IN CERTAIN CIRCUMSTANCES
SHARES REPRESENTED BY THIS
RECEIPT
MAY BE SOLD WITHOUT THE
CONSENT OF OWNERS. IN
ADDITION
THE RIGHT OF OWNERS OF
RECEIPTS TO DIRECT THE VOTING
OF
SHARES MAY BE RESTRICTED AS
DESCRIBED IN PARAGRAPH 9
BELOW.
Effective September 24, 2007 the
Companys American Depositary Share
(ADS) Ratio Changed from 1:8(One ADS
Representing Eight Ordinary Shares) to
1:5 (One ADSs Representing Five
Ordinary Shares).
Exhibit A to Deposit Agreement
No.
[SponsoredExempt]
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents eight (8) deposited shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES HAVING
NO PAR VALUE OF
TELECOM CORPORATION OF NEW
ZEALAND LIMITED
(INCORPORATED UNDER THE LAWS
OF NEW ZEALAND)
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 Telecom
Corporation of New Zealand Limited,
incorporated under the laws of New Zealand
(herein called the Company). At the date
hereof, each American Depositary Share
represents eight (8) Shares which are either
deposited or subject to deposit under the
deposit agreement at the principal
Melbourne, Victoria, Australia office of
Australia and New Zealand Banking Group
Limited, the principal Melbourne, Victoria,
Australia office of National Australia Bank
or the principal Wellington, New Zealand
office of the Bank of New Zealand (herein
collectively called the Custodian). The
Depositarys Corporate Trust Office is
located at a different address than its
principal executive office. Its Corporate
Trust Office is located at 000 Xxxxxxx Xxxxxx,
Xxx Xxxx, X.X. 10286, and its principal
executive office is located at Xxx Xxxx
Xxxxxx, Xxx Xxxx, X.X. 10286.
THE DEPOSITARYS CORPORATE
TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX,
X.X. 10286
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 amended and
restated deposit agreement dated as of
________________, 2007 (herein called the
Deposit Agreement), by and among the
Company, the Depositary, and all Owners
and Beneficial Owners from time to time of
Receipts issued thereunder, each of whom
by accepting a Receipt agrees to become a
party thereto and become bound by all the
terms and conditions thereof. The Deposit
Agreement sets forth the rights of Owners
and Beneficial Owners of the Receipts and
the rights and duties of the Depositary in
respect of the Shares deposited thereunder
and any and all other securities, property
and cash from time to time received in
respect of such Shares and held thereunder
(such Shares, securities, property, and cash
are herein called Deposited Securities).
Copies of the Deposit Agreement are on file
at the Depositarys Corporate Trust Office in
New York City and at the offices of the
Custodian.
The statements made on the face and
reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement
and are qualified by and subject to the
detailed provisions of the Deposit
Agreement, to which reference is hereby
made. Capitalized terms not defined herein
shall have the meanings set forth in the
Deposit Agreement.
2. SURRENDER OF RECEIPTS AND
WITHDRAWAL OF SHARES.
Upon surrender at the Corporate
Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the
Depositary provided in this Receipt and
payment of all applicable taxes and
governmental charges, and subject to the
terms and conditions of the Deposit
Agreement, the Owner hereof is entitled to
delivery, to him or upon his order, of the
Deposited Securities at the time represented
by the American Depositary Shares for
which this Receipt is issued. Delivery of
such Deposited Securities may be made by
the delivery of (a) certificates in the name of
the Owner hereof or as ordered by him or by
the delivery of certificates properly
endorsed or accompanied by proper
instruments of transfer and any necessary
tax stamps affixed and (b) any other
securities, property and cash to which such
Owner is then entitled in respect of this
Receipt. Such delivery will be made at the
option of the Owner hereof, either at the
office of the Custodian or at the Corporate
Trust Office of the Depositary, provided that
the forwarding of certificates for Shares or
other Deposited Securities for such delivery
at the Corporate Trust Office of the
Depositary shall be at the risk and expense
of the Owner hereof.
3. TRANSFERS, SPLITUPS, AND
COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is
registrable on the books of the Depositary at
its Corporate Trust Office by the Owner
hereof in person or by a duly authorized
attorney, upon surrender of this Receipt
properly endorsed for transfer or
accompanied by proper instruments of
transfer. This Receipt may be split into
other such Receipts, or may be combined
with other such Receipts into one Receipt,
representing the same aggregate number of
American Depositary Shares as the Receipt
or Receipts surrendered. As a condition
precedent to the execution and delivery,
registration of transfer, splitup, combination,
or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary,
the Custodian, or Registrar may require, or
the Company may reasonably require by
written request to the Depositary, payment
from the depositor of Shares or the presentor
of the Receipt of a sum sufficient to
reimburse it for any tax or other
governmental charge and any stock transfer
or registration fee with respect thereto
(including any such tax or charge and fee
with respect to Shares being deposited or
withdrawn) and payment of any applicable
fees as provided in this Receipt, may require
the production of proof satisfactory to it as
to the identity and genuineness of any
signature and may also require compliance
with any regulations the Depositary may
establish consistent with the provisions of
the Deposit Agreement or this Receipt,
including, without limitation, this Paragraph
(3) and Paragraph (23) of this Receipt.
The delivery of Receipts against
deposits of Shares generally or against
deposits of particular Shares may be
suspended, or the transfer of Receipts in
particular instances may be refused, or the
registration of transfer of outstanding
Receipts generally may be suspended,
during any period when the transfer books
of the Depositary, the Company or the
Registrar or the Foreign Registrar are
closed, or if any such action is deemed
necessary or advisable by the Depositary or
the Company at any time or from time to
time because of any requirement of law or
of any government or governmental body or
commission or any securities exchange on
which the Shares or American Depositary
Shares are listed for trading, or under any
provision of the Deposit Agreement, or for
any other reason, subject to Paragraph (23)
hereof. The surrender of outstanding
Receipts and withdrawal of Deposited
Securities may not be suspended subject
only to (i) temporary delays caused by
closing the transfer books of the Depositary
or the Company or the deposit of Shares in
connection with voting at a shareholders
meeting, or the payment of dividends, (ii)
the payment of fees, taxes and similar
charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations
relating to the Receipts or to the withdrawal
of the Deposited Securities, and (iv) any
other reason that may at any time be
specified in paragraph I.A.(1) of the General
Instructions to Form F6 (as such General
Instructions may be amended from time to
time). Without limitation of the foregoing,
the Depositary shall not knowingly accept
for deposit under the Deposit Agreement
any Shares required to be registered under
the provisions of the Securities Act, unless a
registration statement is in effect as to such
Shares.
4. LIABILITY OF OWNER FOR
TAXES.
