Exhibit 1
[EXECUTION COPY]
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NOVOGEN LIMITED
(ACN 063 259 754)
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of February 23, 1998
As Amended and Restated as of December 29, 1998
As Further Amended and Restated as of _______________, 2005
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1. DEFINITIONS.................................................................4
SECTION 1.1 AMERICAN DEPOSITARY SHARES................................4
SECTION 1.2 COMMISSION................................................4
SECTION 1.3 CUSTODIAN.................................................4
SECTION 1.4 DEPOSIT AGREEMENT.........................................5
SECTION 1.5 DEPOSITARY; CORPORATE TRUST OFFICE........................5
SECTION 1.6 DEPOSITED SECURITIES......................................5
SECTION 1.7 DOLLARS...................................................5
SECTION 1.8 FOREIGN REGISTRAR.........................................6
SECTION 1.9 ISSUER....................................................6
SECTION 1.10 OWNER.....................................................6
SECTION 1.11 RECEIPTS..................................................6
SECTION 1.12 REGISTRAR.................................................6
SECTION 1.13 RESTRICTED RECEIPTS.......................................7
SECTION 1.14 RESTRICTED SECURITIES.....................................7
SECTION 1.15 SECURITIES ACT OF 1933....................................7
SECTION 1.16 SECURITIES EXCHANGE ACT OF 1934...........................7
SECTION 1.17 SHARES....................................................8
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.................................................8
SECTION 2.1 FORM AND TRANSFERABILITY OF RECEIPTS......................8
SECTION 2.2 DEPOSIT OF SHARES.........................................9
SECTION 2.3 EXECUTION AND DELIVERY OF RECEIPTS.......................11
SECTION 2.4 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP
OF RECEIPTS............................................11
SECTION 2.5 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES...........12
SECTION 2.6 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS..............................15
SECTION 2.7 LOST RECEIPTS, ETC.......................................15
SECTION 2.8 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS.....15
SECTION 2.9 PRE-RELEASE OF RECEIPTS..................................16
3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS..................................16
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION........17
SECTION 3.2 LIABILITY OF OWNER FOR TAXES.............................17
SECTION 3.3 WARRANTIES ON DEPOSIT OF SHARES..........................18
4. THE DEPOSITED SECURITIES...................................................18
SECTION 4.1 CASH DISTRIBUTIONS.......................................18
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS..........19
SECTION 4.3 DISTRIBUTIONS IN SHARES..................................19
SECTION 4.4 RIGHTS...................................................20
SECTION 4.5 CONVERSION OF FOREIGN CURRENCY...........................22
SECTION 4.6 FIXING OF RECORD DATE....................................23
SECTION 4.7 VOTING OF DEPOSITED SECURITIES...........................24
SECTION 4.8 CHANGES AFFECTING DEPOSITED SECURITIES...................25
SECTION 4.9 REPORTS..................................................25
SECTION 4.10 LISTS OF OWNERS..........................................26
SECTION 4.11 WITHHOLDING..............................................26
5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER..............................26
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SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY
THE DEPOSITARY.........................................26
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY
OR THE ISSUER..........................................27
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND
THE ISSUER.............................................28
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY................29
SECTION 5.5 THE CUSTODIANS...........................................30
SECTION 5.6 NOTICES AND REPORTS......................................31
SECTION 5.7 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC...........31
SECTION 5.8 INDEMNIFICATION..........................................32
SECTION 5.9 CHARGES OF DEPOSITARY....................................33
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS........................34
SECTION 5.11 EXCLUSIVITY..............................................35
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS.....................35
6. AMENDMENT AND TERMINATION..................................................35
SECTION 6.1 AMENDMENT................................................35
SECTION 6.2 TERMINATION..............................................36
7. MISCELLANEOUS..............................................................37
SECTION 7.1 COUNTERPARTS.............................................37
SECTION 7.2 NO THIRD PARTY BENEFICIARIES.............................38
SECTION 7.3 SEVERABILITY.............................................38
SECTION 7.4 HOLDERS AND OWNERS AS PARTIES; BINDING EFFECT............38
SECTION 7.5 NOTICES..................................................38
SECTION 7.6 GOVERNING LAW............................................39
SECTION 7.7 ASSIGNMENT...............................................39
SECTION 7.8 COMPLIANCE WITH U.S. SECURITIES LAWS.....................40
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of February 23, 1998, as amended and restated
as of December 29, 1998, and as further amended and restated as of
_____________, 2005, among NOVOGEN LIMITED, incorporated under the laws of the
Commonwealth of Australia, (herein called the Issuer), 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 Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Issuer desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Issuer 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:
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1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
Section 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
Section 1.2 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 1.3 Custodian.
