File N# 333-118602
Rule 424(b)
Exhibit A to Deposit Agreement
No. ___________________________
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents ten deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
WITHOUT PAR VALUE OF
GRADIPORE 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
_______________________________
Effective January 21, 2005, the Companys
name changed from Gradipore LTD. To
Life Therapeuthics Limited.
Effective: June 23, 2009, the companys
name is Arturus Capital Limited
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein
called Shares) of Gradipore Limited,
incorporated under the laws of the
Commonwealth of Australia (herein called
the Company). At the date hereof, each
American Depositary Share represents ten
Shares which are either deposited or subject
to deposit under the deposit agreement at the
principal Australia office of HongKong Bank
of Australia Ltd., the principal Melbourne,
Victoria, Australia office of National
Australia Bank Limited and the principal
Melbourne, Victoria, Australia office of
Australia and New Zealand Banking Group
Limited (herein collectively called the
Custodian). The Depositarys Corporate Trust
Office is located at a different address than its
principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, X.X. 00000, and its principal executive
office is located at Xxx Xxxx Xxxxxx, Xxx
Xxxx, X.X. 00000.
THE DEPOSITARYS CORPORATE
TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX,
X.X. 00000
1 THE DEPOSIT AGREEMENT.
This American Depositary Receipt is
one of an issue (herein called Receipts), all
issued and to be issued upon the terms and
conditions set forth in the deposit agreement,
dated as of _________________, 2004,
(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 Depositarys Corporate Trust
Office in New York City and at the office of
the Custodian.
The statements made on the face and
reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement
and are qualified by and subject to the
detailed provisions of the Deposit Agreement,
to which reference is hereby made.
Capitalized terms not defined herein shall
have the meanings set forth in the Deposit
Agreement.
2 SURRENDER OF RECEIPTS
AND WITHDRAWAL OF
SHARES.
Upon surrender at the Corporate Trust
Office of the Depositary of this Receipt, and
upon payment of the fee of the Depositary
provided in this Receipt, and subject to the
terms and conditions of the Deposit
Agreement, the Owner hereof is entitled to
delivery, to him or upon his order, of the
Deposited Securities at the time represented
by the American Depositary Shares for which
this Receipt is issued. Delivery of such
Deposited Securities may be made (a) by the
electronic transfer thereof of Shares through
the facilities of CHESS or otherwise or the
delivery of documents of title or other
instruments evidencing title, as may be
required under the Companys Constitution or
applicable law or regulation in the name of
the Owner hereof or as ordered by him and
(b) by the delivery of any other securities,
property and cash to which such Owner is
then entitled in respect of this Receipt. Such
delivery will be made at the option of the
Owner hereof, either at the office of the
Custodian or at the Corporate Trust Office of
the Depositary or at such other place as may
be designated by such Owner, provided that
the forwarding of certificates for Shares or
other Deposited Securities for such delivery at
the Corporate Trust Office of the Depositary
shall be at the risk and expense of the Owner
hereof. Notwithstanding any other provision
of the Deposit Agreement or this Receipt, 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.
3 TRANSFERS, SPLIT-UPS,
AND COMBINATIONS
OF RECEIPTS.
The transfer of this Receipt is
registrable without unreasonable delay on the
books of the Depositary at its Corporate Trust
Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of
this Receipt properly endorsed for transfer or
accompanied by proper instruments of
transfer and funds sufficient to pay any
applicable transfer taxes and the expenses of
the Depositary and upon compliance with
such regulations, if any, as the Depositary
may establish for such purpose. This Receipt
may be split into other such Receipts, or may
be combined with other such Receipts into
one Receipt, evidencing the same aggregate
number of American Depositary Shares as the
Receipt or Receipts surrendered. As a
condition precedent to the execution and
delivery, registration of transfer, split-up,
combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the
Depositary, the Custodian, or Registrar may
require payment from the depositor of the
Shares or the presentor of the Receipt of a
sum sufficient to reimburse it for any tax or
other governmental charge and any stock
transfer or registration fee with respect thereto
(including any such tax or charge and fee with
respect to Shares being deposited or
withdrawn) and payment of any applicable
fees as provided in this Receipt, may require
(a) the production of proof satisfactory to it as
to the identity and genuineness of any
signature, (b) compliance with any laws or
regulations, relating to depositary receipts in
general or to the withdrawal or sale of
Deposited Securities, (c) delivery of such
certificates as the Company may from time to
time specify in writing to the Depositary to
assure compliance with the Securities Act of
1933 and the rules and regulations thereunder
and (d) compliance with such reasonable
procedures, if any, as the Depositary may
establish consistent with the provisions of the
Deposit Agreement or this Receipt, including,
without limitation, this Article 3.