If any tax or other governmental
charge payable by the Depositary or the
Custodian shall become payable with
respect to any Receipt or any Deposited
Securities represented by any Receipt, such
tax or other governmental charge shall be
payable by the Owner or Beneficial Owner
of such Receipt to the Depositary, provided
that the Owner and the Beneficial Owner
shall remain jointly liable for such taxes or
charges and the Depositary may enforce
payment against the Owner or Beneficial
Owner at its absolute discretion.. The
Depositary may refuse to effect any transfer
of such Receipt or any withdrawal of
Deposited Securities represented by
American Depositary Shares evidenced by
such Receipt until such payment is made,
and may withhold any dividends or other
distributions, or may sell for the account of
the Owner or Beneficial Owner thereof any
part or all of the Deposited Securities
represented by the American Depositary
Shares evidenced by such Receipt, and may
apply such dividends or other distributions
or the proceeds of any such sale in payment
of such tax or other governmental charge
and the Owner or Beneficial Owner of such
Receipt shall remain liable for any
deficiency. The Custodian may refuse to
accept the deposit or Shares, and the
Depositary may refuse to issue American
Depositary Shares, to deliver American
Depositary Receipts, to register the transfer,
splitup or combination of American
Depositary Receipts, and to permit the
withdrawal of Deposited Securities until
payment in full of such tax or charge. Every
Owner and Beneficial Owner agrees to
indemnify the Depositary, the Company, the
Custodian and any of their agents, officers,
employees and affiliates for, and to hold
each of them harmless from, any claims
with respect to taxes (including applicable
interest and penalties thereon) arising from
any tax benefit obtained for such Owner
and/or Beneficial Owner.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares
under the Deposit Agreement shall be
deemed thereby to represent and warrant
that such Shares and each certificate
therefore, if applicable, are validly issued,
fully paid, legally obtained nonassessable,
free of any preemptive rights of holders of
outstanding shares, are not a holding, or part
of a holding, in which a person has a
Relevant Interest in Shares in breach of the
Constitution and that the person making
such deposit is duly authorized so to do, and
that Shares presented for deposit are free
and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim,
and are not, and the American Depositary
Shares issuable upon such deposit will not
be, Restricted Securities and the Shares
presented for deposit have not been stripped
of any rights or entitlements. Every such
person shall also be deemed to represent that
the deposit of such Shares or sale of
Receipts evidencing American Depositary
Shares representing such Shares by that
person is not restricted under the Securities
Act. In addition, each Beneficial Owner
shall be deemed to represent and warrant
that by owning from time to time any
beneficial interest in any American
Depositary Shares issued hereunder that it is
a person with Relevant Interest. Such
representations and warranties shall survive
the deposit and withdrawal of Shares and
issuance and cancellation or transfer of
Receipts. If any such representations or
warranties are false in any way, the
Company and the Depositary shall be
authorized, at the cost and expense of the
person depositing Shares, to take any and all
actions necessary to correct the
consequences thereof.
Each Owner and Beneficial Owner
hereby represents and warrants at all times
that their Receipts are not a holding or part
of a holding in which a person has a
Relevant Interest in Shares in breach of the
Constitution.
6. FILING PROOFS, CERTIFICATES,
AND OTHER INFORMATION.
Any person presenting Shares for
deposit or any Owner or any Beneficial
Owner of a Receipt may be required, and
every Owner and Beneficial Owner agrees,
from time to time to file with the Depositary
or the Custodian such proof of citizenship or
residence, taxpayer status, payment of all
applicable taxes or other governmental
charges, exchange control approval, legal or
beneficial ownership of ADSs and
Deposited Securities, compliance with
applicable laws and the terms of the Deposit
Agreement and the provisions of, or
governing, Deposited Securities, or such
information relating to the registration on
the books of the Company or the Foreign
Registrar, and to provide such other
information or documentation (or, in the
case of Shares in registered form presented
for deposit, such information relating to the
registration on the books of the Company or
of the approved agent of the Company for
the registration and transfer of Shares) as the
Depositary or the Custodian may deem
necessary or proper, if applicable, to execute
such certificates and to make such
representations and warranties, as the
Depositary may deem necessary or proper to
comply with applicable laws, regulations or
the Constitution or to enable the Depositary
to perform its obligations hereunder, or as
the Company may reasonably require by
written request to the Depositary. The
Depositary may withhold the delivery or
registration of transfer of any Receipt or the
distribution of any dividend or sale or
distribution of rights or of the proceeds
thereof or the delivery of any Deposited
Securities until such proof or other
information is filed or such certificates are
executed or such representations and
warranties made, or such other
documentation or information provided, to
the Depositarys satisfaction and, if such
document or information has been requested
by the Company, it shall be provided to the
Depositarys satisfaction consistent with
reasonable criteria requested of the
Depositary by the Company in writing. The
Depositary shall provide the Company,
upon its request, with copies of documents it
receives pursuant to this Paragraph and
Section 3. of the Deposit Agreement.
Nothing herein shall obligate the Depositary
to (i) obtain any information for the
Company if not provided by the Owners or
Beneficial Owners or (ii) verify or vouch for
the accuracy of the information provided by
the Owners or Beneficial Owners. No Share
shall be accepted for deposit unless
accompanied by evidence satisfactory to the
Depositary (which may be an opinion of
counsel satisfactory to the Depositary), that
any necessary approval has been granted by
any governmental body in New Zealand
which is then performing the function of the
regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees,
reasonable expenses and outofpocket
charges of the Depositary and those of any
Registrar only in accordance with
agreements in writing entered into between
the Depositary and the Company from time
to time. The Depositary shall present its
statement for such charges and expenses to
the Company once every three months. The
charges and expenses of the Custodian, any
coRegistrar or cotransfer agent are for the
sole account of the Depositary.
The following charges shall be
incurred by any party depositing or
withdrawing Shares or by any party
surrendering Receipts or to whom Receipts
are issued (including, without limitation,
issuance pursuant to a stock dividend or
stock split declared by the Company or an
exchange of stock regarding the Receipts or
Deposited Securities or a distribution of
Receipts pursuant to Section 4.3 of the
Deposit Agreement), or by Owners, as
applicable: (1) taxes and other
governmental charges, (2) such registration
fees as may from time to time be in effect
for the registration of transfers of Shares
generally on the Share register of the
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
Deposit Agreement, (3) such cable, telex
and facsimile transmission expenses as are
expressly provided in the Deposit
Agreement, (4) such expenses as are
incurred by the Depositary in the conversion
of foreign currency pursuant to Section 4.5
of the Deposit Agreement, (5) a fee of $5.00
or less per 100 American Depositary Shares
(or portion thereof) for the execution and
delivery of Receipts pursuant to Section 2.3,
4.3 or 4.4 of the Deposit Agreement and the
surrender of Receipts pursuant to
Section 2.5 or 6.2 of the Deposit
Agreement, (6) to the extent permitted by
the rules of any securities exchange on
which the American Depositary Shares may
be listed for trading, a fee not in excess of
$.02 or less per American Depositary Share
(or portion thereof) for any cash distribution
made pursuant to the Deposit Agreement,
including, but not limited to Sections 4.1
through 4.4 of the Deposit Agreement, (7) a
fee for the distribution of securities pursuant
to Section 4.2 of the Deposit Agreement,
such fee being in an amount equal to the fee
for the execution and delivery of American
Depositary Shares referred to above which
would have been charged as a result of the
deposit of such securities (for purposes of
this clause 7 treating all such securities as if
they were Shares) but which securities are
instead distributed by the Depositary to
Owners, and (8) any other charge payable
by the Depositary, any of the Depositarys
agents, including the Custodian, or the
agents of the Depositarys agents in
connection with the servicing of Shares or
other Deposited Securities (which charge
shall be assessed against Owners as of the
date or dates set by the Depositary in
accordance with Section 4.6 of the Deposit
Agreement and shall be payable at the sole
discretion of the Depositary by billing such
Owners for such charge or by deducting
such charge from one or more cash
dividends or other cash distributions).
