As Filed with the Securities and Exchange Commission on November 29, 2005
Registration No. 333 -[___________]
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM F-6
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
For Depositary Shares Evidenced by American Depositary Receipts
-------------------
MESOBLAST LIMITED
(Exact name of issuer of deposited securities as specified in its charter)
N.A.
(Translation of issuer's name into English)
Commonwealth of Australia
(Jurisdiction of incorporation or organization of issuer)
THE BANK OF NEW YORK
(Exact name of depositary as specified in its charter)
One Wall Street, New York, N.Y. 10286
Telephone (212) 495-1784
(Address, including zip code, and telephone number, including area
code, of depositary's principal executive offices)
--------------------
The Bank of New York
ADR Division
One Wall Street, 29th Floor
New York, NY 10286
Telephone (212)-495-1784
(Address, including zip code, and telephone number,
including area code, of agent for service)
It is proposed that this filing become effective under Rule 466
|_| immediately upon filing
|_| on (Date) at (Time)
If a separate statement has been filed to register the
deposited shares, check the following box.|_|
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Proposed maximum Proposed maximum Amount of
Title of each class of Amount Aggregate price per unit aggregate registration
Securities to be registered to be registered (1) offering price (1) fee
- -----------------------------------------------------------------------------------------------------------------------------------
American Depositary Shares evidenced by American 50,000,000 $.05 $2,500,000 $294.25
Depositary Receipts, each American Depositary Share American
evidencing five ordinary shares of Mesoblast Limited. Depositary
Shares
===================================================================================================================================
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of American Depositary Receipts evidencing American Depositary
Shares.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall become effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective, on such date as
the Commission, acting pursuant to said Section 8(a), may determine.
- --------------------------------------------------------------------------------
The Prospectus consists of the proposed form of American Depositary
Receipt included as Exhibit A to the form of Deposit Agreement filed as Exhibit
(1) to this Registration Statement, which is incorporated herein by reference.
-2-
PART I
INFORMATION REQUIRED IN PROSPECTUS
Item 1. Description of the Securities to be Registered
CROSS REFERENCE SHEET
Location in Form of
American Depositary Receipt
Item Number and Caption Filed Herewith as Prospectus
----------------------- ----------------------------
(1) Name and address of Depositary Introductory Paragraph
(2) Title of American Depositary Receipts and Face of American Depositary
identity of deposited securities Receipt, top center
Terms of Deposit:
(i) The amount of deposited securities Face of American Depositary
represented by one unit of American Receipt - upper right corner
Depositary Shares
(ii) The procedure for voting, if any, Paragraphs (15) and (16)
the deposited securities
(iii) The collection and distribution of Paragraphs (12), (13)
dividends and (15)
(iv) The transmission of notices, reports Paragraphs (11), (15)
and proxy soliciting material and (16)
(v) The sale or exercise of rights Paragraph (14)
(vi) The deposit or sale of securities Paragraphs (12) and (17)
resulting from dividends, splits
or plans of reorganization
(vii) Amendment, extension or termination Paragraphs (20) and (21)
of the Deposit Agreement
(viii) Rights of holders of receipts to Paragraph (11)
inspect the transfer books of the
Depositary and the list of holders
of receipts
(ix) Restrictions upon the right to Paragraphs (2), (3), (4),
deposit or withdraw the (5), (6) and (8)
underlying securities
-3-
Location in Form of
American Depositary Receipt
Item Number and Caption Filed Herewith as Prospectus
----------------------- ----------------------------
(x) Limitation upon the liability of Paragraphs (14) and (18)
the Depositary
(3) Fees and Charges Paragraph (7)
Item 2. Available Information
Location in Form of
American Depositary Receipt
Item Number and Caption Filed Herewith as Prospectus
----------------------- ----------------------------
2(a) Statement that Mesoblast Limited Paragraph (11)
furnishes the Commission with
certain public reports and documents
required by foreign law or otherwise
under Rule 12g3-2(b) under the
Securities Exchange Act of 1934 and
that such reports and documents can
be inspected by holders of American
Depositary Receipts and copied at
public reference facilities
maintained by the Commission in
Washington, D.C.
-4-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. Exhibits
(1) Form of Deposit Agreement (including the form of American Depositary
Receipt), dated as of December _____, 2005, among Mesoblast Limited (the
"Issuer"), The Bank of New York, as Depositary (the "Depositary"), and each
Owner and Beneficial Owner from time to time of American Depositary Receipts
("ADRs") issued thereunder.
(4) Opinion of Emmet, Marvin & Martin, LLP, counsel for the Depositary, as
to the legality of the securities being registered.
Item 4. Undertakings
(a) The Depositary hereby undertakes to make available at the principal
office of the Depositary in the United States, for inspection by holders of the
ADRs, any reports and communications received from the Issuer which are both (1)
received by the Depositary as the holder of the deposited securities and (2)
made generally available to the holders of the underlying securities by the
Issuer.
(b) The Depositary hereby undertakes to notify each registered holder of
an ADR at least thirty days before any change in the fee schedule.
-5-
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, The Bank of
New York, on behalf of the legal entity created by the Deposit Agreement, dated
as of December ___________, 2005, among Mesoblast Limited, The Bank of New York,
as Depositary, and each Owner and Beneficial Owner of an American Depositary
Receipt issued thereunder certifies that it has reasonable grounds to believe
that all the requirements for filing on Form F-6 are met and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York, State of New York, on
November 29, 2005.
By: THE BANK OF NEW YORK,
as Depositary
By: \s\ U. Marianne Erlandsen
---------------------------------------
Name: U. Marianne Erlandsen
Title: Vice President
-6-
Pursuant to the requirements of the Securities Act of 1933, Mesoblast
Limited has caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in Commonwealth of Australia on November
29, 2005.
MESOBLAST LIMITED
By: \s\ Michael Spooner
--------------------------------------
Name: Michael Spooner
Title: Executive Chairman
Each of the undersigned hereby constitutes and appoints Kevin
Hollingsworth his true and lawful attorney-in-fact, with power of substitution,
in his name, place and stead, in any and all capacities, to sign any or all
amendments, including post-effective amendments, and supplements to this
Registration Statement, and to file the same, with all exhibits thereto and
other documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that said attorney-in-fact, or
his substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by or on behalf of the following persons
in the capacities indicated on November 29, 2005.