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 the provisions
of Article 22 hereof. Notwithstanding
anything to the contrary in the Deposit
Agreement or this Receipt, 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, any American Depositary Share
or any Deposited Securities represented by
any American Depositary Share evidenced
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 such Receipt (or any
split-up or combination thereof) or any
transfer of this 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
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 ON DEPOSIT
OF SHARES.
Every person depositing Shares under
the Deposit Agreement shall be deemed
thereby to represent and warrant that such
Shares and proper evidence of title therefor
are validly issued, fully paid, nonassessable,
and free of any pre-emptive rights of the
holders of outstanding Shares and that the
person making such deposit is duly authorized
so to do. Every such person shall also be
deemed to represent that such Shares and the
Receipts evidencing American Depositary
Shares representing such Shares would not be
Restricted Securities. Such representations
and warranties shall survive the deposit of
Shares and issuance or cancellation 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 Foreign Acquisitions and
Takeovers Xxx 0000, the Constitution of the
Company and exchange control regulations,
as indicated to the Depositary by the
Company, or such information relating to the
registration on the books of the Company or
the Foreign Registrar, if applicable, to execute
such certificates and to make such
representations and warranties, as the
Depositary may deem necessary or proper or
as the Company may reasonably instruct in
writing the Depositary to require. The
Depositary may, and at the reasonable written
request of the Company shall, withhold the
delivery or registration of transfer of any
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. 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, if any, which is then performing the
function of the regulation of currency
exchange. The Depositary shall provide the
Company, upon the Companys reasonable
written request and at its expense, in a timely
manner, with copies of any information or
other material which it receives pursuant to
this Article 6. Each Owner and holder agrees
to provide any information requested by the
Company or the Depositary pursuant to this
Article 6.
7 CHARGES OF DEPOSITARY.
The 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 Company 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 Company or an exchange
of stock regarding the Receipts or Deposited
Securities or a distribution of Receipts
pursuant to Section 4.03 of the Deposit
Agreement), or by Owners, as applicable: (1)
taxes and other governmental charges, (2)
such registration fees as may from time to
time be in effect for the registration of
transfers of Shares generally on the Share
register of the Company or Foreign Registrar
and applicable to transfers of Shares to or
from the name of the Depositary or its
nominee or the Custodian or its nominee on
the making of deposits or withdrawals under
the Deposit Agreement, (3) such cable, telex
and facsimile transmission expenses as are
expressly provided in the Deposit Agreement,
(4) such expenses as are incurred by the
Depositary in the conversion of foreign
currency pursuant to Section 4.05 of the
Deposit Agreement, (5) a fee of $5.00 or less
per 100 American Depositary Shares (or
portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.03, 4.03 or
4.04 of the Deposit Agreement, and the
surrender of Receipts pursuant to Section 2.05
or 6.02 of the Deposit Agreement, (6) a fee of
$.02 or less per American Depositary Share
(or portion thereof) for any cash distribution
made pursuant to the Deposit Agreement
including, but not limited to Sections 4.01
through 4.04 thereof, (7) a fee for the
distribution of securities pursuant to Section
4.02 of the Deposit Agreement, such fee
being in an amount equal to the fee for the
execution and delivery of American
Depositary Shares referred to above which
would have been charged as a result of the
deposit of such securities (for purposes of this
clause (7) treating all such securities as if they
were Shares), but which securities are instead
distributed by the Depositary to Owners, (8) a
fee of $.02 or less per American Depositary
Share (or portion thereof) for depositary
services, which will accrue on the last day of
each calendar year and which will be
payable as provided in clause (9) below;
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 Depositarys agents, including the
Custodian, or the agents of the Depositarys
agents in connection with the servicing of
Shares or other Deposited Securities (which
charge shall be assessed against Owners as
of the date or dates set by the Depositary in
accordance with Section 4.06 of the Deposit
Agreement and shall be payable at the sole
discretion of the Depositary by billing such
Owners for such charge or by deducting
such charge from one or more cash
dividends or other cash distributions).