The Depositary, subject to Paragraph
(8) hereof, may own and deal in any class of
securities of the Company and its affiliates
and in Receipts.
8. PRERELEASE OF RECEIPTS.
Notwithstanding Section 2.3 of the
Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the
receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement (PreRelease). The
Depositary may, pursuant to Section 2.5 of
the Deposit Agreement, deliver Shares upon
the receipt and cancellation of Receipts
which have been PreReleased, whether or
not such cancellation is prior to the
termination of such PreRelease or the
Depositary knows that such Receipt has
been PreReleased. The Depositary may
receive Receipts in lieu of Shares in
satisfaction of a PreRelease. Each
PreRelease will be (a) preceded or
accompanied by a written representation
from the person to whom Receipts are to be
delivered that such person, or its customer,
owns the Shares or Receipts to be remitted,
as the case may be, (b) at all times fully
collateralized with cash or such other
collateral as the Depositary deems
appropriate, (c) terminable by the
Depositary on not more than five (5)
business days notice, and (d) subject to such
further indemnities and credit regulations as
the Depositary deems appropriate. The
number of American Depositary Shares
which are outstanding at any time as a result
of PreReleases will not normally exceed
thirty percent (30%) of the Shares deposited
under the Deposit Agreement provided,
however, that the Depositary reserves the
right to change or disregard such limit from
time to time as it deems appropriate.
The Depositary may retain for its
own account any compensation received by
it in connection with the foregoing.
9. RESTRICTIONS UPON
OWNERSHIP.
(a) Each Owner and Beneficial
Owner of Receipts acknowledges and agrees
that (i) each Share, and the terms upon
which it is held by the Depositary, is subject
to and governed by the Constitution and the
provisions of Paragraph (9) of this Receipt
and Section 3.4 of the Deposit Agreement
shall apply notwithstanding any other
provision in this Receipt and the Deposit
Agreement to the contrary, (ii) except as
otherwise provided in the Constitution, such
Owners or Beneficial Owners Receipts
represent a Relevant Interest in Voting
Shares (as defined in the Constitution and
hereinafter referred to as Shares for
purposes of subparagraphs (a) to (g) of this
Paragraph (9)) (iii), (a) no person shall have
a Relevant Interest in 10 percent or more of
the total Shares outstanding other than in
accordance with the prior written approval
of the Kiwi Shareholder (as defined in the
Constitution) and the Board of Directors of
the Company (the Board) and (b) no person
other than a New Zealand National (as
defined in the Constitution) shall have a
Relevant Interest in more than 49.9 percent
of the total Shares outstanding, other than in
accordance with the prior written approval
of the Kiwi Shareholder (such limitations
being hereinafter referred to collectively as
the Limitation, and Shares designated by a
notice described in subparagraph (d) herein
as a Disenfranchisement Notice as being
declared to be held in breach of the
Limitation being hereinafter referred to as
Affected Shares), (iv) any Owner or
Beneficial Owner of Receipts or any other
person shall be bound by the Limitation, (v)
the Board and/or the Kiwi Shareholder may,
under the Constitution, enforce the
Limitation against the Depositary or the
Custodian or any of their respective
nominees (including without limitation,
causing the withdrawal of the right of the
Depositary or the Custodian or any of their
respective nominees to vote Affected
Shares, or causing a sale of all or part of the
Affected Shares), and (vi) each Owner or
Beneficial Owner of Receipts shall, on
behalf of the Depositary or Custodian,
provide information required by, and
comply with requests from the Company,
the Board or the Kiwi Shareholder to
provide information pursuant to New
Zealand law, the rules and requirements of
the New Zealand Stock Exchange, and any
other stock exchange on which the Shares
are, or will be, quoted, traded or listed or the
Constitution, including among other things,
information in such form as the Company,
the Board or the Kiwi Shareholder may
request as to the capacity in which such
Receipts or the Shares representing such
Receipts are owned or held, regarding the
identity and address of any person
(including such Owner or Beneficial Owner
of Receipts) having a Relevant Interest in
Shares by virtue of an interest in such
Receipts (such person or persons hereinafter
being referred to as a Beneficial Holder) and
the nature and extent of the interest of such
Beneficial Holder, and such other
particulars as will or are likely to assist in
identifying a Beneficial Holder with a
Relevant Interest in Shares and the nature of
that Relevant Interest.
(b) Every Owner and Beneficial
Owner of Receipts to whom a request is
made in accordance with the provisions of
subparagraph (a)(vi) shall ensure that the
Depositary is informed in writing of all
relevant information concerning whether
one or more persons have or may have a
Relevant Interest in Shares by virtue of an
interest in Receipts. The Depositary shall
forthwith pass on all such information to the
Company, unless otherwise instructed in
writing by the Company. The Depositary
agrees to use its reasonable efforts to
forward, upon the request of the Company,
and at the Companys expense, any such
request from the Company to the Owners
and to forward to the Company any such
responses to such requests received by the
Depositary.
(c) If the Depositary or its nominee
(or the Custodian or any nominee of the
Custodian) receives a notice that the Board
or the Kiwi Shareholder intends to declare
that certain Shares are Affected Shares, then
the Depositary shall send a copy of such
notice to the Beneficial Holder specified.
Such notice is hereafter referred to as an
Intention Notice. If the Board or the Kiwi
Shareholder does not specify a particular
Beneficial Holder, then such Intention
Notice shall apply to every Owner and the
Depositary shall forward such notice to
every Owner. Any Owner or Beneficial
Owner of Receipts or a person nominated by
an Owner or Beneficial Owner of Receipts
may make representations to the Board or
the Kiwi Shareholder (as the case may be)
for and on behalf of the Depositary or the
Custodian as the registered Shareholder as
to why such Shares should not be treated as
Affected Shares.
(d) If the Depositary or its nominee
(or the Custodian or any nominee of the
Custodian) as registered holder of any
Shares receives a notice from the Board or
the Kiwi Shareholder pursuant to the
Constitution stating that some or all of the
Shares have been declared to be Affected
Shares, (such notice being hereinafter
referred to as a Disenfranchisement Notice)
then the Depositary shall take the actions as
set forth in subparagraph (e) of this
Paragraph (9). The Company shall take all
reasonable steps to identify the Beneficial
Holder who has a Relevant Interest in
Shares in breach of the Limitation and shall
consult with the Depositary prior to
forwarding such Disenfranchisement
Notice.