Name Title
- ---- -----
\s\ Michael Spooner Executive Chairman
- --------------------------- (Principal Executive Officer)
Michael Spooner
\s\ Kevin Hollingsworth Chief Financial Officer
- --------------------------- (Principal Financial and
Kevin Hollingsworth Accounting Officer)
\s\ Professor Silviu Itescu Director
- ---------------------------
Professor Silviu Itescu
\s\ Donal O'Dwyer Director
- ---------------------------
Donal O'Dwyer
\s\ Byron Mc Allister Director
- ---------------------------
Byron Mc Allister
\s\ Donald J. Puglisi Authorized Representative
- --------------------------- in the United States
Donald J. Puglisi
Managing Director
Puglisi & Associates
-7-
INDEX TO EXHIBITS
Exhibit
Number
- -------
(1) Form of Deposit Agreement, dated as of December ____, 2005, among the
Issuer, the Depositary and each Owner and Beneficial Owner from time to
time of ADRs issued thereunder.
(4) Opinion of Emmet, Marvin & Martin, LLP, counsel for the Depositary, as to
the legality of the securities being registered.
-8-
Exhibit 1
[EXECUTION COPY]
- --------------------------------------------------------------------------------
MESOBLAST LIMITED
(ABN 68 109 431 870)
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of _________________, 2005
- --------------------------------------------------------------------------------
ARTICLE 1. DEFINITIONS........................................................1
SECTION 1.1 AMERICAN DEPOSITARY SHARES....................................1
SECTION 1.2 ARTICLE; SECTION..............................................1
SECTION 1.3 BENEFICIAL OWNER..............................................2
SECTION 1.5 COMMISSION....................................................2
SECTION 1.6 CUSTODIAN.....................................................2
SECTION 1.7 DEPOSIT AGREEMENT.............................................2
SECTION 1.8 DEPOSIT, DELIVER, EXECUTE, ISSUE, REGISTER,
SURRENDER, TRANSFER, WITHDRAW OR CANCEL.....................2
SECTION 1.9 DEPOSITARY; CORPORATE TRUST OFFICE............................2
SECTION 1.10 DEPOSITED SECURITIES........................................3
SECTION 1.11 DOLLARS.....................................................3
SECTION 1.12 FOREIGN REGISTRAR.............................................3
SECTION 1.13 ISSUER........................................................3
SECTION 1.14 OWNER.........................................................3
SECTION 1.15 RECEIPTS......................................................3
SECTION 1.16 REGISTRAR.....................................................3
SECTION 1.17 RESTRICTED SECURITIES.........................................3
SECTION 1.18 SECURITIES ACT OF 1933........................................4
SECTION 1.19 SHARES........................................................4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.............................................4
SECTION 2.1 FORM AND TRANSFERABILITY OF RECEIPTS..........................4
SECTION 2.2 DEPOSIT OF SHARES.............................................5
SECTION 2.3 EXECUTION AND DELIVERY OF RECEIPTS............................6
SECTION 2.4 TRANSFER OF RECEIPTS; COMBINATION AND
SPLIT-UP OF RECEIPTS........................................6
SECTION 2.5 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES................7
SECTION 2.6 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS.......................................8
SECTION 2.7 LOST RECEIPTS, ETC............................................9
SECTION 2.8 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS..........9
SECTION 2.9 PRE-RELEASE OF RECEIPTS.......................................9
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS OF RECEIPTS.........................10
SECTION 3.1 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION............10
SECTION 3.2 LIABILITY OF OWNER FOR TAXES.................................10
SECTION 3.3 WARRANTIES ON DEPOSIT OF SHARES..............................10
SECTION 3.4 DISCLOSURE OF INTERESTS......................................11
ARTICLE 4. THE DEPOSITED SECURITIES..........................................11
SECTION 4.1 CASH DISTRIBUTIONS...........................................11
SECTION 4.2 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS..............11
SECTION 4.3 DISTRIBUTIONS IN SHARES......................................12
SECTION 4.4 RIGHTS.......................................................12
SECTION 4.5 CONVERSION OF FOREIGN CURRENCY...............................14
SECTION 4.6 FIXING OF RECORD DATE........................................15
SECTION 4.7 VOTING OF DEPOSITED SECURITIES...............................15
SECTION 4.8 CHANGES AFFECTING DEPOSITED SECURITIES.......................16
SECTION 4.9 REPORTS......................................................17
SECTION 4.10 LISTS OF OWNERS...........................................17
SECTION 4.11 WITHHOLDING...............................................17
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE ISSUER.....................17
i
SECTION 5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY...17
SECTION 5.2 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY
OR THE ISSUER..............................................18
SECTION 5.3 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN
AND THE ISSUER.............................................19
SECTION 5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY....................19
SECTION 5.5 THE CUSTODIANS...............................................20
SECTION 5.6 NOTICES AND REPORTS..........................................21
SECTION 5.7 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC...............21
SECTION 5.8 INDEMNIFICATION..............................................22
SECTION 5.9 CHARGES OF DEPOSITARY........................................23
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS.........................24
SECTION 5.11 EXCLUSIVITY...............................................24
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS......................24
ARTICLE 6. AMENDMENT AND TERMINATION.........................................24
SECTION 6.1 AMENDMENT....................................................24
SECTION 6.2 TERMINATION..................................................24
ARTICLE 7. MISCELLANEOUS.....................................................25
SECTION 7.1 COUNTERPARTS.................................................25
SECTION 7.2 NO THIRD PARTY BENEFICIARIES.................................26
SECTION 7.3 SEVERABILITY.................................................26
SECTION 7.4 OWNERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT......26
SECTION 7.5 NOTICES......................................................26
SECTION 7.6 GOVERNING LAW................................................27
SECTION 7.7 SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS.........................................27
SECTION 7.8 COMPLIANCE WITH U.S. SECURITIES LAWS.........................27
ii
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _________________, 2005, among MESOBLAST
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 Beneficial Owners 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:
ARTICLE 1
DEFINITIONS.
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 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 Article; Section.
Wherever references are made in this Deposit Agreement to an "Article"
or "Articles" or to a "Section" or "Sections", such references shall mean an
article or articles
1
or a section or sections of this Deposit Agreement, unless otherwise required by
the context.
SECTION 1.3 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.4 CHESS.
The term "CHESS" shall mean the Clearing House Electronic Subregister
System.
SECTION 1.5 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 1.6 Custodian.
The term "Custodian" shall mean, as of the date hereof, the principal
Melbourne, Victoria, Australia office of Australia and New Zealand Banking Group
Limited, as agent of the Depositary for the purposes of this Deposit Agreement,
and any other firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.5, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively.
SECTION 1.7 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 1.8 deposit, deliver, execute, issue, register, surrender, transfer,
withdraw or cancel.
The terms "deposit", "deliver", "execute", "issue", "register",
"surrender", "transfer", "withdraw" or "cancel", when used with respect to
Shares, shall refer, where the context requires, to an entry or entries or an
electronic transfer or transfers in an account or accounts maintained by
institutions authorized under Australian law to effect transfers of securities
and not to the physical transfer of certificates representing the Shares.