The Depositary, subject to Article (8)
hereof, may own and deal in any class of
securities of the Company and its affiliates
and in Receipts.
8 PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the
Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the
receipt of Shares pursuant to Section 2.02 of
the Deposit Agreement (a Pre-Release). The
Depositary may, pursuant to Section 2.05 of
the Deposit Agreement, deliver Shares upon
the 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 or Shares 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 Owner and holder of this
Receipt by accepting or holding the same
consents and agrees, that title to this Receipt
when properly endorsed or accompanied by
proper instruments of transfer, is transferable
by delivery with the same effect as in the case
of a negotiable instrument under the laws of
New York; provided, however, that until a
Receipt shall have been transferred on the
books of the Depositary as provided in
Section 2.04 of the Deposit Agreement, the
Company and 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 to any holder of a Receipt unless
such holder is the Owner thereof.
10 VALIDITY OF RECEIPT.
This Receipt shall not be entitled to
any benefits under the Deposit Agreement or
be valid or obligatory for any purpose, unless
this Receipt shall have been executed by the
Depositary by the manual signature of a duly
authorized signatory of the Depositary;
provided, however, that such signature may
be a facsimile if a Registrar for the Receipts
shall have been appointed and such Receipts
are countersigned by the manual signature of
a duly authorized officer of the Registrar.
11 REPORTS; INSPECTION OF
TRANSFER BOOKS.
The Company 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 by
foreign law or otherwise under Rule
12g3-2(b) under the Securities Exchange Act
of 1934. Such reports and communications
will be available for inspection and copying
by Owners at the public reference facilities
maintained by the Commission located at 000
Xxxxx 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, at its
Corporate Trust Office, 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
shall, if at the time of receipt thereof any
amounts received in a foreign currency can in
the judgment of the Depositary be converted
on a reasonable basis into United States
Dollars transferable to the United States, and
subject to the Deposit Agreement, convert
such dividend or distribution into dollars and
will distribute the amount thus received (net
of the fees and expenses of the Depositary as
provided in Article 7 hereof and Section 5.09
of the Deposit Agreement, if applicable) 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 Section 5.09 of the Deposit
Agreement, whenever the Depositary receives
any distribution other than a distribution
described in Sections 4.01, 4.03 or 4.04 of the
Deposit Agreement, the Depositary will cause
the securities or property received by it to be
distributed to the Owners entitled thereto,
after deduction or upon payment of any fees
and expenses of the Depositary or any taxes
or other governmental charges, in proportion
to the number of American Depositary Shares
representing such Deposited Securities held
by them respectively, in any manner that the
Depositary may deem equitable and
practicable for accomplishing such
distribution; provided, however, that if in the
opinion of the Depositary such distribution
cannot be made proportionately among the
Owners of Receipts entitled thereto, or if for
any other reason the Depositary deems such
distribution not to be feasible, the Depositary
may adopt such method as it may deem
equitable and practicable for the purpose of
effecting such distribution, including, but not
limited to, the public or private sale of the
securities or property thus received, or any
part thereof, and the net proceeds of any such
sale (net of the fees and expenses of the
Depositary as provided in Article 7 hereof
and Section 5.09 of the Deposit Agreement)
shall be distributed by the Depositary to the
Owners of Receipts entitled thereto, all in the
manner and subject to the conditions
described in Section 4.01 of the Deposit
Agreement.
If any distribution consists of a
dividend in, or free distribution of, Shares, the
Depositary may 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 and expenses of the
Depositary as provided in Article 7 hereof
and Section 5.09 of the Deposit Agreement.