The term "Custodian" shall mean the principal Melbourne, Victoria,
Australia, office of Australia and New Zealand Banking Group, the principal
Melbourne, Victoria, Australia office of National Australia Bank Limited and the
principal Sydney, New South Wales, Australia office of HongKong Bank of
Australia, Ltd. (herein collectively called the "Custodian"), as agent of the
Depositary for the purposes of this Deposit Agreement, and any other firm or
corporation which may hereafter be appointed
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by the Depositary pursuant to the terms of Section 5.5, as substitute or
additional custodian or custodians hereunder, as the context shall require and
shall also mean all of them collectively.
Section 1.4 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 1.5 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation. 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 Agreement is 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
Section 1.6 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 and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.5.
Section 1.7 Dollars.
The term "$s" or "Dollars" shall mean United States dollars. The
term "A$" shall mean Australian Dollars.
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Section 1.8 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Ordinary Shares of the Issuer or any
successor as registrar for the Ordinary Shares of the Issuer and any other
appointed agent of the Issuer for the transfer and registration of Shares.
Section 1.9 Issuer.
The term "Issuer" shall mean Novogen Limited, incorporated under the
laws of the Commonwealth of Australia, and its successors.
Section 1.10 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
Section 1.11 Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing American Depositary Shares.
Section 1.12 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed to register Receipts and transfers of Receipts as herein provided.
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Section 1.13 Restricted Receipts.
The term "Restricted Receipts" shall mean any Receipts issued
pursuant to Section 4.4 hereunder in connection with the issuance of rights by
the Issuer as set forth in such Section. Any such Restricted Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation, and transfer under such
laws.
Section 1.14 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Issuer or its affiliates (as defined in Rule 144 to the Securities Act of 1933)
in a transaction or chain of transactions not involving any public offering or
which are subject to resale limitations under Regulation D under that Act or
both, or which are held by an officer, director (or persons performing similar
functions) or other affiliate of the Issuer, or which are subject to other
restrictions on sale or deposit under the laws of the United States, the
Commonwealth of Australia, or under a shareholder agreement or the Constitution
of the Issuer.
Section 1.15 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 1.16 Securities Exchange Act of 1934.
The term "Securities Exchange Act of 1934" shall mean the United
States Securities Exchange Act of 1934, as from time to time amended.
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Section 1.17 Shares.
The term "Shares" shall mean fully paid Ordinary Shares in
registered form of the Issuer heretofore validly issued and outstanding and
fully paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares or interim certificates representing such Shares.
2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.
Section 2.1 Form and Transferability of Receipts.
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 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. The Depositary shall maintain books on which each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
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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 upon which Receipts may be
listed 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.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be 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, may treat the Owner thereof 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 Issuer 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 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications 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 execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
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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 Issuer 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 and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates
for Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Issuer or the
Foreign Registrar, 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.
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Section 2.3 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Issuer or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Issuer that any
Deposited Securities have been recorded upon the books of the Issuer or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
above specified, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be represented thereby. 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. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and representing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees of the Depositary
for the execution and delivery of such Receipt or Receipts as provided in
Section 5.9, and of all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Deposited Securities.
Section 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement including payment of the fees of the Depositary as provided in Section
5.9, shall register transfers of Receipts on its transfer books from time to
time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be
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required by the laws of the State of New York and of the United States of
America. Thereupon the Depositary shall execute a new Receipt or Receipts and
deliver the same to or upon the order of the person entitled thereto but only
upon payment to the Depositary of the fees of the Depositary as provided in
Section 5.9.