SECTION 1.9 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York banking
corporation and any successor as depositary hereunder. The term "Corporate Trust
Office", when used with respect to the Depositary, shall mean the office of the
Depositary which at the date of this Agreement is 101 Barclay Street, New York,
New York, 10286.
2
SECTION 1.10 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 1.11 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.12 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Issuer for the transfer and
registration of Shares.
SECTION 1.13 Issuer.
The term "Issuer" shall mean Mesoblast Limited (ABN 68 109 431 870),
incorporated under the laws of the Commonwealth of Australia, and its
successors.
SECTION 1.14 Owner.
The term "Owner" shall mean the person or persons in whose name a Receipt
is registered on the books of the Depositary maintained for such purpose.
SECTION 1.15 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.16 Registrar.
The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.17 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or American Depositary
Shares representing such Shares, which are acquired directly or indirectly from
the Issuer or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering or which are subject to resale limitations under Regulation D or Rule
144 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 or Australia, or under a shareholder agreement or the Issuer's
Constitution.
3
SECTION 1.18 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.19 Shares.
The term "Shares" shall mean ordinary shares in registered form of the
Issuer, without par value, 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.
ARTICLE 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 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. 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.
The Receipts may, with the prior written consent of the Issuer (which
consent shall not be unreasonably withheld) and, upon the written request of the
Issuer, shall 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 the Issuer or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange or automated quotation system,
including without limitation the NASDAQ National Market, upon which American
Depositary Shares may be listed or quoted or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Receipts are subject by reason of the date of issuance of the
underlying Deposited Securities or otherwise.
4
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 under the laws of New York; provided, however, that
the Depositary and the Issuer, 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 (which
may include delivery by electronic transfer through the facilities of CHESS or
otherwise) 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 and payments as may be required
by the Depositary or the Custodian in accordance with the provisions of this
Deposit Agreement, and, if the Depositary requires, together with a written
order directing the Depositary to 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 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 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, risk and expense of any person proposing to deposit Shares
or evidence of rights to receive Shares, and for the account of such person, the
Depositary may receive Shares to be deposited (by electronic transfer through
the facilities of CHESS or otherwise), documents of title thereto or evidence
that irrevocable instructions have been given to cause the transfer of such
Shares to the account of any Custodian, together with the other instruments and
payments herein specified, for the purpose of forwarding such documents of title
or such other instruments evidencing title to a Custodian for deposit hereunder.
Upon each delivery to a Custodian of Shares to be deposited hereunder by
electronic transfer through the facilities of CHESS or otherwise (or other
Deposited
5
Securities pursuant to Section 4.2, 4.3 or 4.8), together with the other
documents and payments above specified, if any, such Custodian shall, as soon as
registration of transfer can be accomplished, present such documents of title or
other instruments evidencing title to the Issuer or the Foreign Registrar,
electronically or otherwise, if applicable, for registration of transfer of the
Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
SECTION 2.3 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 evidenced 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 evidencing
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, 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 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.
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
6
combination of such Receipt or Receipts, execute and deliver a new Receipt or
Receipts for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents and
co-registrars 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 American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by (a) the
electronic transfer of Deposited Securities through the facilities of CHESS or
otherwise, or delivery of documents of, or other instruments evidencing, title
as may be required under the Issuer's Constitution or applicable law or
regulation, in the name of such Owner or as ordered by him and (b) the delivery
of 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 (by electronic
transfer through the facilities of CHESS or otherwise) to or upon the written
order of a person or persons designated in such order. Thereupon the Depositary
shall direct the Custodian to deliver (by electronic transfer through the
facilities of CHESS or otherwise) at the 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
7
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,
by electronic transfer through the facilities of CHESS or otherwise, documents
of, or other instruments evidencing, title as may be required under the Issuer's
Constitution or applicable law or regulation, the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt to the
Depositary for 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 such reasonable procedures, if any, as the
Depositary may establish consistent with the provisions of this Deposit
Agreement, including, without limitation, this Section 2.6.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Issuer are closed, or if any such action
is deemed necessary or advisable by the Depositary or the Issuer at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of this Deposit
Agreement, or for any other reason, subject to the provisions of Section 7.7
hereof. Notwithstanding any other provision of this Deposit Agreement or the
Receipts, 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 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 that, if sold by the Owner
thereof in the United
8
States, would be required to be registered under the provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares.
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. The
Depositary shall keep a full and complete record of all Receipts outstanding and
of their payment, cancellation and destruction when surrendered for a
commercially reasonable period of time.
SECTION 2.9 Pre-Release of Receipts.
Unless requested in writing by the Issuer to cease doing so, the
Depositary may, notwithstanding Section 2.3 hereof, execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). 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.
9
ARTICLE 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 of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Issuer or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Issuer may reasonably require by written request to the Depositary.
The Depositary may, and at the reasonable written request of the Issuer shall,
withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties made. Upon written request of the Issuer, the
Depositary shall deliver to the Issuer copies of the documents or instruments
delivered to the Depositary or any of its agents pursuant to this Section.
SECTION 3.2 Liability of Owner for Taxes.
If any tax or other governmental charge shall become by the Custodian or
the Depositary 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, and
upon receipt of instructions from the Issuer shall, refuse to effect any
transfer of such Receipt (or any split-up or combination thereof) or any
withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner
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 or
other evidence of title therefor, if applicable, are validly issued, fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares and that the person making such deposit is duly authorized so to do.
Every such person shall also be deemed to represent that the Shares deposited by
that person are not Restricted Securities and that the deposit of such Shares
and the sale of Receipts evidencing American Depositary Shares representing such
Shares by that person are not restricted under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
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SECTION 3.4 Disclosure of Interests.
The Issuer may from time to time request Owners to provide information (a)
as to the capacity in which such Owners own or owned American Depositary Shares,
(b) regarding the identity of any other persons then or previously interested in
such American Depositary Shares and (c) regarding the nature of such interest
and various other matters pursuant to applicable law or the Constitution or
other such corporate document of the Issuer, all as if such American Depositary
Shares were to the extent practicable the underlying Shares. Each Owner and
Beneficial Owner agrees to provide any information requested by the Issuer or
the Depositary pursuant to this Section. The Depositary agrees to use reasonable
efforts to comply with written instructions received from the Issuer requesting
that the Depositary forward any such requests to Owners or to forward to the
Issuer any responses to such requests received by the Depositary.
ARTICLE 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 (by checks drawn on a bank in the United States) the amount
thus received (net of the fees of the Depositary as provided in Section 5.9
hereof, if applicable) 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 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.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 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
11
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 Beneficial
Owners) the Depositary deems such distribution not to be feasible, the
Depositary may, after consultation with the Issuer, adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees of the Depositary as provided in Section 5.9) shall be
distributed by the Depositary to the Owners entitled thereto, all in the manner
and subject to the conditions described in Section 4.1. The Depositary may sell,
by public or private sale, an amount of securities or other property it would
otherwise distribute under this Section 4.2 that is sufficient to pay it fees
and expenses in respect of that distribution.
