a Custodian in exchange for, in conversion of, in
lieu of or in respect of Deposited Securities, shall, if permitted by applicable
law, be treated as new Deposited Securities under this Deposit Agreement, and
American Depositary Shares shall thenceforth represent, in addition to the
existing Deposited Securities, if any, the new Deposited Securities so received
in exchange or conversion, unless additional Receipts are delivered pursuant to
the following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
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.
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SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports, notices and communications, including any
proxy soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Depositary shall also, upon written request by the Company, send to the
Owners copies of such reports furnished by the Company pursuant to Section 5.06.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the expense
of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names American Depositary Shares are registered on the books of the Depositary.
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable 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 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 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 or at the reasonable request of the Company.
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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 any such 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 such
copies of such portions of their records as the Company may reasonably request
in writing.
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.
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
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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 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 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.
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
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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. As
promptly as practicable after the appointment or removal of a Custodian, the
Depositary shall give notice thereof in writing to the Company.
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
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SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the prompt transmittal by the Company to the
Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Company to holders of
its Shares. If requested in writing by the Company, the Depositary will arrange
for the mailing, at the Company's expense, of copies of such notices, reports
and communications to all Owners or, at the reasonable request of the Company,
make copies thereof available to all Owners in the same manner as the Company
makes such documents generally available to holders of Shares, or on such other
basis as the Company may advise the Depositary as being required by law or
regulation or any requirement of any stock exchange or automated quotation
system to which the Company may be subject. The Company will timely provide the
Depositary with the quantity of such notices, 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 reasonably 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 counsel to the
Company to the effect that the Shares to be deposited are permissible deposits
-23-
under the General Instructions to the Form F-6 Registration Statement, as
amended from time to time under the Securities Act.
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 the
reasonable fees and expenses incurred in seeking, enforcing or collecting such
indemnity and the 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 a
Custodian or their respective directors, officers, employees, agents and
affiliates due to their negligence or bad faith.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees and reasonable out-of-pocket expenses
of the Depositary and those of any Registrar only in accordance with agreements
in writing entered into between the Depositary and the Company from time to
time.
The 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
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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.
SECTION 5.11 Exclusivity.
Subject to Section 5.04, 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.
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
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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. The Company and the Depositary may amend this
Deposit Agreement from time to time to reflect changes in Australian law or
regulations or in the Company's articles of association or similar document.
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 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 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
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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 for its obligations to the Company
under Sections 5.08 and 5.09. 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.
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 White Energy Company
Limited, Level 5, Grafton Bond Building, 000 Xxxx Xxxxxx, Xxxxxx XXX 0000
Xxxxxxxxx, Attention: Chief Financial Officer, or any other place to which the
Company may have transferred its principal office with notice to the Depositary.
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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 CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 in the State of New York, as the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, (ii) 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.
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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.
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.
SECTION 7.09 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under this Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner that 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.
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IN WITNESS WHEREOF, WHITE ENERGY COMPANY 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.
WHITE ENERGY COMPANY LIMITED
By: _____________________________
Name: Xxxx Xxxxxxx Xxxxxxxx
Title: Managing Director
THE BANK OF NEW YORK,
as Depositary
By: /s/ Xxxxxx X. Xx Xxxxxxxx
-----------------------------
Name: Xxxxxx X. Xx Xxxxxxxx
Title: Vice President
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EXHIBIT A
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
WHITE ENERGY COMPANY LIMITED
(INCORPORATED UNDER THE LAWS OF VICTORIA,
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 White Energy
Company Limited, a company incorporated under the laws of Victoria, the
Commonwealth of Australia (herein called the "Company"). At the date hereof,
each American Depositary Share represents five (5) Shares which are either
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, Hongkong Bank of Australia and
National Australia Bank Limited (each herein called the "Custodian"). The
Depositary's Corporate Trust Office is located at a different address than its
principal executive office. Its Corporate Trust Office is located at 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive office is located at
Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
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 ______________, 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 the payment of all taxes and governmental charges payable, and
subject to the terms and conditions of the 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 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 of the Deposit Agreement), and, in either
case, duly stamped as may be required by the laws of the State of New York and
of the United States of America and upon payment of funds for any applicable
transfer taxes and the reasonable expenses of the Depositary and upon compliance
with such reasonable procedures, if any, as the Depositary may establish for
such purpose consistent with the provisions of the Deposit Agreement. This
Receipt may be
2
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. 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, and 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
The Depositary shall comply with the reasonable written instructions of
the Company requesting the Depositary not to accept for deposit under the
Deposit Agreement any Shares identified in such instructions in order to
facilitate the Company's compliance with the securities laws of the United
States and other jurisdictions.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any American Depositary Shares or
any Deposited Securities represented by any American Depositary Shares, such tax
or other governmental charge shall be payable by the Owner of such American
Depositary Shares to the Depositary. The Depositary may 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.
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 Company's articles of
association or similar document 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
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. If requested in writing by the Company, the
Depositary
4
shall provide the Company, in a timely manner, with copies of all proofs,
certificates or information that it received pursuant to this Article 6, unless
prohibited by applicable law. 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.
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.