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, representing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for the
purpose of effecting transfers, 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
Receipts and will be entitled to protection and indemnity to the same extent as
the Depositary.
Section 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary of a
Receipt for the purpose of withdrawal of the Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, and upon payment of
the fee of the Depositary for the surrender of Receipts as provided in Section
5.9 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 such Receipt shall
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the
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American Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates in the name of such
Owner or as ordered by him or by certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of such Receipts to such Owner or as ordered by him. 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, and if the Depositary so requires, the Owner thereof shall
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 principal Melbourne,
Australia, or Sydney, Australia, as applicable, office of such Custodian,
subject to Sections 2.6, 3.1 and 3.2 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 American Depositary Shares
evidenced by such Receipt, 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 the American Depositary Shares evidenced by such Receipt, 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 a
Receipt, 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 and other proper documents of title
for, the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt to the Depositary for
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delivery at the Corporate Trust Office of the Depositary. Such direction shall
be given by letter or, at the request, risk and expense of such Owner, by cable,
telex or facsimile transmission.
Section 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presentor of the Receipt of a sum
sufficient to reimburse it for any tax or other governmental charge and any
stock transfer or registration fee with respect thereto (including any such tax
or charge and fee with respect to Shares being deposited or withdrawn) and
payment of any applicable fees as herein provided, 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 this Deposit Agreement, including, without
limitation, Section 7.8.
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 are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Issuer at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to Section 7.8 of this Deposit Agreement. 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
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Depositary or the Issuer or the deposit of Shares in connection with voting at a
shareholders' meeting, or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares.
Section 2.7 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 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
Section 2.9 Pre-Release of Receipts.
Notwithstanding Section 2.3 hereof, the Depositary may execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.2
("Pre-Release").
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The Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation from the person
to whom Receipts are to be delivered that such person, or its customer, owns the
Shares or Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited hereunder; provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.
Section 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
evidence of the number of Shares beneficially owned or any other matters
necessary or appropriate to evidence compliance with the Corporations Law of
Australia, the Banking (Foreign Exchange) Regulations or the Australian Foreign
Acquisitions and Xxxxxxxx Xxx 0000 or such
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information relating to the registration on the books of the Issuer or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may, and shall if requested by the Issuer, 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. The
Depositary shall provide the Issuer, upon the Issuer's reasonable request and
expense, in a timely manner, with copies of any information or other material
which it receives pursuant to this Section.
Section 3.2 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable with
respect to any Receipt or any Deposited Securities represented by any Receipt,
such tax or other governmental charge shall be payable by the Owner of such
Receipt to the Depositary. 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 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 of such Receipt shall remain
liable for any deficiency.
Section 3.3 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 each certificate
therefor are validly issued, fully paid, nonassessable and free of any
pre-emptive rights of the holders
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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 Receipts evidencing American Depositary Shares
representing such Shares by that person is not restricted under the Securities
Act of 1933. Such representations and warranties shall survive the deposit of
Shares and issuance of Receipts.
4. THE DEPOSITED SECURITIES.
Section 4.1 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 4.5, convert such dividend or distribution into
Dollars and shall distribute the amount thus received (net of the fees of the
Depositary as provided in Section 5.9 hereof) 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 Issuer 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, the amount distributed to the Owner of the Receipts evidencing
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 Issuer 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 Issuer or
its agent such information from its records as the Issuer may reasonably request
to enable the Issuer or its agent to file necessary reports with governmental
agencies, and the Depositary or the Issuer or its agent may file any
18
such reports necessary to obtain benefits under the applicable tax treaties for
the Owners of Receipts.
Section 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and 5.9, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.1, 4.3 or 4.4, the Depositary shall cause the securities or property
received by it to be distributed to the Owners entitled thereto, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution; provided,
however, that if in the opinion of the Depositary such distribution cannot be
made proportionately among the Owners entitled thereto, or if for any other
reason (including, but not limited to, any requirement that the Issuer or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Owners or holders) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Section 5.9) shall be
distributed by the Depositary to the Owners entitled thereto as in the case of a
distribution received in cash.
Section 4.3 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 Issuer shall so request, distribute to the Owners of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American
19
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 and the payment of the fees of
the Depositary as provided in Section 5.9. In lieu of delivering Receipts for
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 4.1. 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.