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 Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and after deduction or upon issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees and
expenses of the Depositary as provided in Section 5.9 (and the Depositary may
sell, by public or private sale, an amount of the Shares received sufficient to
pay its fees and expenses in respect of that distribution). The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company that such distribution does not require registration
under the Securities Act of 1933 or is exempt from registration under the
provisions of such Act. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary 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, after consultation
with the Issuer, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in
12
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 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.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees of the Depositary
and any other charges as set forth in such warrants or other instruments, the
Depositary shall, on behalf of such Owner, exercise the rights and purchase the
Shares, and the Issuer shall cause the Shares so purchased to be delivered to
the Depositary on behalf of such Owner. As agent for such Owner, the Depositary
will cause the Shares so purchased to be deposited pursuant to Section 2.2 of
this Deposit Agreement, and shall, pursuant to Section 2.3 of this Deposit
Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this section, such Receipts
shall be legended in accordance with applicable U.S. laws unless the Depositary
receives an opinion from U.S. counsel to the Issuer reasonably acceptable to the
Depositary stating that such Receipts are not required under U.S. laws to be so
legended, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees of the Depositary as provided in Section 5.9 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
13
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date of
delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to Owners or are
registered under the provisions of such Act. If an Owner of Receipts requests
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Issuer upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration. The Issuer will
have no obligation hereunder to register such rights under the Securities Act of
1933.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
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 approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
14
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 meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date which date shall be as near as practicable to the record
date set by the Issuer, if any, (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) responsible for any fee
assessed by the Depositary pursuant to 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 discretion of the Depositary or as otherwise
provided to the Depositary by the Issuer or its agent, which shall contain (a)
such information as is contained in such notice of meeting received by the
Depositary from the Issuer, (b) a statement that the Owners as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of Australian law and of the Issuer's Constitution and any other
provisions governing Deposited Securities, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective American Depositary
Shares and (c) a statement as to the manner in which such instructions may be
given, including an express indication that
15
instructions may be given (or be deemed given in accordance with the paragraph
immediately following this paragraph if no instruction is received) to the
Depositary to give a discretionary proxy to a person designated by the Issuer.
Upon the written request of an Owner on such record date, received on or before
the date established by the Depositary for such purpose, (the "Instruction
Date") the Depositary shall endeavor, in so far as practicable, to vote or cause
to be voted (or to grant a discretionary proxy to a person designated by the
Issuer to vote) the amount of Shares or other Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt in accordance with
the instructions set forth in such request. The Depositary shall not vote or
attempt to exercise the right to vote that attaches to the Shares or other
Deposited Securities, other than in accordance with such instructions.
If the Depositary does not receive instructions from an Owner on or before
the date established by the Depositary for such purpose, such Owner shall be
deemed, and the Depositary shall deem such Owner, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Issuer to
vote the underlying Shares, provided that no such discretionary proxy shall be
deemed given with respect to any matter as to which the Issuer informs the
Depositary in writing at the time notice of any meeting or solicitation of
consents or proxies is received by the Custodian (and the Issuer agrees to
provide such notification) that (i) the Issuer does not wish such proxy given,
(ii) substantial opposition exists or (iii) the rights of holders of Shares will
be materially and adversely affected.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
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,
redemption, cancellation or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation or sale of
assets affecting the Issuer or to which it is a party, any securities, cash or
property, which shall be received by the Depositary or a Custodian in exchange
for or in conversion of or in respect of Deposited Securities, shall be treated
as new Deposited Securities under this Deposit Agreement, and American
Depositary Shares shall thenceforth represent the new Deposited Securities so
received, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may (after consultation with the
Issuer, if practicable), and shall if the Issuer shall so request, execute and
deliver additional Receipts as in the case of a dividend in Shares, or call for
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
16
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 or the Custodian or its nominee as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Issuer. The Depositary shall also, upon written request, send
to the Owners copies of such reports furnished by the Issuer pursuant to Section
5.6.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Issuer, the Depositary shall 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.
Any other records maintained by the Depositary, the Custodian, the
Registrar or any co-transfer agent or co-registrar under this Deposit Agreement
shall be made available to the Issuer upon its reasonable request.
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. The Depositary shall forward to the Issuer or its agent such
information from its records as the Issuer may reasonably request to enable the
Issuer or its agent to file necessary reports with governmental agencies.
ARTICLE 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.
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 Owners
17
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 or at the written request of the Issuer.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or, after consultation with
the Issuer, appoint a Registrar or one or more co-registrars for registry of
such Receipts in accordance with any requirements of such exchange or exchanges.
The Issuer shall have the right, at all reasonable times, to inspect
transfer and registration records of the Depositary, the Registrar and any
co-transfer agents or co-registrars and to require such parties to supply copies
of such portions of their records as the Issuer may request.
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, Australia or any other
country, or of any governmental or regulatory authority or stock exchange or
automated quotation system, or by reason of any provision, present or future, of
the Issuer's Constitution, or by reason of any provision of any securities
issued or distributed by the Issuer (or an offering or distribution thereof), or
by reason of any act of God or war or terrorism or other circumstances beyond
its control, the Depositary or the Issuer (or any of their directors, employees,
agents or affiliates) shall be prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of 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 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.
18
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 Beneficial Owners, 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 Beneficial Owner
(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 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
inaction 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 liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
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 written
notice of its election so to do delivered to the Issuer, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
19
The Depositary may at any time be removed by the Issuer by 90 days prior
written notice of such removal, to become effective upon the later of (i) the
90th day after delivery of the notice to the Depositary and (ii) the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Issuer shall use its best 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, 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.
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. The Depositary in its
discretion may appoint a substitute or additional custodian or custodians, each
of which shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary any Custodian shall deliver (by electronic delivery through the
facilities of CHESS or otherwise) such of the Deposited Securities held by it as
are requested of it to any other Custodian or such substitute or additional
custodian or custodians. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian,
20
execute and deliver to such Custodian all such instruments as may be proper to
give to such Custodian full and complete power and authority as agent hereunder
of such successor depositary.
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 issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for such
securities, (each a "Distribution") the Issuer will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Issuer, which counsel
shall be reasonably 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 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. For the purposes of this Section, Jones Day is deemed to be
counsel satisfactory to the Depositary.
In the event that such registration under the Securities Act of 1933 would
be required in connection with any such Distribution, the Issuer shall have no
obligation to effect such registration.