The Depositary may withhold any such
distribution of Receipts if it has not received
satisfactory assurances from the Company
that such distribution does not require
registration under the Securities Act of 1933
or is exempt from registration under the
provisions of such Act. In lieu of delivering
Receipts for fractional American Depositary
Shares in any such case, the Depositary will
sell the amount of Shares represented by the
aggregate of such fractions and distribute the
net proceeds, all in the manner and subject to
the conditions described in Section 4.01 of 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 RIGHTS.
In the event that the Company shall
offer or cause to be offered to the holders of
any Deposited Securities any rights to
subscribe for additional Shares or any rights
of any other nature, the Depositary shall have
discretion as to the procedure to be followed
in making such rights available to any
Owners or in disposing of such rights on
behalf of any Owners and making the net
proceeds available to such Owners or, if by
the terms of such rights offering or, for any
other reason, the Depositary may not either
make such rights available to any Owners or
dispose of such rights and make the net
proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If
at the time of the offering of any rights the
Depositary determines in its discretion that it
is lawful and feasible to make such rights
available to all Owners or to certain Owners
but not to other Owners, the Depositary may
distribute to any Owner to whom it
determines the distribution to be lawful and
feasible, in proportion to the number of
American Depositary Shares held by such
Owner, warrants or other instruments therefor
in such form as it deems appropriate.
In circumstances in which rights
would otherwise not be distributed, if an
Owner of Receipts requests the distribution of
warrants or other instruments in order to
exercise the rights allocable to the American
Depositary Shares of such Owner under the
Deposit Agreement, the Depositary will make
such rights available to such Owner upon
written notice from the Company to the
Depositary that (a) the Company has elected
in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed
such documents as the Company has
determined in its sole discretion are
reasonably required under applicable law.
If the Depositary has distributed
warrants or other instruments for rights to all
or certain Owners, then upon instruction from
such an Owner pursuant to such warrants or
other instruments to the Depositary from such
Owner to exercise such rights, upon payment
by such Owner to the Depositary for the
account of such Owner of an amount equal to
the purchase price of the Shares to be
received upon the exercise of the rights, and
upon payment of the fees and expenses of the
Depositary and any other charges as set forth
in such warrants or other instruments, the
Depositary shall, on behalf of such Owner,
exercise the rights and purchase the Shares,
and the Company shall cause the Shares so
purchased to be delivered to the Depositary
on behalf of such Owner. As agent for such
Owner, the Depositary will cause the Shares
so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and
shall, pursuant to Section 2.03 of the Deposit
Agreement, execute and deliver Receipts to
such Owner. In the case of a distribution
pursuant to the second paragraph of this
Article 13, such Receipts shall be legended in
accordance with applicable U.S. laws, and
shall be subject to the appropriate restrictions
on sale, deposit, cancellation, and transfer
under such laws.
If the Depositary determines in its
discretion that it is not lawful and feasible to
make such rights available to all or certain
Owners, it may sell the rights, warrants or
other instruments in proportion to the number
of American Depositary Shares held by the
Owners to whom it has determined it may not
lawfully or feasibly make such rights
available, and allocate the net proceeds of
such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 of the
Deposit Agreement and all taxes and
governmental charges payable in connection
with such rights and subject to the terms and
conditions of the Deposit Agreement) for the
account of such Owners otherwise entitled to
such rights, warrants or other instruments,
upon an averaged or other practical basis
without regard to any distinctions among such
Owners because of exchange restrictions or
the date of delivery of any Receipt or
otherwise.
The Depositary will not offer rights to
Owners unless both the rights and the
securities to which such rights relate are either
exempt from registration under the Securities
Act of 1933 with respect to a distribution to
all Owners or are registered under the
provisions of such Act; provided, that nothing
in the Deposit Agreement shall create, any
obligation on the part of the Company to file a
registration statement under the Securities Act
of 1933 with respect to such rights or
underlying securities or to endeavor to have
such a registration statement declared
effective or otherwise to register such rights
or securities under any other applicable laws
for any purpose. If an Owner of Receipts
requests the distribution of warrants or other
instruments, notwithstanding that there has
been no such registration under such Act, the
Depositary shall not effect such distribution
unless it has received an opinion from
recognized counsel in the United States for
the Company upon which the Depositary may
rely that such distribution to such Owner is
exempt from such registration.