Section 4.4 Rights.
In the event that the Issuer shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse; 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
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
20
Owners, it may sell the rights, warrants or other instruments in proportion to
the number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees of the Depositary as
provided in Section 5.9 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise. The Depositary
shall not be responsible for any failure to determine that it may be lawful or
feasible to make such rights available to Owners in general or any Owner in
particular.
If an Owner of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the American
Depositary Shares of such Owner hereunder, the Depositary will make such rights
available to such Owner upon written notice from the Issuer to the Depositary
that (a) the Issuer has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Issuer has
determined in its sole discretion are reasonably required under applicable law.
Upon instruction pursuant to such warrants or other instruments to the
Depositary from such Owner to exercise such rights, upon payment by such Owner
to the Depositary for the account of such Owner of an amount equal to the
purchase price of the Shares to be received upon the exercise of the rights, and
upon payment of the fees of the Depositary as set forth in such warrants or
other instruments, the Depositary shall, on behalf of such Owner, exercise the
rights and purchase the Shares, and the Issuer shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 of this Deposit Agreement, and shall, pursuant
to Section 2.3 of this Deposit Agreement, execute and deliver to such Owner
Restricted Receipts.
21
If registration under the Securities Act of 1933 of the
securities to which any rights relate is required in order for the Issuer to
offer such rights to Owners and sell the securities upon the exercise of such
rights to Owners, 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. Nothing in this Section 4.4 or
elsewhere in this agreement shall create any obligation on the part of the
Issuer to file a registration statement.
Section 4.5 Conversion of Foreign Currency.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9.
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
22
approval or license, if any, as it may deem desirable provided, however, that
the Issuer shall not be required to make any such filings.
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.
Section 4.6 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 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
23
meeting of holders of Shares or other Deposited Securities, the Depositary shall
fix a record date which shall, insofar as is reasonably practicable, be the
same, or as near as practicable to, the record date established by the Issuer in
respect of the Shares, if any, (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
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 4.1 through 4.5 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 4.7 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Issuer the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting, and (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 the laws of the
Commonwealth of Australia and of the Constitution of the Issuer, 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. Upon the written request of an Owner on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor, in so far as practicable, to vote or
cause to be voted the amount of Shares or
24
other Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. The Depositary shall not vote or attempt to exercise the right to vote
that attaches to the Shares or other Deposited Securities, other than in
accordance with such instructions. The Issuer shall be under no obligation to
verify instructions received from Owners and voted upon by the Depositary.
Section 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Issuer 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 this Deposit Agreement, and American Depositary Shares shall thenceforth
represent 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 Issuer shall so request,
execute and deliver additional Receipts as in the case of a dividend in Shares,
or call for the surrender of outstanding Receipts to be exchanged for new
Receipts specifically describing such new Deposited Securities.
Section 4.9 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer 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 Issuer. The
Depositary shall also, upon written request, send
25
to the Owners copies of such reports when furnished by the Issuer pursuant to
Section 5.6.
Section 4.10 Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall, at the
expense of the Issuer, 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 Receipts 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.
5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.
Section 5.1 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.
26
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners, provided that such inspection shall not be for the purpose of
communicating with the Owners in the interest of a business or object other than
the business of the Issuer or a matter related to this Deposit Agreement or the
Receipts.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
Section 5.2 Prevention or Delay in Performance by the Depositary or the
Issuer.
Neither the Depositary nor the Issuer nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder of any Receipt, (i) if by reason of any provision of any present
or future law or regulation of the United States 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 of the Issuer, or by reason of
any provision of any securities issued or distributed by the Issuer, 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
Issuer 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 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
27
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 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.
Section 5.3 Obligations of the Depositary, the Custodian and the Issuer.
The Issuer assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Owners or holders of Receipts, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or holder of any Receipt
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Issuer shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any
28
Deposited Securities or in respect of the Receipts on behalf of any Owner or
holder or any person.