In the event of any issuance of additional securities, the Issuer shall
have no obligation to register such additional securities under the Securities
Act of 1933 and, to the extent the Issuer in its discretion deems it necessary
or advisable in order to avoid any requirement to register such additional
securities under the Securities Act of 1933, may prevent Owners in the United
States from purchasing any such additional securities (whether pursuant to
preemptive rights or otherwise) and direct the Depositary not to
21
accept any Shares for deposit for such period of time following the issuance of
such additional securities and to adopt such other specific measures as the
Issuer may reasonably request in writing.
The Issuer agrees with the Depositary that neither the Issuer nor any
person controlled by, controlling or under common control with the Issuer will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Issuer or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933.
The Depositary will comply with the written instructions of the Issuer not
to accept knowingly for deposit hereunder any Shares identified in such
instructions at such times and under such circumstances as may be specified in
such instructions in order to facilitate the Issuer's compliance with the
securities laws of the United States.
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 any fees and
expenses incurred in seeking, enforcing or collecting such indemnity and 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 this Deposit
Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by 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 any 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
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary or its
Custodian their respective directors, employees, agents and affiliates due to
their negligence or bad faith.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or claim
promptly after such Indemnified Person becomes aware of such commencement and
shall consult in good faith with the Indemnifying Person as to the conduct of
the defense of such action or claim, which defense shall be reasonable under the
circumstances. No Indemnified Person shall compromise or settle any action or
claim without the consent in writing of the Indemnifying Person.
22
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 regarding the Receipts or
Deposited Securities or a distribution of Receipts pursuant to Section 4.3), or
by Owners, as applicable: (1) taxes and other governmental charges, (2) such
registration fees as may from time to time be in effect for the registration of
transfers of Shares generally on the Share register of the Issuer or Foreign
Registrar and applicable to transfers of Shares to or from the name of the
Depositary or its nominee or the Custodian or its nominee on the making of
deposits or withdrawals 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 of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.3, 4.3 or 4.4, and the surrender of Receipts
pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to, Sections 4.1 through 4.4
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 referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause (7)
treating all such securities as if they were Shares), but which securities are
instead distributed by the Depositary to Owners, (8) in addition to any fee
charged under clause (6), a fee of $.02 or less per American Depositary Share
(or portion thereof) for depositary services, which will accrue on the last day
of each calendar year and which will be payable as provided in clause (9) below
and (9) any other charge payable by the Depositary, any of the 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.
23
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.
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 subject to the Issuer's rights under Section 5.4 of this
Deposit Agreement.
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.
ARTICLE 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 written agreement between the
Issuer and the Depositary without the consent of Owners or Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners, 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 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.
The Depositary shall at any time at the direction of the Issuer terminate
this 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 this Deposit
Agreement by mailing
24
notice of such termination to the Issuer and the Owners of all Receipts then
outstanding if at any time 60 days shall have expired after the Depositary shall
have delivered to the Issuer a written notice of its election to resign and a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.4. 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, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights or other property as
provided in 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 the expiration of four months
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, 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 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). 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. The obligations of the Depositary under Section 5.8 shall
survive the termination of this Deposit Agreement.
ARTICLE 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
25
and the Custodians and shall be open to inspection by any Owner or Beneficial
Owner of a Receipt during business hours.
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 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial 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 Mesoblast Limited, Level 39, 55
Collins Street Melbourne, VIC 3000 Australia, Attention: Kevin Hollingsworth,
Chief Financial Officer, 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, 101 Barclay Street, New York, New York 10286, Attention: American
Depositary Receipt 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,
26
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, without regard to principles
concerning conflict of laws.
SECTION 7.7 Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Issuer hereby (i) irrevocably designates and appoints Corporation
Service Company, 80 State Street,6th Floor, Albany, New York 12207-2543, as the
Issuer's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Issuer in any such suit or
proceeding. The Issuer agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Issuer further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force. In the event the Issuer fails to continue such
designation and appointment in full force and effect, the Issuer hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Issuer at its address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed.
SECTION 7.8 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary, the
Issuer and the Depositary each agrees that it will not exercise any rights it
has under this Deposit Agreement to prevent the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
27
IN WITNESS WHEREOF, MESOBLAST LIMITED (ABN 68 109 431 870) and THE BANK OF
NEW YORK have duly executed this agreement as of the day and year first set
forth above and all Owners and Beneficial Owners shall become parties hereto
upon acceptance by them of Receipts issued in accordance with the terms hereof.
MESOBLAST LIMITED
By:
----------------------------------
Name: Kevin Hollingsworth
Title: Chief Financial Officer
THE BANK OF NEW YORK,
as Depositary
By:
----------------------------------
Name: U. Marianne Erlandsen
Title: Vice President
28
Exhibit A to Deposit Agreement
No.
-------------------------------------
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents five (5) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES
WITHOUT PAR VALUE OF
MESOBLAST LIMITED (ABN 68 109 431 870)
(INCORPORATED UNDER THE LAWS OF
THE COMMONWEALTH OF AUSTRALIA)
The Bank of New York as depositary (hereinafter called the "Depositary"),
hereby certifies that _____________, or registered assigns IS THE OWNER
OF_____________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of Mesoblast
Limited, incorporated under the laws of the Commonwealth of Australia (herein
called the "Issuer"). At the date hereof, each American Depositary Share
represents five Shares which are either deposited or subject to deposit under
the deposit agreement at the principal Melbourne, Victoria, Australia office of
Australia and New Zealand Banking Group Limited, Level 25, 530 Collins Street,
Melbourne, Victoria, Australia, 3001, (herein called the "Custodian"). The
Depositary's Corporate Trust Office is located at a different address than its
principal executive office. Its Corporate Trust Office is located at 101 Barclay
Street, New York, N.Y. 10286, and its principal executive office is located at
One Wall Street, New York, N.Y. 10286.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
101 BARCLAY STREET, NEW YORK, N.Y. 10286
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of _________________, 2005 (herein called the
"Deposit Agreement"), by and among the Issuer, the Depositary, and all Owners
and holders from time to time of Receipts issued thereunder, each of whom by
accepting a Receipt agrees to become a party thereto and become bound by all the
terms and conditions thereof. The Deposit Agreement sets forth the rights of
Owners and Beneficial Owners of the Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property, and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the 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 (a)
the electronic transfer of Deposited Securities through the facilities of CHESS
or otherwise, or delivery of documents of, or other instruments evidencing,
title as may be required under the Issuer's Constitution or applicable law or
regulation, in the name of such Owner or as ordered by him and (b) by the
delivery of any other securities, property and cash to which such Owner is then
entitled in respect of this Receipt. Such delivery will be made at the option of
the Owner hereof, either at the office of the Custodian or at the Corporate
Trust Office of the Depositary, provided that the forwarding of certificates for
Shares or other Deposited Securities for such delivery at the Corporate Trust
Office of the Depositary shall be at the risk and expense of the Owner hereof.