The Depositary shall not be
responsible for any failure to determine that it
may be lawful or feasible to make such rights
available to Owners in general or any Owner
in particular.
14 CONVERSION OF FOREIGN
CURRENCY.
Whenever the Depositary or the
Custodian shall receive foreign currency, by
way of dividends or other distributions or the
net proceeds from the sale of securities,
property or rights, and if at the time of the
receipt thereof the foreign currency so
received can in the judgment of the
Depositary be converted on a reasonable basis
into Dollars and the resulting Dollars
transferred to the United States, the
Depositary shall convert or cause to be
converted, by sale or in any other manner that
it may determine, such foreign currency into
Dollars, and such Dollars shall be distributed
to the Owners entitled thereto or, if the
Depositary shall have distributed any
warrants or other instruments which entitle
the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments
upon surrender thereof for cancellation. Such
distribution may be made upon an averaged
or other practicable basis without regard to
any distinctions among Owners on account of
exchange restrictions, the date of delivery of
any Receipt or otherwise and shall be net of
any expenses of conversion into Dollars
incurred by the Depositary as provided in
Section 5.09 of the Deposit Agreement.
If such conversion or distribution can
be effected only with the approval or license
of any government or agency thereof, the
Depositary shall file such application for
approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall
determine that in its judgment any foreign
currency received by the Depositary or the
Custodian is not convertible on a reasonable
basis into Dollars transferable to the United
States, or if any approval or license of any
government or agency thereof which is
required for such conversion is denied or in
the opinion of the Depositary is not
obtainable, or if any such approval or license
is not obtained within a reasonable period as
determined by the Depositary, the Depositary
may distribute the foreign currency (or an
appropriate document evidencing the right to
receive such foreign currency) received by the
Depositary to, or in its discretion may hold
such foreign currency uninvested and without
liability for interest thereon for the respective
accounts of, the Owners entitled to receive the
same.
If any such conversion of foreign
currency, in whole or in part, cannot be
effected for distribution to some of the
Owners entitled thereto, the Depositary may
in its discretion make such conversion and
distribution in Dollars to the extent
permissible to the Owners entitled thereto and
may distribute the balance of the foreign
currency received by the Depositary to, or
hold such balance uninvested and without
liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
15 RECORD DATES.
Whenever any cash dividend or other
cash distribution shall become payable or any
distribution other than cash shall be made, or
whenever rights shall be issued with respect
to the Deposited Securities, or whenever the
Depositary shall receive notice of any
meeting of holders of Shares or other
Deposited Securities, or whenever for any
reason the Depositary causes a change in the
number of Shares that are represented by each
American Depositary Share, or whenever the
Depositary shall find it necessary or
convenient, the Depositary shall fix a record
date (a) for the determination of the Owners
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 a
notice, the form of which notice shall be in
the sole discretion of the Depositary, which
shall contain (a) such information as is
contained in such notice of meeting received
by the Depositary from the Company, 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
Australian law and of the Constitution of the
Company and any other provisions governing
Deposited Securities, to instruct the
Depositary as to the exercise of the voting
rights, if any, pertaining to the amount of
Shares or other Deposited Securities
represented by their respective American
Depositary Shares and (c) a statement as to
the manner in which such instructions may be
given or deemed given in accordance with the
last sentence of this paragraph if no
instruction is received, to the Depositary to
give a discretionary proxy to a person
designated to the Company. 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
insofar as practicable to vote or cause to be
voted the amount of Shares or other
Deposited Securities represented by the
American Depositary Shares evidenced by
such Receipt in accordance with the
instructions set forth in such request. The
Depositary shall not vote or attempt to
exercise the right to vote that attaches to the
Shares or other Deposited Securities, other
than in accordance with such instructions or
deemed instructions. If no instructions are
received by the Depositary from any Owner
with respect to any of the Deposited
Securities represented by the American
Depositary Shares evidenced by such Owners
Receipts on or before the date established by
the Depositary for such purpose, the
Depositary shall deem such Owner to have
instructed the Depositary to give a
discretionary proxy to a person designated by
the Company with respect to such Deposited
Securities and the Depositary shall give a
discretionary proxy to a person designated by
the Company to vote such Deposited
Securities; provided, that no such instruction
shall be deemed given and no such
discretionary proxy shall be given with
respect to any matter as to which the
Company informs the Depositary (and the
Company agrees to provide such information
as promptly as practicable in writing) that (x)
the Company does not wish such proxy given,
(y) substantial opposition exists or (z) such
matter materially and adversely affects the
rights of holders of Shares.