Neither the Depositary nor the Issuer shall be liable for any action
or nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or 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.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
Section 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by 120
days prior written notice of its election so to do delivered to the Issuer. The
Depositary may at any time be removed by the Issuer 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 Issuer shall use reasonable efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Issuer 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,
29
duties and obligations of its predecessor, but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Issuer 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. In case at any time the Depositary acting hereunder
shall resign or be removed, it shall continue to act as Depositary for the
purpose of terminating this Deposit Agreement pursuant to Section 6.2.
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 5.5 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. Whenever the Depositary in its
discretion determines that it is in the best interest of the Owners to do so, it
may appoint substitute or additional custodian or custodians, 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
30
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.
Section 5.6 Notices and Reports.
On or before the first date on which the Issuer 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 Issuer 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 Issuer will arrange for the prompt transmittal by the Issuer to
the Depositary and the Custodian of such notices and any other reports and
communications which are made generally available by the Issuer to holders of
its Shares. If requested in writing by the Issuer, the Depositary will arrange
for the mailing, at the Issuer's expense, of copies of such notices, reports and
communications to all Owners. The Issuer 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 5.7 Distribution of Additional Shares, Rights, etc.
The Issuer agrees that in the event of any distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities, (each a
"Distribution") the Issuer will promptly furnish to the Depositary a written
opinion from U.S. counsel for the Issuer, which counsel shall be satisfactory to
the Depositary, stating whether or not the Distribution requires a Registration
Statement under the Securities Act of 1933 to be in effect prior to
31
making such Distribution available to Owners entitled thereto. If in the opinion
of such counsel a Registration Statement is required, such counsel shall furnish
to the Depositary a written opinion as to whether or not there is a Registration
Statement in effect which will cover such Distribution.
The Issuer agrees with the Depositary that neither the Issuer nor
any company controlled by the Issuer will at any time deposit any Shares, either
originally issued or previously issued and reacquired by the Issuer or by any
company under its control, unless a Registration Statement is in effect as to
such Shares under the Securities Act of 1933 unless the Issuer shall have
delivered to the Depositary an opinion of U.S. counsel for the Issuer, which
counsel shall be satisfactory to the Depositary, to the effect that registration
under the Securities Act is not required.
Section 5.8 Indemnification.
The Issuer agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
fees and expenses of counsel) which may arise out of acts performed or omitted,
in accordance with the provisions of 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, employees,
agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of them, or (ii) by the Issuer or any of its
directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Issuer, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
32
Section 5.9 Charges of Depositary.
The Issuer agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Issuer from time to time. The Depositary shall present its statement for
such charges and expenses to the Issuer at least once every three months. The
charges and expenses of the Custodian 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 Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 hereof), whichever applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the share register of the
Issuer or Foreign Registrar and applicable to transfers of Shares to or from the
name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals 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 4.5, (5) a fee not in excess 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, the execution and delivery of
Receipts pursuant to Section 4.3 and the surrender of Receipts pursuant to
Section 2.5 or 6.2, (6) 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
hereof, (7) a fee for the distribution of securities pursuant to Section 4.2,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares
33
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) a fee not in excess 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; provided, however, that no fee will be assessed under this
clause (8) to the extent a fee of $.02 was charged pursuant to clause (6) above
during that calendar year and (9) any other charge 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 4.6 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 2.9 hereof, may own and deal in
any class of securities of the Issuer and its affiliates and in Receipts.
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
Issuer requests that such papers be retained for a longer period or turned over
to the Issuer or to a successor depositary.
34
Section 5.11 Exclusivity.
The Issuer agrees not to appoint any other depositary for issuance
of American Depositary 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 Issuer shall provide to the Depositary a list
setting forth, to the actual knowledge of the Issuer, those persons or entities
who beneficially own Restricted Securities and the Issuer shall update that list
on a regular basis. The Issuer 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.
6. AMENDMENT AND TERMINATION.
Section 6.1 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 Issuer 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), or which shall otherwise
prejudice any substantial existing right of Owners, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner at the time any amendment so becomes
35
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.
Section 6.2 Termination.