5
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Company to cease doing so,
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 surrender or 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 and agreement from the
person to whom American Depositary Shares or Shares are to be delivered (the
"Pre-Releasee"), that such person, or its customer, (i) owns the Shares or
American Depositary Shares to be remitted, as the case may be, (ii) assigns all
beneficial rights, title and interest in such Shares or American Depositary
Shares, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or American Depositary Shares, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or American Depositary
Shares, as the case may be), other than in satisfaction of such Pre-Release, (b)
at all times fully collateralized with cash or such other collateral as the
Depositary determines in good faith, will provide substantially similar
liquidity and security, (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-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 disregard such limit from time to time as it
deems reasonably appropriate, and may, with the prior written consent of the
Company, change such limit for purposes of general application. The Depositary
will also set Dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case by case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities under the Deposit Agreement).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
6
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, this Receipt
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 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 such Receipt is countersigned by the manual signature of a
duly authorized officer of the Depositary or a 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 on the Company's Web site at
http:/xxx.xxxxxxxxxxxxx.xxx/xxxXxxxxxxxxxxxx.xxx or through an electronic
information delivery system.
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 Section
5.06 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.
7
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 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 entitled thereto, all in the manner and subject to the conditions
described in Section 4.01 of the Deposit Agreement. The Depositary may sell, by
public or private sale, an amount of securities or other property it would
otherwise distribute under this Article that is sufficient to pay its fees and
expenses in respect of that distribution.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may, and shall if the Company shall so request, deliver
to the Owners entitled thereto an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the 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
American Depositary Shares if it has not received satisfactory assurances from
the Company that such
8
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 4.01 of 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 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, in consultation
with the Company, 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, in consultation with the Company, that it is
lawful and feasible to make such rights available to all or certain Owners but
not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the American Depositary Shares of such Owner
under the Deposit Agreement, the Depositary will make such rights available to
such Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
9
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
American Depositary Shares shall be subject to the appropriate restrictions on
sale, deposit, cancellation, and transfer under applicable U.S. laws and any
Receipts evidencing American Depositary Shares shall be legended in accordance
with such laws.
If the Depositary determines in its discretion, in consultation with the
Company, 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 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.
10
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any American Depositary Shares or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable; provided,
however, that neither Company nor the Depositary shall not be obligated to make
such filing.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
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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 (which shall, insofar as is reasonably practicable, be
as near as practicable to the record date established by the Company in respect
of the Shares) (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 prepared by the Depositary and
provided to the Company for its approval, such approval not to be unreasonably
withheld, 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 or regulation
and the Company's articles of association or similar document, 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.
In circumstances where the provisions of Article 12 do not apply, upon any
change in nominal value, split-up, consolidation, or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the Company or to which it is a
party, or upon the redemption or cancellation by the Company of the Deposited
Securities, any securities, cash or property which shall be received by the
Depositary or a Custodian in exchange for, in conversion of, in lieu of or in
respect of Deposited Securities shall, if permitted by applicable law, be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent, in addition to the existing
Deposited Securities, if any, the new Deposited Securities so received in
exchange or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
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
13
Agreement, or an offering or distribution pursuant to Section 4.04 of the
Deposit Agreement, or for any other reason, such distribution or offering may
not be made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse. 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 each
of the Company and the Depositary agrees 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 the
reasonable fees and expenses incurred in seeking, enforcing or collecting such
indemnity and the 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
14
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by 120 days prior written
notice of such removal, to become effective upon the later of (i) the 120th day
after delivery of the notice to the Depositary and (ii) the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement. The Depositary, in its discretion, may appoint a substitute
or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Holders in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
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.
The Company and the Depositary may amend the Deposit Agreement from time to time
to reflect changes in Australian law or regulations or in the Company's articles
of association or similar document.
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 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 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
15
Depositary Shares, shall suspend the distribution of dividends to the Owners
thereof, shall not accept deposits of Shares, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, upon surrender of American Depositary Shares (after deducting, in each
case, the fee of the Depositary for the surrender of American Depositary Shares,
any expenses for the account of the Owner of such American Depositary Shares in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). At any time after the expiration of
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 for its obligations to the Company
under Sections 5.08 and 5.09 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 under
Sections 5.08 and 5.09 of the Deposit Agreement.
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
16
actual authority to act on behalf of the Owner (notwithstanding any requirements
under the Uniform Commercial Code). For the avoidance of doubt, the provisions
of Sections 5.03 and 5.08 of the Deposit Agreement shall apply to the matters
arising from the use of the DRS. The parties agree that the Depositary's
reliance on and compliance with instructions received by the Depositary through
the DRS/Profile System and in accordance with the Deposit Agreement shall not
constitute negligence or bad faith on the part of the Depositary.
23. SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000 in the State of New York, as the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or the Deposit 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 has, in the Deposit
Agreement, to the fullest extent permitted by law, irrevocably and
unconditionally waived, and agreed not to plead or claim, any such immunity and
consented to such relief and enforcement.
17
24. DISCLOSURE OF INTERESTS.
The Company may from time to time request Owners to provide information as
to the capacity in which such Owners own or owned American Depositary Shares
(and Shares as the case may be) and regarding the identity of any other persons
then or previously interested in such American Depositary Shares (and Shares as
the case may be) and the nature of such interest. Each Owner agrees to provide
any information requested by the Company or the Depositary pursuant to Section
3.04 of the Deposit Agreement. The Depositary agrees to comply with reasonable
written instructions received from the Company requesting that the Depositary
forward any such requests to the Owners and to forward to the Company any such
responses to such requests received by the Depositary. To the extent that
provisions of or governing any Deposited Securities or the rules or regulations
of any governmental authority or securities exchange or automated quotation
system may require the disclosure of beneficial or other ownership of Deposited
Securities, other Shares and other securities to the Company or other persons
and may provide for blocking transfer and voting or other rights to enforce such
disclosure or limit such ownership, the Depositary shall use its reasonable
efforts to comply with Company's instructions in respect of any such enforcement
or limitation.
25. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Company and the Depositary each agrees that it will not exercise
any rights it has thereunder and hereunder to permit the withdrawal or delivery
of Deposited Securities in a manner that 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.