There can be no assurance that
Owners generally or any Owner in particular
will receive the notice described in the
preceding paragraph sufficiently prior to the
Instruction Date to ensure that the Depositary
will vote the Shares or Deposited Securities in
accordance with the provisions set forth in the
preceding paragraph.
17 CHANGES AFFECTING
DEPOSITED
SECURITIES.
Upon any change in nominal value,
change in par value, split-up, consolidation, or
any other reclassification of Deposited
Securities, or upon any recapitalization,
reorganization, merger or consolidation, or
sale of assets affecting the Company or to
which it is a party, or upon the redemption or
cancellation by the Company of the
Deposited Securities, any securities, cash or
property which shall be received by the
Depositary or a Custodian in exchange for, in
conversion of, in lieu of or in respect of
Deposited Securities shall be treated as new
Deposited Securities under the Deposit
Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the
existing Deposited Securities, the right to
receive the new Deposited Securities so
received, unless additional Receipts are
delivered pursuant to the following sentence.
In any such case the Depositary may execute
and deliver additional Receipts as in the case
of a dividend in Shares, or call for the
surrender of outstanding Receipts to be
exchanged for new Receipts specifically
describing such new Deposited Securities.
Immediately upon the occurrence of
any such split-up, consolidation or any other
reclassification covered by this Article 17 in
respect of Deposited Securities, the Company
shall notify the Depositary in writing of such
occurrence and may instruct the Depositary to
give notice thereof, at the Companys expense,
to Owners in accordance with Section 5.06 of
the Deposit Agreement.
18 LIABILITY OF THE
COMPANY AND
DEPOSITARY.
Neither the Depositary nor the
Company nor any of their respective
directors, officers, employees, agents or
affiliates shall incur any liability to any
Owner or holder of any Receipt, (i) if by
reason of any provision of any present or
future law or regulation of the United States,
the Commonwealth of Australia or any other
country, or of any other governmental or
regulatory authority or stock exchange or
automated quotation system (including,
without limitation, the NASDAQ National
Market, 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 war or terrorism or other
circumstances beyond its control, the
Depositary or the Company (or any of their
respective directors, officers, employees,
agents or affiliates) shall be prevented,
delayed or forbidden from or be subject to
any civil or criminal penalty on account of
doing or performing any act or thing which by
the terms of the Deposit Agreement 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 4.01, 4.02, or
4.03 of the Deposit Agreement, or an offering
or distribution pursuant to Section 4.04 of the
Deposit Agreement, such distribution or
offering may not be made available to
Owners of Receipts, and the Depositary may
not dispose of such distribution or offering on
behalf of such Owners and make the net
proceeds available to such Owners, then the
Depositary shall not make such distribution or
offering, and shall allow any rights, if
applicable, to lapse. Neither the Company
nor the Depositary nor any of their respective
directors, officers, employees, agents and
affiliates assume 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 nor any of
their respective directors, officers, employees,
agents or affiliates shall be under any
obligation to appear in, prosecute or defend
any action, suit, or other proceeding in respect
of any Deposited Securities or in respect of
the Receipts, on behalf of any Owner or
holder or other person. Neither the
Depositary nor the Company nor any of their
respective directors, employees, officers,
agents or affiliates shall be liable for any
action or nonaction by it in reliance upon the
advice of or information from legal counsel,
accountants, any person presenting Shares for
deposit, any Owner or holder of a Receipt, or
any other person believed by it in good faith
to be competent to give such advice or
information. The Depositary shall not be
responsible for any failure to carry out any
instructions to vote any of the Deposited
Securities, or for the manner in which any
such vote is cast or the effect of any such
vote, provided that any such action or
nonaction is in good faith. The Depositary
shall not be liable for any acts or omissions
made by a successor depositary whether in
connection with a previous act or omission of
the Depositary or in connection with a matter
arising wholly after the removal or
resignation of the Depositary, provided that in
connection with the issue out of which such
potential liability arises the Depositary
performed its obligations without negligence
or bad faith while it acted as Depositary. The