(e) Following the receipt of a
Disenfranchisement Notice, the Depositary
shall give notice to each Beneficial Holder
whose name and address is specified in a
Disenfranchisement Notice, of the action
that is to be taken under subparagraph (e)
hereof and of the relevant matters provided
for in this Paragraph (9) and, if such
Beneficial Holder is specified in the
Disenfranchisement Notice, include in the
notice that such Beneficial Holder must also
act in accordance with subparagraph (f)
hereof, and the Depositary shall also deny
the voting instruction rights attaching to any
Receipt which represents Affected Shares (a
Relevant Receipt) to the extent that the
voting rights attaching to Affected Shares
represented by a Relevant Receipt are
denied to the Depositary or the Custodian or
their respective nominees as notified in the
Disenfranchisement Notice. If a
Disenfranchisement Notice does not specify
the name and address of a Beneficial Holder
then the Depositary shall give such notice to
all Owners and deny voting instruction
rights pro rata as to all outstanding Receipts.
(f) In the event a Beneficial Holder
receives a notification that he has an interest
in Shares which are declared to be Affected
Shares, he shall immediately take all such
steps as may be required to become the
registered Owner of the Relevant Receipts
on the books of the Depositary.
(g) (i) If the Disenfranchisement
Notice does not state the number of Shares
to which it applies, then the total number of
the Shares represented by the total number
of Receipts held by a named Beneficial
Holder shall be deemed to be Affected
Shares (ii) if the Disenfranchisement Notice
identifies the number of Affected Shares
and relates them to one or more specified
Beneficial Holders, then the provisions of
this Paragraph (9) shall apply to the number
of Receipts in the name of each such
specified Beneficial Holder or Beneficial
Holders representing that number of
Affected Shares, and (iii) neither the Board
nor the Kiwi Shareholder shall be under any
obligation to make any statement in a
Disenfranchisement Notice concerning the
matters referred to in this subparagraph (g),
but the Board or Kiwi Shareholder may
make a statement in the Disenfranchisement
Notice which combines the effect of the
matters set forth above.
(h) Under the Constitution the Board
and the Kiwi Shareholder have the authority
to sell the Affected Shares for the account of
the registered holder. Prior to selling such
Affected Shares the Company shall consult
with the Depositary. In addition, if the
Company becomes aware that the Kiwi
Shareholder is intending to sell such
Affected Shares, the Company will request
that the Kiwi Shareholder consult with the
Depositary. If any Shares underlying any
Relevant Receipt are sold by the Board or
the Kiwi Shareholder, in accordance with
such authority, such Relevant Receipt shall
thenceforth represent only the right to
receive any cash received by the Depositary
in respect thereof, less the fees of the
Depositary for cancellation of such Relevant
Receipt and any expenses incurred or paid
by the Depositary in distributing such cash
to the Beneficial Holder of such Receipt,
plus any unsold Shares and other property
otherwise unaffected by this Paragraph (9).
The Board shall notify the Depositary
forthwith upon the sale of any Affected
Shares by it and shall request the Kiwi
Shareholder to make such a notification
upon the sale of any Affected Shares by the
Kiwi Shareholder (a Sale Notification) and
upon the settlement of such sale shall send
to the Depositary the cash proceeds of any
such sale, net of the expenses of such sale
and transmittal. The Depositary shall give
notice of such sale forthwith upon receipt of
the Sale Notification to any Beneficial
Holder whose name and address is specified
in such Sale Notification as having an
interest in the Shares sold or if no Beneficial
Holder is so specified then to all Owners.
Forthwith upon receipt of such notice, such
Beneficial Holder shall surrender the
Relevant Receipt for cancellation and, if
applicable, issuance of a new Receipt. The
Depositary shall, upon (1) receipt of the
cash proceeds, and (2) surrender of the
Relevant Receipt for cancellation, send such
net amount of cash (less any applicable fees
and expenses of the Depositary) and issue
and forward with such net cash a new
Receipt representing any unsold deposited
Shares and other property otherwise
unaffected to the Owner of the Receipt
surrendered. Upon issuance of a new
Receipt, the Depositary shall simultaneously
cancel on its books the Receipts
surrendered.
(i) The Company agrees with the
Depositary that the Board shall not sell any
Affected Shares as described in Paragraph
(9)(h) hereof and Section 3.4(h) of the
Deposit Agreement, and further agrees with
the Depositary to use its reasonable efforts
to obtain the consent of the Kiwi
Shareholder not to sell any Affected Shares
as so described, without in each case first
delivering to the Depositary a notice which
specifies the number of Affected Shares and
the name and address of the Beneficial
Holder of the relevant Receipts.
In the event that upon the sale of
Affected Shares by the Kiwi Shareholder
the Depositary has not received a notice
which identifies a specific Beneficial
Holder, then the Depositary shall
immediately thereafter:
(1)notify all Owners that
their Receipts, on and after the date
of such sale of Affected Shares,
represent their prorata share of the
remaining deposited Shares
specifying the amount of Shares
represented by each American
Depositary Share outstanding on and
after such date and on and after such
date each American Depositary
Share shall represent such number of
Shares
(2)upon receipt of the cash
proceeds of any such sale of
Affected Shares, distribute such cash
proceeds pro rata to all Owners and
otherwise in accordance with
Sections 4.1 and 4.6 of the Deposit
Agreement and
(3)upon surrender of any
Receipt on and after such date,
subject to the provisions of this
Receipt and the Deposit Agreement,
deliver the amount of Shares per
American Depositary Share
surrendered as specified in the notice
described in (1) above.
(j) The Depositary and each Owner
and Beneficial Owner of Receipts agrees
with the Company for itself and for the
Board and the Kiwi Shareholder to take
every reasonable step in accordance with
any Intention Notice, Disenfranchisement
Notice, Sale Notification or any other notice
or request issued pursuant to this Paragraph
(9) to ensure that the provisions of this
Paragraph (9) are effective, together with
any notice issued by the Board or the Kiwi
Shareholder which modifies or withdraws a
notice or request formerly issued, forthwith
upon its receipt provided however that, no
such notice may materially increase the
Depositarys duties under the Deposit
Agreement and under the Deposit
Agreement without its written consent
unless such duties are contemplated under
the Deposit Agreement and under the
Deposit Agreement expressly or by
necessary implication.
(k) Except to the extent (if at all) as
is provided in the Constitution, the Board
and the Kiwi Shareholder shall be under no
obligation to give, modify or withdraw a
Disenfranchisement Notice and shall have
no liability whatsoever to any Person in
respect of any of the foregoing. Nothing in
either this Receipt (including this Paragraph
(9)) or the Deposit Agreement (including
Section 3.4 of the Deposit Agreement) shall
limit any right or remedy which the
Company, the Board and Kiwi Shareholder
may have under the Constitution or under
any law.
(l) Any resolution or determination
of, or decision or exercise of any discretion
or power by, the Company, the Board, the
Kiwi Shareholder or the Depositary under or
pursuant to the Constitution or this
Paragraph (9) shall be final and conclusive
and binding on any Owner, Beneficial
Owner of a Receipt or other person thereby
affected and shall not be open to challenge,
whether as to its validity or otherwise, or on
any ground whatsoever. Neither the
Company, the Board, the Kiwi Shareholder,
the Depositary, the Custodian, the Registrar
nor the Foreign Registrar shall have any
liability whatsoever to any such Owner,
Beneficial Owner of a Receipt or person,
including but not limited to any Beneficial
Holder, who fails to act in accordance with
such provisions or who is affected by any
decision or exercise of any discretion or
power by the Company, the Board, the Kiwi
Shareholder, the Depositary, the Custodian,
the Registrar or the Foreign Registrar.