Upon the resignation or removal of the Depositary pursuant to
Section 5.4, or at any time at the direction of the Issuer, the Depositary shall
terminate this 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. On and after the date of termination, the
Owner of a Receipt, upon (a) surrender of such Receipt at the Corporate Trust
Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 2.5, and (c) 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 the
American Depositary Shares evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of Receipts, shall suspend the
distribution of dividends to the Owners thereof, and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights 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, 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 this
Deposit Agreement, and any applicable taxes or governmental charges). At any
time after
36
the expiration of one year 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
hereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners who have not theretofore surrendered their Receipts, 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 a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of this
Deposit Agreement, and any applicable taxes or governmental charges) and except
for its obligations under Section 5.8 hereof. Upon the termination of this
Deposit Agreement, the Issuer shall be discharged from all obligations under
this Deposit Agreement except for its obligations to the Depositary under
Sections 5.8 and 5.9 hereof.
7. MISCELLANEOUS.
Section 7.1 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 holder or Owner of a Receipt during business
hours.
37
Section 7.2 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 7.3 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 7.4 Holders and Owners as Parties; Binding Effect.
The holders and Owners of Receipts 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 thereof.
Section 7.5 Notices.
Any and all notices to be given to the Issuer 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 Corporate Secretary,
Novogen Limited, 000 Xxxxx Xxxx, Xxxxx Xxxx, XXX, Xxxxxxxxx, or any other place
to which the Issuer may have transferred its principal office.
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
38
Administration, or any other place to which the Depositary may have transferred
its Corporate Trust Office.
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 Receipts 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 effected 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 Issuer 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 7.6 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.
Section 7.7 Assignment.
This Deposit Agreement may not be assigned by either the Issuer or
the Depositary.
39
Section 7.8 Compliance With U.S. Securities Laws.
Notwithstanding any terms of this Deposit Agreement to the contrary,
the Issuer and the Depositary each agrees that it will not exercise any rights
it has under the Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the United States
securities laws, including, but not limited to, Section I A(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
40
IN WITNESS WHEREOF, NOVOGEN LIMITED and THE BANK OF NEW YORK have duly
executed this agreement as of the day and year first set forth above and all
Owners shall become parties hereto upon acceptance by them of Receipts issued in
accordance with the terms hereof.
NOVOGEN LIMITED
By: ________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: ________________________________
Name:
Title:
41
Exhibit A to Deposit Agreement
________________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents five deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR FULLY PAID ORDINARY SHARES OF THE
PAR VALUE OF A$0.25 EACH OF
NOVOGEN LIMITED
(INCORPORATED UNDER THE LAWS OF THE
COMMONWEALTH OF AUSTRALIA)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that ___________________________ , or registered assigns IS THE
OWNER OF _______________________________________________________________________
AMERICAN DEPOSITARY SHARES
representing deposited fully paid Ordinary Shares, par value A$0.25 (herein
called "Shares") of Novogen Limited, incorporated under the laws of the
Commonwealth of Australia (herein called the "Company"). At the date hereof,
each American Depositary Share represents five Shares which are either deposited
or subject to deposit under the deposit agreement at the principal Melbourne,
Victoria, Australia, office of Australia and New Zealand Banking Group, the
principal Melbourne, Victoria, Australia, office of National Australia Bank
Limited and the principal Sydney, New South Wales, Australia, office of HongKong
Bank of Australia (herein collectively 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. 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 February 23, 1998, as amended and restated
as of December 29, 1998, as further amended and restated as of ________________,
2005, (herein called the "Deposit Agreement"), by and among the Company, the
Depositary, and all Owners and holders from time to time of Receipts issued
thereunder, each of whom by accepting a Receipt agrees to become a party thereto
and become bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and holders of the Receipts and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property,
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the 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 not defined herein shall have the meanings set
forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by 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 (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, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney,
-2-
upon surrender of this Receipt properly endorsed for transfer or accompanied by
proper instruments of transfer and funds sufficient to pay any applicable
transfer taxes and the fees and expenses of the Depositary and upon compliance
with such regulations, if any, as the Depositary may establish for such purpose.