Company agrees to indemnify the Depositary,
its directors, officers, employees, agents and
affiliates and any Custodian against, and hold
each of them harmless from, any liability or
expense (including, but not limited to, the
reasonable fees and expenses of counsel)
which may arise out of any registration with
the Commission of Receipts, American
Depositary Shares or Deposited Securities or
the offer or sale thereof in the United States or
out of acts performed or omitted, in
accordance with the provisions of the Deposit
Agreement and of the Receipts, as the same
may be amended, modified, or supplemented
from time to time, (i) by either the Depositary
or a Custodian or their respective directors,
officers, employees, agents and affiliates,
except for any liability or expense arising out
of the negligence or bad faith of either of
them, or (ii) by the Company or any of its
directors, officers, employees, agents and
affiliates. No disclaimer of liability under the
Securities Act of 1933 is intended by any
provision of the Deposit Agreement.
19 RESIGNATION AND
REMOVAL OF THE
DEPOSITARY.
The Depositary may at any time
resign as Depositary under the Deposit
Agreement by written notice of its election
so to do delivered to the Company, such
resignation to take effect upon the
appointment of a successor depositary and
its acceptance of such appointment as
provided in the Deposit Agreement. The
Depositary may at any time be removed by
the Company by 120 days prior written
notice of such removal, to become effective
upon the later of (i) the 120th day after
delivery of the notice to the Depositary and
(ii) the appointment of a successor
depositary and its acceptance of such
appointment as provided in the Deposit
Agreement. 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.
20 AMENDMENT.
The form of the Receipts and any
provisions of the Deposit Agreement may at
any time and from time to time be amended
by agreement between the Company and the
Depositary without the consent of Owners or
holders of Receipts in any respect which they
may deem necessary or desirable. Any
amendment which shall impose or increase
any fees or charges (other than taxes and
other governmental charges, registration fees,
cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or
which shall otherwise prejudice any
substantial existing right of Owners of
Receipts, shall, however, not become
effective as to outstanding Receipts until the
expiration of thirty days after notice of such
amendment shall have been given to the
Owners of outstanding Receipts. Every
Owner of a Receipt at the time any
amendment so becomes effective shall be
deemed, by continuing to hold such Receipt,
to consent and agree to such amendment and
to be bound by the Deposit Agreement as
amended thereby. In no event shall any
amendment impair the right of the Owner of
any Receipt to surrender such Receipt and
receive therefor the Deposited Securities
represented thereby except in order to comply
with mandatory provisions of applicable law.
21 TERMINATION OF DEPOSIT
AGREEMENT.
The Depositary shall at any time at the
direction of the Company terminate the
Deposit Agreement by mailing notice of such
termination to the Owners of all Receipts then
outstanding at least 60 days prior to the date
fixed in such notice for such termination. The
Depositary may likewise terminate the
Deposit Agreement by mailing notice of such
termination to the Company and the Owners
of all Receipts then outstanding; at least 30
days prior to the date of termination, if at any
time 30 days shall have expired after the
Depositary shall have delivered to the
Company a written notice of its election to
resign and a successor depositary shall not
have been appointed and accepted its
appointment as provided in the Deposit
Agreement. On and after the date of
termination, the Owner of a Receipt, 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
2.05 of the Deposit Agreement, and (c)
payment of any applicable taxes or
governmental charges be entitled to delivery,
to him or upon his order, of the amount of
Deposited Securities represented by 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, shall not accept deposits of
Shares (and shall so instruct each Custodian),
and shall not give any further notices or
perform any further acts under the Deposit
Agreement, except that the Depositary shall
continue to collect dividends and other
distributions pertaining to Deposited
Securities, shall sell rights and other property
as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities,
together with any dividends or other
distributions received with respect thereto and
the net proceeds of the sale of any rights or
other property, in exchange for Receipts
surrendered to the Depositary (after
deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any
expenses for the account of the Owner of such
Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any
applicable taxes or governmental charges).