Notwithstanding any other provision of the Deposit Agreement or this Receipt,
the surrender of outstanding Receipts and withdrawal of Deposited Securities may
be suspended only for (i) temporary delays caused by closing the transfer books
of the Depositary or the Issuer or the deposit of Shares in connection with
voting at a shareholders' meeting, or the payment of dividends, (ii) the payment
of fees, taxes and similar charges, and (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This
2
Receipt may be split into other such Receipts, or may be combined with other
such Receipts into one Receipt, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination, or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary, the Custodian, or Registrar may require payment from
the depositor of the Shares or the presentor of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as provided in this Receipt, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such reasonable procedures, if any, as the
Depositary may establish consistent with the provisions of the Deposit Agreement
or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary or the Issuer are closed, or if any such action
is deemed necessary or advisable by the Depositary or the Issuer at any time or
from time to time because of any requirement of law or of any government or
governmental body or commission, or under any provision of the Deposit Agreement
or this Receipt, or for any other reason, subject to Article (22) hereof.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under the Deposit Agreement any Shares that, if sold by the Owner
thereof in the United States, would be required to be registered under the
provisions of the Securities Act of 1933, unless a registration statement is in
effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary. The
Depositary may, and upon receipt of instructions from the Issuer shall, refuse
to effect any transfer of such Receipt (or any split-up or combination thereof)
or any withdrawal of Deposited Securities represented by American Depositary
Shares evidenced by such Receipt until such payment is made, and may withhold
any dividends or other distributions, or may sell, for the account of the Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner hereof shall remain liable for any
deficiency.
5. WARRANTIES OF DEPOSITORS.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate or other
evidence of title therefor, if applicable, are validly issued, fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares and that the person making such deposit is duly authorized so to do.
Every such person shall also be deemed to represent that the Shares deposited by
that person are not Restricted Securities and that the deposit of such Shares
and the sale of Receipts evidencing American Depositary Shares representing such
Shares by that person are not restricted under the
3
Securities Act of 1933. Such representations and warranties shall survive the
deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner of a Receipt may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Issuer or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper
or as the Issuer may reasonably require by written request to the Depositary.
The Depositary may, and at the reasonable written request of the Issuer shall,
withhold the delivery or registration of transfer of any Receipt or the
distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties made. Upon written request of the Issuer, the
Depositary shall deliver to the Issuer copies of the documents or instruments
delivered to the Depositary or any of its agents pursuant to Section 3.1 of the
Deposit Agreement. No Share shall be accepted for deposit unless accompanied by
evidence satisfactory to the Depositary that any necessary approval has been
granted by any governmental body in Australia which is then performing the
function of the regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Issuer or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Issuer or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the Deposit
Agreement, (3) such cable, telex and facsimile transmission expenses as are
expressly provided in the Deposit Agreement, (4) such expenses as are incurred
by the Depositary in the conversion of foreign currency pursuant to Section 4.5
of the Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary
Shares (or portion thereof) for the execution and delivery of Receipts pursuant
to Section 2.3, 4.3 or 4.4, and the surrender of Receipts pursuant to Section
2.5 or 6.2 of the Deposit Agreement, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement including, but not limited to Sections 4.1 through 4.4
thereof, (7) a fee for the distribution of securities pursuant to Section 4.2 of
the Deposit Agreement, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause (7) treating all such securities as if they were
Shares), but which securities are instead distributed by the Depositary to
Owners, (8) in addition to any fee charged under clause (6), a fee of $.02 or
less per American Depositary Share (or portion thereof) for depositary services,
which will accrue on the last day of each calendar year and which will be
payable as provided in
4
clause (9) below 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 Article (8) hereof, may own and deal in any
class of securities of the Issuer and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Unless requested in writing by the Issuer to cease doing so, the
Depositary may, notwithstanding Section 2.3 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.5 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation from the person to whom Receipts are
to be delivered, that such person, or its customer, owns the Shares or Receipts
to be remitted, as the case may be, (b) at all times fully collateralized with
cash or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days notice, and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The number of American Depositary Shares which are
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive holder and Owner of
this Receipt by accepting or holding the same consents and agrees, that title to
this Receipt when properly endorsed or accompanied by proper instruments of
transfer, is transferable by delivery with the same effect as in the case of a
negotiable instrument under the laws of New York; provided, however, that the
Depositary and the Issuer, notwithstanding any notice to the contrary, may treat
the person in whose name this Receipt is registered on the books of the
Depositary as the absolute Owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement or for all other purposes, and
neither the Depositary nor the Issuer shall have any obligation or be subject to
any liability under the Deposit Agreement to any holder of a Receipt unless such
holder is the Owner thereof.
5
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Issuer currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying at the public reference facilities maintained by the
Commission located at 100 F Street, N.E., Washington, D.C. 20549.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Issuer which are both (a) received by the
Depositary or the Custodian or its nominee as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Issuer. The Depositary will also, upon written request, send
to Owners of Receipts copies of such reports when furnished by the Issuer
pursuant to the Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Owners of Receipts provided that such inspection shall not be for the
purpose of communicating with Owners of Receipts in the interest of a business
or object other than the business of the Issuer or a matter related to the
Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, if at the time
of receipt thereof any amounts received in a foreign currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and subject to the Deposit Agreement,
convert such dividend or distribution into dollars and shall distribute (by
checks drawn on a bank in the United States) the amount thus received (net of
the fees of the Depositary as provided in Section 5.9 of the Deposit Agreement,
if applicable) to the Owners of Receipts entitled thereto, provided, however,
that in the event that the Issuer or the Depositary is required to withhold and
does withhold from any cash dividend or other cash distribution in respect of
any Deposited Securities an amount on account of taxes, the amount distributed
to the Owners of the Receipts evidencing American Depositary Shares representing
such Deposited Securities shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of
6
the Deposit Agreement, the Depositary will cause the securities or property
received by it to be distributed to the Owners of Receipts entitled thereto, in
any manner that the Depositary may deem equitable and practicable for
accomplishing such distribution; provided, however, that if in the opinion of
the Depositary such distribution cannot be made proportionately among the Owners
of Receipts entitled thereto, or if for any other reason the Depositary deems
such distribution not to be feasible, the Depositary may, after consultation
with the Issuer, adopt such method as it may deem equitable and practicable for
the purpose of effecting such distribution, including, but not limited to, the
public or private sale of the securities or property thus received, or any part
thereof, and the net proceeds of any such sale (net of the fees of the
Depositary as provided in Section 5.9 of the Deposit Agreement) will be
distributed by the Depositary to the Owners of Receipts entitled thereto all in
the manner and subject to the conditions described in Section 4.1 of the Deposit
Agreement. The Depositary may sell, by public or private sale, an amount of
securities or other property it would otherwise distribute under this Article
that is sufficient to pay its fees and expenses in respect of that distribution.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may and shall if the Issuer shall so request, distribute
to the Owners of outstanding Receipts entitled thereto, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and after deduction or upon issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees and expenses of the Depositary as provided in Article 7
hereof and Section 5.9 of the Deposit Agreement (and the Depositary may sell, by
public or private sale, an amount of the Shares received sufficient to pay its
fees and expenses in respect of that distribution). The Depositary may withhold
any such distribution of Receipts if it has not received satisfactory assurances
from the Company that such distribution does not require registration under the
Securities Act of 1933 or is exempt from registration under the provisions of
such Act. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary will sell the amount of Shares
represented by the aggregate of such fractions and distribute the net proceeds,
all in the manner and subject to the conditions set forth in the Deposit
Agreement. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
The Depositary shall forward to the Issuer or its agent such information
from its records as the Issuer may reasonably request to enable the Issuer or
its agent to file necessary reports with governmental agencies.