(m) Under New Zealand law,
persons who hold a relevant interest (as
defined in the Securities Markets Act 1988
(New Zealand)) in 5% or more of the
securities of the Company (including
persons who hold such an interest through
the holding of Receipts) are required to give
written notice of their interest and certain
changes in their interest to the Company,
and to the New Zealand Stock Exchange as
soon as the person knows or ought to know
of their relevant interest exceeding the 5%
threshold or the change. Disclosure to the
Australian Stock Exchange and the
Company is also required in similar
circumstances by the Corporations Act 2001
(Australia). If any Owner or Beneficial
Owner fails to comply with the
requirements of the Securities Markets Act
1988 (New Zealand) or Part 6C of the
Corporations Act 2001 (Australia), any
penalty attaching to the Shares held under
this Agreement shall apply (with all
necessary changes) to rights attaching to the
Receipts evidencing American Depositary
Shares representing such Shares.
10. TITLE TO RECEIPTS.
It is a condition of this Receipt and
every successive holder and Owner of this
Receipt by accepting or holding the same
consents and agrees, that, subject to the
limitations contained herein and in the
Receipt, title to this Receipt when properly
endorsed or accompanied by proper
instruments of transfer, is transferable by
delivery with the same effect as in the case
of a negotiable instrument, provided,
however, that the Depositary,
notwithstanding any notice to the contrary,
and except where provided otherwise in this
Receipt and in the Deposit Agreement, may
treat the person in whose name this Receipt
is registered on the books of the Depositary
as the absolute owner hereof for the purpose
of determining the person entitled to
distribution of dividends or other
distributions or to any notice provided for in
the Deposit Agreement and for all other
purposes.
11. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to
any benefits under the Deposit Agreement
or be valid or obligatory for any purpose,
unless this Receipt shall have been executed
by the Depositary by the manual or
facsimile signature of a duly authorized
signatory of the Depositary and, if a
Registrar for the Receipts shall have been
appointed, countersigned by the manual or
facsimile signature of a duly authorized
officer of the Registrar.
12. REPORTS INSPECTION OF
TRANSFER BOOKS.
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 by the
periodic reporting requirements of the
Securities Exchange Act of 1934, as from
time to time amended. Such reports and
communications will be available for
inspection and copying at the public
reference facilities maintained by the
Commission located at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The Depositary will make available
for inspection by Owners of Receipts at its
Corporate Trust Office any reports and
communications, including any proxy
soliciting material, received from the
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
send to Owners of Receipts copies of such
reports when furnished by the Company
pursuant to the Deposit Agreement.
The Depositary will keep books for
the registration of Receipts and transfers of
Receipts which at all reasonable times shall
be open for inspection by the Company and
the Owners of Receipts provided that such
inspection shall not be for the purpose of
communicating with Owners of Receipts in
the interest of a business or object other than
the business of the Company or a matter
related to the Deposit Agreement or the
Receipts.
13. DIVIDENDS AND
DISTRIBUTIONS.
Whenever the Depositary or the
Custodian receives any cash dividend or
other cash distribution on any Deposited
Securities, the Depositary will, subject to
the provisions of Paragraph (14) hereof,
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 Section 5.9 of the
Deposit Agreement) to the Owners of
Receipts entitled thereto, provided,
however, that in the event that the Company
or the Depositary is required to withhold
and does withhold from any cash dividend
or other cash distribution in respect of any
Deposited Securities an amount on account
of taxes, duties or other governmental
charges, the amount distributed to the
Owners of the Receipts evidencing
American Depositary Shares representing
such Deposited Securities shall be reduced
accordingly.
Subject to the provisions of Section
4.11 and 5.9, if applicable, of the Deposit
Agreement, whenever the Depositary
receives any distribution other than a
distribution described in Sections 4.1, 4.3 or
4.4 of the Deposit Agreement, the
Depositary will cause the securities or
property received by it to be distributed to
the Owners of Receipts entitled thereto,
after deduction or upon payment of any fees
and expenses of the Depositary or any taxes
or other governmental charges, in any
manner that the Depositary may deem
equitable and practicable for accomplishing
such distribution provided, however, that if
in the opinion of the Depositary such
distribution cannot be made proportionately
among the Owners of Receipts entitled
thereto, or if for any other reason the
Depositary deems such distribution not to be
feasible, the Depositary may adopt such
method as it may deem equitable and
practicable for the purpose of effecting such
distribution, including, but not limited to,
the public or private sale of the securities or
property thus received, or any part thereof,
and the net proceeds of any such sale (net of
the fees and expenses of the Depositary as
provided in Section 5.9 of the Deposit
Agreement) shall be distributed by the
Depositary to the Owners of Receipts
entitled thereto as in the case of a
distribution received in cash.
If any distribution consists of a
dividend in, or free distribution of, Shares,
the Depositary may, with the Companys
approval, and shall if the Company shall so
request, distribute to the Owners of
outstanding Receipts entitled thereto,
additional Receipts evidencing an aggregate
number of American Depositary Shares
representing the amount of Shares received
as such dividend or free distribution subject
to the terms and conditions of the Deposit
Agreement with respect to the deposit of
Shares and the issuance of American
Depositary Shares evidenced by Receipts,
including the withholding of any tax or
other governmental charge as provided in
Section 4.11 of the Deposit Agreement and
the payment of the fees of the Depositary as
provided in Section 5.9 of the Deposit
Agreement. In lieu of delivering Receipts
for fractional American Depositary Shares
in any such case, the Depositary will sell the
amount of Shares represented by the
aggregate of such fractions and distribute
the net proceeds, all in the manner and
subject to the conditions set forth in the
Deposit Agreement. If additional Receipts
are not so distributed, each American
Depositary Share shall thenceforth also
represent the additional Shares distributed
upon the Deposited Securities represented
thereby.
In the event that the Depositary
determines that any distribution in property
in respect of the Deposited Securities
(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 and the balance of any such
property to the Owners of Receipts entitled
thereto.
14. CONVERSI0N 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 reasonable judgment of
the Depositary be converted on a reasonable
basis into Dollars and the resulting Dollars
transferred to the United States, the
Depositary shall convert or cause to be
converted, by sale or in any other manner
that it may determine, such foreign currency
into Dollars, and such Dollars shall be
distributed to the Owners entitled thereto or,
if the Depositary shall have distributed any
warrants or other instruments which entitle
the holders thereof to such Dollars, then to
the holders of such warrants and/or
instruments upon surrender thereof for
cancellation. Such distribution may be
made upon an averaged or other practicable
basis without regard to any distinctions
among Owners on account of exchange
restrictions, the date of delivery of any
Receipt or otherwise and shall be net of any
expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.9
of the Deposit Agreement.