This Receipt may be split into other such Receipts, or may be combined with
other such Receipts into one Receipt, representing the same aggregate number of
American Depositary Shares as the Receipt or Receipts surrendered. As a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination, or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, the Custodian, or Registrar may require
payment from the 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, paragraph (22) 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 are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to paragraph (22) hereof. The
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under the Deposit Agreement
any Shares required to be registered under the provisions of the Securities Act
of 1933, unless a registration statement is in effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such
-3-
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Owner hereof any part or all of the Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt, and may apply such dividends or other distributions or the proceeds of
any such sale in payment of such tax or other governmental charge and the Owner
hereof shall remain liable for any deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, non assessable, 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 Shares deposited by that person are not restricted securities.
Such representations and warranties shall survive the deposit of Shares and
issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION
Any person presenting Shares for deposit or any Owner or holder of a
Receipt may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval,
evidence of the number of Shares beneficially owned or any other matters
necessary or appropriate to evidence compliance with the Corporations Law of
Australia, the Banking (Foreign Exchange) Regulations or the Australian Foreign
Acquisitions and Xxxxxxxx Xxx 0000 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, and shall, if requested by the Company, deem
necessary or proper. 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. The
Depositary shall provide the Company, upon the Company's reasonable request and
expense, in a timely manner, with copies of any information or other material
which it receives pursuant to this Paragraph. 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.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
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 Issuer at least
-4-
once every three months. The charges and expenses of the Custodian 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), whichever 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 not in excess 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 of the Deposit Agreement, the execution and
delivery of Receipts pursuant to Section 4.3 of the Deposit Agreement and the
surrender of Receipts pursuant to Section 2.5 or 6.2 of the Deposit Agreement,
(6) 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 thereof, (7) a
fee for the distribution of securities pursuant to Section 4.2 of the Deposit
Agreement, such fee being in an amount equal to the fee for the execution and
delivery of American Depositary Shares referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares) but which
securities are instead distributed by the Depositary to Owners, (8) a fee not in
excess 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; provided, however, that
no fee will be assessed under this clause (8) to the extent a fee of $.02 was
charged pursuant to clause (6) above during that calendar year and (9) any other
charge 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 4.6 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.
-5-
8. PRE-RELEASE 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 ("Pre-Release"). The Depositary may, pursuant to
Section 2.5 of the Deposit Agreement, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation from the person
to whom Receipts are to be delivered that such person, or its customer, owns the
Shares or Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and Owner of
this Receipt by accepting or holding the same consents and agrees, that title to
this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument, provided, however, that the Depositary, notwithstanding
any notice to the contrary, may treat the person in whose name this Receipt is
registered on the books of the Depositary as the absolute owner hereof for the
purpose of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement or for all
other purposes and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under the Deposit Agreement or to any
holder of this 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 or facsimile signature of a
duly authorized signatory of the
-6-
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.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission"). Such
reports and communications will be available for inspection and copying by
holders and Owners 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, upon written request, 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 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.
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 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, 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 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in
-7-
Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the Depositary will cause the
securities or property received by it to be distributed to the Owners of
Receipts entitled thereto, in any manner that the Depositary may deem equitable
and practicable for accomplishing such distribution; provided, however, that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Owners of Receipts entitled thereto, or if for any
other reason the Depositary deems such distribution not to be feasible, the
Depositary may adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement) 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 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 (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if
-8-
at the time of the receipt thereof the foreign currency so received can in the
judgment of the Depositary be converted on a reasonable basis into Dollars and
the resulting Dollars transferred to the United States, the Depositary shall
convert or cause to be converted, by sale or in any other manner that it may
determine, such foreign currency into Dollars, and such Dollars shall be
distributed to the Owners entitled thereto or, if the Depositary shall have
distributed any warrants or other instruments which entitle the holders thereof
to such Dollars, then to the holders of such warrants and/or instruments upon
surrender thereof for cancellation. Such distribution may be made upon an
averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable, provided,
however, that the Company shall not be required to make any such filings.
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.
14. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of
-9-
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 distribute, to any Owner to
whom it determines the distribution to be lawful and feasible, in proportion to
the number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate. If the Depositary
determines in its discretion that it is not lawful and feasible to make such
rights available to certain Owners, it may sell the rights or warrants or other
instruments in proportion to the number of American Depositary Shares held by
the Owners to whom it has determined it may not lawfully or feasibly make such
rights available, and allocate the net proceeds of such sales (net of the fees
of the Depositary as provided in Section 5.9 of the Deposit Agreement) for the
account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date of
delivery of any Receipt or otherwise. The Depositary shall not be responsible
for any failure to determine that it may be lawful or feasible to make such
rights available to Owners in general or any Owner in particular.