7
13. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9 of
the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
14. RIGHTS.
In the event that the Issuer shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary, after consultation
with the Issuer, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or, for any other reason, the Depositary
may not either make such rights available to any Owners or dispose of such
rights and make the net proceeds available to such
8
Owners, then the Depositary shall allow the rights to lapse. If at the time of
the offering of any rights the Depositary determines in its discretion that it
is lawful and feasible to make such rights available to all Owners or to certain
Owners but not to other Owners, the Depositary may distribute, to any Owner to
whom it determines the distribution to be lawful and feasible, in proportion to
the number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Issuer to the Depositary
that (a) the Issuer has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Issuer has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees of the Depositary
and any other charges as set forth in such warrants or other instruments, the
Depositary shall, on behalf of such Owner, exercise the rights and purchase the
Shares, and the Issuer shall cause the Shares so purchased to be delivered to
the Depositary on behalf of such Owner. As agent for such Owner, the Depositary
will cause the Shares so purchased to be deposited pursuant to Section 2.2 of
the Deposit Agreement, and shall, pursuant to Section 2.3 of the Deposit
Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this Article, such Receipts
shall be legended in accordance with applicable U.S. laws, and shall be subject
to the appropriate restrictions on sale, deposit, cancellation, and transfer
under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the number of American
Depositary Shares held by the Owners to whom it has determined it may not
lawfully or feasibly make such rights available, and allocate the net proceeds
of such sales (net of the fees of the Depositary as provided in Section 5.9 of
the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to Owners or are
registered under the provisions of such Act. If an Owner of Receipts requests
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it
9
has received an opinion from recognized counsel in the United States for the
Issuer upon which the Depositary may rely that such distribution to such Owner
is exempt from such registration. The Issuer will have no obligation under the
Deposit Agreement to register such rights under the Securities Act of 1933.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date, which date shall be as near as practicable to the
record date set by the Issuer, if any, (a) for the determination of the Owners
of Receipts who shall be (i) entitled to receive such dividend, distribution or
rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, or (iii)
responsible for any fee assessed by the Depositary pursuant to the Deposit
Agreement, or (b) on or after which each American Depositary Share will
represent the changed number of Shares, subject to the provisions of the Deposit
Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Issuer, the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the discretion of the Depositary or as otherwise
provided to the Depositary by the Issuer or its agent, which shall contain (a)
such information as is contained in such notice of meeting received by the
Depositary from the Issuer, (b) a statement that the Owners as of the close of
business on a specified record date will be entitled, subject to any applicable
provision of Australian law and of the Issuer's Constitution and any other
provisions governing Deposited Securities, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective American Depositary
Shares and (c) a statement as to the manner in which such instructions may be
given, including an express indication that instructions may be given (or be
deemed given in accordance with the paragraph immediately following this
paragraph if no instruction is received) to the Depositary to give a
discretionary proxy to a person designated by the Issuer. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, (the "Instruction Date") the
Depositary shall endeavor, in so far as practicable, to vote or cause to be
voted (or to grant a discretionary proxy to a person designated by the Issuer to
vote) the amount of Shares or other Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions.
10
If the Depositary does not receive instructions from an Owner on or before
the date established by the Depositary for such purpose, such Owner shall be
deemed, and the Depositary shall deem such Owner, to have instructed the
Depositary to give a discretionary proxy to a person designated by the Issuer to
vote the underlying Shares, provided that no such discretionary proxy shall be
deemed given with respect to any matter as to which the Issuer informs the
Depositary in writing at the time notice of any meeting or solicitation of
consents or proxies is received by the Custodian (and the Issuer agrees to
provide such notification) that (i) the Issuer does not wish such proxy given,
(ii) substantial opposition exists or (iii) the rights of holders of Shares will
be materially and adversely affected.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the Instruction Date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, redemption, cancellation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the Issuer or to which it is a party,
any securities, cash or property, which shall be received by the Depositary or a
Custodian in exchange for or in conversion of or in respect of Deposited
Securities shall be treated as new Deposited Securities under the Deposit
Agreement, and American Depositary Shares shall thenceforth represent the new
Deposited Securities so received, unless additional Receipts are delivered
pursuant to the following sentence. In any such case the Depositary may (after
consultation with the Issuer, if practicable), and shall if the Issuer shall so
request, execute and deliver additional Receipts as in the case of a dividend in
Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE ISSUER AND DEPOSITARY.