If such conversion or distribution
can be effected only with the approval or
license of any government or agency
thereof, the Depositary shall file such
application for approval or license, if any, as
it may deem desirable.
If at any time the Depositary shall
determine that in its reasonable judgment
any foreign currency received by the
Depositary is not convertible on a
reasonable basis into Dollars transferable to
the United States, or if any approval or
license of any government or agency thereof
which is required for such conversion is
denied or in the reasonable 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.
15. RIGHTS.
In the event that the Company shall
offer or cause to be offered to the holders of
any Deposited Securities any rights to
subscribe for additional Shares or any rights
of any other nature, the Depositary shall
have discretion as to the procedure to be
followed in making such rights available to
any Owners or in disposing of such rights
on behalf of any Owners and making the net
proceeds available in Dollars 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 provided, however,
if at the time of the offering of any rights the
Depositary determines in its discretion that
it is lawful and feasible to make such rights
available to all Owners or to certain Owners
but not to other Owners, the Depositary
may, if instructed by the Company,
distribute, to any Owner to whom it
determines the distribution to be lawful and
feasible, in proportion to the number of
American Depositary Shares held by such
Owner, warrants or other instruments
therefor in such form as it deems
appropriate. If the Depositary determines in
its discretion that it is not lawful and
feasible to make such rights available to
certain Owners, it shall use reasonable
efforts to sell the rights or warrants or other
instruments in proportion to the number of
American Depositary Shares held by the
Owners to whom it has determined it may
not lawfully or feasibly make such rights
available, and allocate the net proceeds of
such sales (net of the fees of the Depositary
as provided in Section 5.9 of the Deposit
Agreement and all applicable taxes and
governmental charges) for the account of
such Owners otherwise entitled to such
rights, warrants or other instruments, upon
an averaged or other practical basis without
regard to any distinctions among such
Owners because of exchange restrictions or
the date of delivery of any Receipt or
otherwise. The Depositary shall not be
responsible for any failure to determine that
it may be lawful or feasible to make such
rights available to Owners in general or any
Owner in particular.
If an Owner of Receipts requests the
distribution of warrants or other instruments
in order to exercise the rights allocable to
the American Depositary Shares of such
Owner 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. Upon instruction pursuant
to such warrants or other instruments to the
Depositary from such Owner to exercise
such rights, upon payment by such Owner to
the Depositary for the account of such
Owner of an amount equal to the purchase
price of the Shares to be received upon the
exercise of the rights, and upon payment of
the fees 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 2.2 of the Deposit Agreement, and
shall, pursuant to Section 2.3 of the Deposit
Agreement, execute and deliver to such
Owner Restricted Receipts.
If registration under the Securities
Act of 1933 of the securities to which any
rights relate is required in order for the
Company to offer such rights to Owners and
sell the securities upon the exercise of such
rights, the Depositary will not offer such
rights to the Owners unless and until such a
registration statement is in effect, or unless
the offering and sale of such securities to the
Owners of such Receipts are exempt from
registration under the provisions of such Act
and an opinion of counsel satisfactory to the
Depositary and the Company has been
obtained.
16. RECORD DATES.
Whenever any cash dividend or
other cash distribution shall become payable
or any distribution other than cash shall be
made, or whenever rights shall be issued
with respect to the Deposited Securities, or
whenever for any reason the Depositary
causes a change in the number of Shares
that are represented by each American
Depositary Share, or whenever the
Depositary shall receive notice of any
meeting of holders of Shares or other
Deposited Securities, the Depositary shall
fix a record date (a) for the determination of
the Owners of Receipts who shall be (i)
entitled to receive such dividend,
distribution or rights or the net proceeds of
the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights
at any such meeting, or (b) on or after which
each American Depositary Share will
represent the changed number of Shares,
subject to the provisions of the Deposit
Agreement.
17. VOTING OF DEPOSITED
SECURITIES.
Upon receipt of notice of any
meeting of holders of Shares, 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 approved by the Company, which shall
contain (a) such information as is contained
in such notice of meeting, (b) a statement
that the Owners as of the close of business
on a specified Record Date, set by the
Depositary, will be entitled, subject to any
applicable provision of the laws of New
Zealand and of the Constitution to instruct
the Depositary as to the exercise of the
voting rights, if any, in the event a poll is
called pertaining to the amount of Shares
represented by their respective American
Depositary Shares, and to demand a poll,
and a brief statement as to the manner in
which such instructions may be given, and
(c) a statement that if a poll is called and no
instructions as to voting are received by the
Depositary from any Owner with respect to
any of the Shares represented by the
American Depositary Shares evidenced by
such Owners Receipts on or before the date
established by the Depositary for such
purpose (Receipt Date), then the Depositary
will not vote or cause such Shares to be
voted. The Depositary may only vote such
Shares in the event a poll, as referred to the
Constitution, is called. Upon the written
request of an Owner, who was an Owner on
the Record Date referred to in Paragraph (b)
above, received on or before the Receipt
Date, and in the event a poll is called, the
Depositary shall endeavor in so far as
practicable to vote or cause to be voted, the
amount of Shares represented by such
Receipt in accordance with the instructions
set forth in such request.
The Depositary shall not vote or
attempt to exercise the right to vote that
attaches to the Shares, other than in
accordance with such instructions. Shares
or other Deposited Securities represented by
American Depositary Shares for which no
specific voting instructions are received by
the Depositary from the Owner shall not be
voted
Unless specifically instructed by at
least 5 Owners or Beneficial Owners of
Receipts (and a certificate from an Owner of
Receipts giving the number of holders who
have made such request shall be sufficient
for these purposes) evidencing American
Depositary Shares which represent Shares
having the right to vote at a meeting, or by
Owners of Receipts in respect of American
Depositary Shares representing Shares:
(a) which represent not less than
onetenth of the total voting rights capable of
being cast at such meeting or
(b) which confer a right to vote at
such meeting and on which an aggregate
sum has been paid up equal to not less than
onetenth of the total sum paid up on all the
Shares conferring such right to vote at such
meeting, the Depositary shall not demand a
poll at a meeting. In order that the
Depositary may demand a poll, the
Depositary will cause the Custodian to hold
deposited Shares in no less than 5 different
names in the transfer books of the Company
or the Foreign Registrar.
Such voting of Shares is subject to
the provisions of Paragraph (9) of this
Receipt and Section 3.4 of the Deposit
Agreement.
In the event the Depositary holds
Deposited Securities other than Shares to
which voting rights attach, the Depositary
shall not exercise the right to vote such
Deposited Securities and shall confer with
the Company as to the appropriate course of
action with respect to such Deposited
Securities.
There can be no assurance that
Owners generally or any Owner in
particular will receive the notice described
above with sufficient time to enable the
Owner to return voting instructions in time
to ensure that the Depositary will vote the
Shares or Deposited Securities in
accordance with the provisions set forth
above.
18. CHANGES AFFECTING
DEPOSITED SECURITIES.