If an Owner of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner 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 of the Depositary as set forth in such warrants or
other instruments, the Depositary shall, on behalf of such Owner, exercise the
rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.2 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
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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. Nothing in this
Paragraph (14) or elsewhere in this Receipt shall create any obligation on the
part of the Company to file a registration statement.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date which shall, insofar as is reasonably practicable, be
the same, or as near as practicable to, the record date established by the
Company in respect of the Shares, if any, (a) for the determination of the
Owners of Receipts who shall be (i) entitled to receive such dividend,
distribution or rights or the net proceeds of the sale thereof, (ii) entitled to
give instructions for the exercise of voting rights at any such meeting, or
(iii) responsible for any fee assessed by the Depositary pursuant to the Deposit
Agreement, or (b) on or after which each American Depositary Share will
represent the changed number of Shares, subject to the provisions of the Deposit
Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting, and (b) a statement that the Owners of Receipts as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of law and of the Constitution of the Company, to instruct
the Depositary as to the exercise of the voting rights, if any, pertaining to
the amount of Shares or other Deposited Securities represented by their
respective American Depositary Shares. Upon the written request of an Owner of a
Receipt on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor in so far as
practicable to vote or cause to be voted the amount of Shares or other Deposited
Securities represented by such American Depositary Shares evidenced by such
Receipt in accordance with the instructions set forth in such request. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions. The Company
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shall be under no obligation to verify instructions received from Owners and
voted upon by the Depositary.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, 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 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 on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts specifically describing such new Deposited
Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder of any Receipt, (i) if by reason of any provision of any present
or future law of the United States or any other country, or of any other
governmental or regulatory authority, or by reason of any provision, present or
future, of the Constitution 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 terrorism or war or other
circumstances beyond its control, the Depositary or the Company 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 Sections 4.1, 4.2,
or 4.3 of the Deposit Agreement, or an offering or distribution pursuant to
Section 4.4 of the Deposit Agreement, such distribution or offering may not be
made available to Owners of Receipts, and the Depositary may not
-12-
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 assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Owners or holders of
Receipts, except that they agree to perform their obligations specifically set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
shall not be subject to any liability with respect to the validity or worth of
the Deposited Securities. Neither the Depositary nor the Company shall be under
any obligation to appear in, prosecute or defend any action, suit, or other
proceeding in respect of any Deposited Securities or in respect of the Receipts
on behalf of any Owner or holder or any person. Neither the Depositary nor the
Company shall be liable for any action or nonaction by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Owner or holder of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith. The Company agrees to indemnify the
Depositary, its directors, employees, agents and affiliates and any Custodian
against, and hold each of them harmless from, any liability or expense
(including, but not limited to, the fees and expenses of counsel) which may
arise 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 either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, or (ii) by the Company or any of its directors, employees, agents and
affiliates. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company.
The Depositary may at any time be removed by the Company by written notice of
such removal. In case at any time the Depositary shall resign or be removed, it
shall continue to act as Depositary for the purpose of terminating the Deposit
Agreement pursuant to Section 6.2 of the Deposit Agreement. 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.
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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 in any respect which they may deem necessary or desirable.
Any amendment which shall impose or increase any fees or charges (other than
taxes and other governmental charges), or which shall otherwise prejudice any
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Owner of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby except in order to comply with mandatory provisions of
applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
Upon the resignation or removal of the Depositary pursuant to Section 5.4
of the Deposit Agreement, or at any time at the direction of the Company, the
Depositary shall 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. On and after the
date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, will be entitled to delivery, to him or upon his order, of the amount
of Deposited Securities represented by the American Depositary Shares evidenced
by such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights 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
-14-
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 who have not theretofore surrendered their Receipts, 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.
22. 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 F-6 Registration Statement, as
amended from time to time, under the Securities Act of 1933.
-15-