At any time after the expiration of four
months from the date of termination, the
Depositary may sell the Deposited Securities
then held under the Deposit Agreement and
may thereafter hold uninvested the net
proceeds of any such sale, together with any
other cash then held by it thereunder,
unsegregated and without liability for interest,
for the pro rata benefit of the Owners of
Receipts which have not theretofore been
surrendered, such Owners thereupon
becoming general creditors of the Depositary
with respect to such net proceeds. After
making such sale, the Depositary shall be
discharged from all obligations under the
Deposit Agreement, except to account for
such net proceeds and other cash (after
deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any
expenses for the account of the Owner of such
Receipt in accordance with the terms and
conditions of the Deposit Agreement, and any
applicable taxes or governmental charges)
and except for its obligations to the Company
under Section 5.08 of the Deposit Agreement.
Upon the termination of the Deposit
Agreement, the Company shall be discharged
from all obligations under the Deposit
Agreement except for its obligations to the
Depositary with respect to indemnification,
charges, and expenses of the Deposit
Agreement.
22 DISCLOSURE OF
INTERESTS.
The Company may from time to time
request Owners to provide information as to
the capacity in which such Owners own or
owned Receipts and regarding the identity of
any other persons then or previously
interested in such Receipts and the nature of
such interest. Each Owner agrees to provide
any information requested by the Company or
the Depositary pursuant to Section 3.04 of the
Deposit Agreement. The Depositary agrees
to comply with reasonable written
instructions received from the Company
requesting that the Depositary forward any
such requests to the Owners and to forward to
the Company any such responses to such
requests received by the Depositary. To the
extent that provisions of or governing any
Deposited Securities or the rules or
regulations of any governmental authority or
securities exchange or automated quotation
system may require the disclosure of
beneficial or other ownership of Deposited
Securities, other Shares and other securities to
the Company or other persons and may
provide for blocking transfer and voting or
other rights to enforce such disclosure or limit
such ownership, the Depositary shall use its
reasonable efforts to comply with Companys
instructions in respect of any such
enforcement or limitation.
23 SUBMISSION TO
JURISDICTION;
WAIVER OF
IMMUNITIES.
In the Deposit Agreement, the
Company has (i) appointed National
Registered Agents, 000 Xxxxxx xx Xxx
Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx
00000, as the Companys authorized agent
upon which process may be served in any
suit or proceeding arising out of or relating
to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or
this Agreement, (ii) consented and submitted
to the jurisdiction of any state or federal
court in the State of New York in which any
such suit or proceeding may be instituted,
and (iii) agreed that service of process upon
said authorized agent shall be deemed in
every respect effective service of process
upon the Company in any such suit or
proceeding.
To the extent that the
Company or any of its properties, assets or
revenues may have or hereafter become
entitled to, or have attributed to it, any right
of immunity, on the grounds of sovereignty
or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in
any respect thereof, from setoff or
counterclaim, from the jurisdiction of any
court, from service of process, from
attachment upon or prior to judgment, from
attachment in aid of execution or judgment,
or other legal process or proceeding for the
giving of any relief or for the enforcement of
any judgment, in any jurisdiction in which
proceedings may at any time be
commenced, with respect to its obligations,
liabilities or any other matter under or
arising out of or in connection with the
Shares or Deposited Securities, the
American Depositary Shares, the Receipts or
the Deposit Agreement, the Company, to the
fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and
agrees not to plead or claim, any such
immunity and consents to such relief and
enforcement.