In circumstances where the
provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any splitup,
consolidation, or any other reclassification
of Deposited Securities, or upon any
recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the
Company or to which it is a party, any
securities which shall be received by the
Depositary or a Custodian in exchange for
or in conversion of or in respect of
Deposited Securities shall be treated as new
Deposited Securities under the Deposit
Agreement, and American Depositary
Shares shall thenceforth represent the new
Deposited Securities so received in respect
of Deposited Securities, unless additional
Receipts are delivered pursuant to the
following sentence. In any such case the
Depositary may, with the Companys
approval 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. Notwithstanding
the foregoing, in the event that any security
so received may not be lawfully distributed
to some or all Owners, the Depositary may,
with the Companys approval, and shall, if
the Company requests, subject to receipt of
an opinion of Companys counsel
satisfactory to the Depositary that such
action is not in violation of any applicable
laws or regulations, sell such securities at
public or private sale, at such place or places
and upon such terms as it may deem proper
and may allocate the net proceeds of such
sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b)
taxes) for the account of the Owners
otherwise entitled to such securities upon an
averaged or other practicable basis without
regard to any distinctions among such
Owners and distribute the net proceeds so
allocated to the extent practicable as in the
case of a distribution received in cash
pursuant to Section 4.1 of the Deposit
Agreement. The Depositary shall not be
responsible for (i) any failure to determine
that it may be lawful or feasible to make
such securities available to Owners in
general or to any Owner in particular, (ii)
any foreign exchange exposure or loss
incurred in connection with such sale, or
(iii) any liability to the purchaser of such
securities.
19. 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 Beneficial Owner of any Receipt,
if by reason of any provision of any present
or future law or regulation of the United
States or any other country, or of any
governmental or regulatory authority or
stock exchange, or by reason of any
provision, present or future, of the
Constitution, 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 (including, without
limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions,
explosions and computer failure), the
Depositary or the Company or any of their
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 nor shall the Depositary
or the Company or any of their respective
directors, officers, employees, agents or
affiliates incur any liability to any Owner or
Beneficial Owner of any Receipt by reason
of any nonperformance 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, or by reason of any
exercise of, or failure to exercise, any
discretion provided for in the Deposit
Agreement or in the Constitution or
provisions of or governing the Deposited
Securities. 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 Beneficial Owner of any Receipt
for the inability by an Owner or Beneficial
Owner to benefit from any distribution,
offering, right or other benefit which is
made available to holders of Deposited
Securities but is not, under the terms of the
Deposit Agreement, made available to
Owners of American Depositary Shares.
Where, by the terms of a distribution
pursuant to Sections 4.1, 4.2, or 4.3 of the
Deposit Agreement, or an offering or
distribution pursuant to Section 4.4 of the
Deposit Agreement, 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.
The Company and its directors,
officers, employees, agents, or affiliates
assume no obligation nor shall they be
subject to any liability under the Deposit
Agreement or the Receipts to Owners or
Beneficial Owners of Receipts or to other
persons, except that they agree to perform
their respective obligations specifically set
forth in the Deposit Agreement without
negligence or bad faith. The Depositary and
its directors, officers, employees, agents, or
affiliates assume no obligation nor shall
they be subject to any liability under the
Deposit Agreement or the Receipt to any
Owner or Beneficial Owners of any Receipt
or to other persons (including, without
limitation, liability with respect to the
validity or worth of the Deposited
Securities), except that they agree to
perform their respective obligations
specifically set forth in the 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 Receipts,
which in its opinion may involve it in
expense or liability, unless indemnity
satisfactory to it against all expense and
liability shall be furnished as often as may
be required, and the Custodian shall not be
under any obligation whatsoever with
respect to such proceedings, the
responsibility of the Custodian being solely
to the Depositary. Neither the Depositary
nor the Company 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, any Beneficial
Owner or authorized representative thereof,
or any other person believed by it in good
faith to be competent to give such advice or
information, or for any consequential or
punitive damages. The Depositary, its
controlling persons, its agents, any
Custodian and the Company, its controlling
persons and its agents may rely and shall be
protected in acting upon any written notice,
request or other document believed by it to
be genuine and to have been signed or
presented by the proper party or parties. The
Depositary shall not be liable for any acts or
omissions made by a successor depositary
whether in connection with a previous act or
omission of the Depositary or in connection
with any matter arising wholly after the
removal or resignation of the Depositary,
provided that in connection with the issue
out of which such potential liability arises
the Depositary performed its obligations
without negligence or bad faith while it
acted as Depositary. The Depositary shall
not be responsible for any failure to carry
out any instructions to vote any of the
Deposited Securities, or for the manner in
which any such vote is cast or the effect of
any such vote, provided that any such action
or nonaction is in good faith.
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 of counsel) which may
arise out of any registration with the
Commission of Receipts, American
Depositary Shares or Deposited Securities
or the offer or sale thereof in the United
States or out of acts performed or omitted,
in accordance with the provisions of the
Deposit Agreement and of the Receipts, as
the same may be amended, modified, or
supplemented from time to time, (i) by any
Depositary or a Custodian or their
respective directors, employees, agents and
affiliates, except for any liability or expense
arising out of the negligence or bad faith of
either of them, or (ii) by the Company or
any of its directors, employees, agents and
affiliates. The Depositary agrees to
indemnify the Company, its directors,
officers, employees, agents and affiliates
and hold them harmless from any liability or
expense (including, but not limited to the
reasonable fees and expenses of counsel)
which may arise out of acts performed or
omitted by the Depositary or its Custodian
or coRegistrars or cotransfer agents or their
respective directors, officers, employees,
agents and affiliates due to their negligence
or bad faith.
No disclaimer of liability under the
Securities Act of 1933 or the Securities Act
1978 (New Zealand), if applicable, is
intended by any provision of the Deposit
Agreement.
20. RESIGNATION AND REMOVAL
OF THE DEPOSITARY
APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time
resign as Depositary under the Deposit
Agreement and this Receipt 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 90
days prior written notice of such removal,
which shall become effective upon the later
to occur of (i) the 90th day after delivery of
the notice to the Depositary or (ii) effective
upon the appointment of a successor
depositary and its acceptance of such
appointment as hereinafter provided
provided, however that the Depositary and
the Company may agree that the removal
become effective upon an earlier date, and
neither the Depositary nor the Company
shall unreasonably withhold its respective
agreement to the removal becoming
effective upon an earlier date if this is
proposed by the other. Whenever the
Depositary in its discretion determines that
it is in the best interest of the Owners of
Receipts to do so, it may appoint a substitute
or additional custodian or custodians.