Neither the Depositary nor the Issuer, nor any of their respective
directors, employees, agents or affiliates, shall incur any liability to any
Owner or holder of any Receipt, (i) if by reason of any provision of any present
or future law or regulation of the United States, Australia or any other
country, or of any other governmental or regulatory authority or stock exchange
or automated quotation system, or by reason of any provision, present or future,
of the Issuer's Constitution, or by reason of any provision of any securities
issued or distributed by the Issuer (or an offering or distribution thereof), or
by reason of any act of God or war or terrorism or other circumstances beyond
its control, the Depositary or the Issuer (or any of their directors, employees,
agents or affiliates) shall be prevented, delayed or forbidden from or be
subject to any civil or criminal penalty on account of doing or performing any
act or thing which by the terms of the Deposit Agreement or Deposited Securities
it is provided shall be done or performed, (ii) by reason of any non-performance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of the Deposit Agreement it is provided shall or may be done or
11
performed, (iii) by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement, (iv) for the inability of any
Owner or holder to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Owners or holders or
(v) for any special, consequential or punitive damages for any breach of the
terms of the Deposit Agreement. Where, by the terms of a distribution pursuant
to Sections 4.1, 4.2, or 4.3 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.4 of the Deposit Agreement, such distribution
or offering may not be made available to Owners of Receipts, and the Depositary
may not dispose of such distribution or offering on behalf of such Owners and
make the net proceeds available to such Owners, then the Depositary shall not
make such distribution or offering, and shall allow any rights, if applicable,
to lapse. Neither the Issuer nor the Depositary assumes any obligation or shall
be subject to any liability under the Deposit Agreement to Owners or Beneficial
Owners, except that they agree to perform their obligations specifically set
forth in the Deposit Agreement without negligence or bad faith. The Depositary
shall not be subject to any liability with respect to the validity or worth of
the Deposited Securities. Neither the Depositary nor the Issuer shall be under
any obligation to appear in, prosecute or defend any action, suit, or other
proceeding in respect of any Deposited Securities or in respect of the Receipts
on behalf of any Owner or holder or any person. Neither the Depositary nor the
Issuer shall be liable for any action or nonaction by it in reliance upon the
advice of or information from legal counsel, accountants, any person presenting
Shares for deposit, any Owner or holder of a Receipt, or any other person
believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith. The Depositary shall not be liable for any
acts or omissions made by a successor depositary whether in connection with a
previous act or omission of the Depositary or in connection with a matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Issuer agrees to indemnify the Depositary, its
directors, employees, agents and affiliates and any Custodian against, and hold
each of them harmless from, any liability or expense (including, but not limited
to, any fees and expenses incurred in seeking, enforcing or collecting such
indemnity and the fees and expenses of counsel) which may arise out of any
registration with the Commission of Receipts, American Depositary Shares or
Deposited Securities or the offer or sale thereof in the United States or out of
acts performed or omitted, pursuant to the provisions of or in connection with
the Deposit Agreement and of the Receipts, as the same may be amended, modified,
or supplemented from time to time, (i) by either the Depositary or a Custodian
or their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, or (ii) by the Issuer or any of its directors, employees, agents and
affiliates. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Issuer,
such resignation to take effect upon
12
the appointment of a successor depositary and its acceptance of such appointment
as provided in the Deposit Agreement. The Depositary may at any time be removed
by the Issuer by 90 days prior written notice of such removal, to become
effective upon the later of (i) the 90th day after delivery of the notice to the
Depositary and (ii) the appointment of a successor depositary and its acceptance
of such appointment as provided in the Deposit Agreement. The Depositary in its
discretion may appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by written agreement between the
Issuer and the Depositary without the consent of Owners or Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration of
thirty days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner of a Receipt at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby except in order to comply with mandatory
provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary shall at any time at the direction of the Issuer terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 60 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Issuer and the Owners of
all Receipts then outstanding if at any time 60 days shall have expired after
the Depositary shall have delivered to the Issuer a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Owner of a Receipt, will upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights or other property as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or
13
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of the Deposit Agreement, and any applicable taxes
or governmental charges). At any time after the expiration of four months from
the date of termination, the Depositary may sell the Deposited Securities then
held under the Deposit Agreement and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
thereunder, unsegregated and without liability for interest, for the pro rata
benefit of the Owners of Receipts which have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of the Deposit
Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Deposit Agreement, the Issuer shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and expenses of the Deposit
Agreement. The obligations of the Depositary under Section 5.8 of the Deposit
Agreement shall survive termination of the Deposit Agreement.
22. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement or this Receipt to the
contrary, the Issuer and the Depositary each agrees that it will not exercise
any rights it has under the Deposit Agreement to prevent the withdrawal or
delivery of Deposited Securities in a manner which would violate the U.S.
securities laws, including, but not limited to, Section I.A.(1) of the General
Instructions to the Form F-6 Registration Statement, as amended from time to
time, under the Securities Act of 1933.
23. DISCLOSURE OF INTERESTS.
The Issuer may from time to time request Owners to provide information (a)
as to the capacity in which such Owners own or owned American Depositary Shares,
(b) regarding the identity of any other persons then or previously interested in
such American Depositary Shares and (c) regarding the nature of such interest
and various other matters pursuant to applicable law or the Constitution or
other such corporate document of the Issuer, all as if such American Depositary
Shares were to the extent practicable the underlying Shares. Each Owner and
Beneficial Owner agrees to provide any information requested by the Issuer or
the Depositary pursuant to this Section. The Depositary agrees to use reasonable
efforts to comply with written instructions received from the Issuer requesting
that the Depositary forward any such requests to Owners or to forward to the
Issuer any responses to such requests received by the Depositary.
24. SUBMISSION TO JURISDICTION
In the Deposit Agreement, the Issuer has (i) appointed Corporation Service
Company, 80 State Street, 6th Floor, Albany, New York 12207-2543, as the
Issuer's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited
14
Securities, the American Depositary Shares, the Receipts or this Agreement, (ii)
consented and submitted to the jurisdiction of any state or federal court in the
State of New York in which any such suit or proceeding may be instituted, and
(iii) agreed that service of process upon said authorized agent shall be deemed
in every respect effective service of process upon the Issuer in any such suit
or proceeding.
15
Exhibit 4
EMMET, MARVIN & MARTIN, LLP 177 MADISON AVENUE
COUNSELLORS AT LAW MORRISTOWN, NEW JERSEY 07960
----- (973) 538-5600
120 Broadway FAX: (973) 538-6448
New York, New York 10271 ------
----- 1007 ORANGE STREET, SUITE 1460
(212) 238-3000 WILMINGTON, DELAWARE 19801
(212) 653-1760 (302)472-7000
----- FAX:(302)472-7120
Fax: (212) 238-3100 -----
Fax: (212) 653-1730
Writer's Direct Dial http://www.emmetmarvin.com 1351 WASHINGTON BOULEVARD
STAMFORD, CONNECTICUT 06902-4543
(203)425-1400
FAX:(203)425-1410
November 29, 2005
The Bank of New York,
as Depositary
101 Barclay Street
New York, New York, 10286
Re: American Depositary Receipts for Ordinary Shares of Mesoblast Limited.
----------------------------------------------------------------------
Ladies and Gentlemen:
We refer to the registration statement to be filed on Form F-6 under the
Securities Act of 1933 (the "Registration Statement") by the legal entity
created by the agreement (the "Deposit Agreement") for issuance of American
Depositary Shares ("ADSs") evidenced by American Depositary Receipts ("ADRs")
for ordinary shares of Mesoblast Limited for which you propose to act as
Depositary.
We are of the opinion that the ADSs covered by the Registration Statement,
when issued in accordance with the terms of the Deposit Agreement, will, when
sold, be legally issued and will entitle the holders thereof to the rights
specified in the Deposit Agreement and the ADRs.
This opinion may be used by you as an exhibit to the Registration
Statement.
Very truly yours,
/s/ Emmet, Marvin & Martin, LLP
-------------------------------
EMMET, MARVIN & MARTIN, LLP