21. AMENDMENT.
The form of the Receipts and any
provisions of the Deposit Agreement may at
any time and from time to time be amended
by agreement between the Company and the
Depositary in any respect which they may
deem necessary or desirable. Any
amendment which shall impose or increase
any fees or charges (other than taxes and
other governmental charges registration
fees, cable, telex or facsimile transmission
costs, delivery costs or other such
expenses), or which shall otherwise
prejudice any substantial existing right of
Owners of Receipts, shall, however, not
become effective (subject to the last
sentence of this Paragraph) as to outstanding
Receipts until the expiration of thirty days
after notice of such amendment shall have
been given to the Owners of outstanding
Receipts. Every Owner and Beneficial
Owner of a Receipt at the time any
amendment so becomes effective shall be
deemed, by continuing to hold such Receipt,
to consent and agree to such amendment and
to be bound by the Deposit Agreement as
amended thereby. In no event shall any
amendment impair the right of the Owner of
any Receipt to surrender such Receipt and
receive therefor the Deposited Securities
represented thereby except in order to
comply with mandatory provisions of
applicable law. Notwithstanding the
foregoing, if any governmental body should
adopt new laws, rules or regulations or the
Constitution is amended which would
require amendment or supplement of the
Deposit Agreement to ensure compliance
therewith, the Company and the Depositary
may amend or supplement the Deposit
Agreement and the Receipts at any time in
accordance with such changed laws, rules or
regulations. Such amendment or
supplement to the Deposit Agreement in the
circumstances may become effective before
or without any notice of such amendment or
supplement is given to Owners or within
any period of time as required for
compliance with such laws, rules or
regulations.
22. TERMINATION OF DEPOSIT
AGREEMENT.
The Depositary shall at any time at
the direction of the Company terminate the
Deposit Agreement by mailing notice of
such termination to the Owners of all
Receipts then outstanding at least 30 days
prior to the date fixed in such notice for
such termination. The Depositary may
likewise terminate the Deposit Agreement
by mailing notice of such termination to the
Company and the Owners of all Receipts
then outstanding if at any time 90 days shall
have expired after the Depositary shall have
delivered to the Company a written notice of
its election to resign and a successor
depositary shall not have been appointed
and accepted its appointment as provided in
the Deposit Agreement. On and after the
date of termination, the Owner of a Receipt,
upon surrender of such Receipt at the
Corporate Trust Office of the Depositary,
upon payment of the fee of the Depositary
for the surrender of Receipts referred to in
Section 2.5 of the Deposit Agreement, and
upon payment of any applicable taxes or
governmental charges, will be entitled to
delivery, to him or upon his order, of the
amount of Deposited Securities represented
by such Receipt. If any Receipts shall
remain outstanding after the date of
termination, the Depositary thereafter shall
discontinue the registration of transfers of
Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall
not give any further notices or perform any
further acts under the Deposit Agreement,
except that the Depositary shall continue to
collect dividends and other distributions
pertaining to Deposited Securities, shall sell
rights as provided in the Deposit
Agreement, and shall continue to deliver
Deposited Securities, together with any
dividends or other distributions received
with respect thereto and the net proceeds of
the sale of any rights or other property, in
exchange for Receipts surrendered to the
Depositary (after deducting, in each case,
the fee of the Depositary for the surrender of
a Receipt, any expenses for the account of
the Owner of such Receipt in accordance
with the terms and conditions of the Deposit
Agreement, and any applicable taxes or
governmental charges). At any time after
the expiration of one year from the date of
termination, the Depositary may sell the
Deposited Securities then held under the
Deposit Agreement and may thereafter hold
uninvested the net proceeds of any such
sale, together with any other cash then held
by it thereunder, unsegregated and without
liability for interest, for the pro rata benefit
of the Owners of Receipts which have not
theretofore been surrendered, such Owners
thereupon becoming general creditors of the
Depositary with respect to such net
proceeds. After making such sale, the
Depositary shall be discharged from all
obligations under the Deposit Agreement,
except to account for such net proceeds and
other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the
Owner of such Receipt in accordance with
the terms and conditions of the Deposit
Agreement, and any applicable taxes or
governmental charges) and except for its
obligations under Section 5.8 of the Deposit
Agreement. Upon the termination of the
Deposit Agreement, the Company shall be
discharged from all obligations under the
Deposit Agreement except for its
obligations to the Depositary with respect to
indemnification, charges, and expenses.
23. COMPLIANCE WITH U.S.
SECURITIES LAWS.
Notwithstanding any terms of this
Receipt or the Deposit Agreement to the
contrary, the Company and the Depositary
have each agreed that it will not exercise
any rights it has under the Deposit
Agreement or the Receipt to prevent the
withdrawal or delivery of Deposited
Securities in a manner which would violate
the United States securities laws, including,
but not limited to Section I A(1) of the
General Instructions to the Form F6
Registration Statement, as amended from
time to time, under the Securities Act of
1933.
24. SUBMISSION TO JURISDICTION
APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS.
The Company hereby (i) irrevocably
designates and appoints CT Corporation,
now at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in the State of New York, as
the Companys 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
the 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.
25. UNCERTIFICATED AMERICAN
DEPOSITARY SHARES DTC DIRECT
REGISTRATION SYSTEM.
Notwithstanding anything to the
contrary in the Deposit Agreement:
(a)American Depositary Shares may
be certificated securities evidenced by
Receipts or uncertificated securities. The
form of Receipt annexed as Exhibit A to the
Deposit Agreement summarizes the terms
and conditions of, and will be the prospectus
required under the Securities Act of 1933
for, both certificated and uncertificated
American Depositary Shares. Except for
those provisions of the Deposit Agreement
that by their nature do not apply to
uncertificated American Depositary Shares,
all the provisions of the Deposit Agreement
shall apply, mutatis mutandis, to both
certificated and uncertificated American
Depositary Shares.
(b)(i)The term deliver, or its noun
form, when used with respect to Receipts,
shall mean (A) bookentry transfer of
American Depositary Shares to an account
at The Depository Trust Company, or its
successor (DTC), designated by the person
entitled to such delivery, evidencing
American Depositary Shares registered in
the name requested by that person, (B)
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 (C) 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.
(ii)The term surrender, when used
with respect to Receipts, shall mean (A) one
or more bookentry transfers of American
Depositary Shares to the DTC account of
the Depositary, (B) delivery to the
Depositary at its Corporate Trust Office of
an instruction to surrender American
Depositary Shares not evidenced by a
Receipt or (C) surrender to the Depositary
at its Corporate Trust Office of one or more
Receipts evidencing American Depositary
Shares.
(c)American Depositary Shares not
evidenced by Receipts shall be transferable
as uncertificated registered securities under
the laws of New York.
(d)The Depositary shall have a duty
to register a transfer, in the case of
uncertificated American Depositary Shares,
upon receipt from the Owner of a proper
instruction (including, for the avoidance of
doubt, instructions through DRS and Profile
as provided in subsection (f) below). The
Depositary, upon surrender of a Receipt for
the purpose of exchanging it 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 subsection (f) below) from
the Owner of uncertificated American
Depositary Shares for the purpose of
exchanging them for certificated American
Depositary Shares, shall execute and deliver
to the Owner a Receipt evidencing the same
number of certificated American Depositary
Shares.
(e)Upon satisfaction of the
conditions for replacement of a Receipt that
is mutilated, lost, destroyed or stolen, the
Depositary shall deliver to the Owner the
American Depositary Shares evidenced by
that Receipt in uncertificated form unless
otherwise requested by the Owner.
(f)(i) 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.
(ii) 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 (i) above
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 5.3 and 5.8
of the Deposit Agreement shall apply to the
matters arising from the use of the DRS.
The parties agree that the Depositarys
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.
900354_1.DOCi
