EXHIBIT 4.2
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BARBEQUES GALORE LIMITED
AND
MORGAN GUARANTY TRUST COMPANY OF NEW YORK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
Dated as of , 1997
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TABLE OF CONTENTS
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Page
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PARTIES............................................. 1
RECITALS............................................ 1
Section 1. Certain Definitions
(a) ADR Register......................... 1
(b) ADRs................................. 1
(c) ADS.................................. 1
(d) Custodian............................ 1
(e) Delivery Order....................... 1
(f) Deposited Securities................. 1
(g) Holder............................... 1
(h) Securities Act of 1933............... 1
(i) Securities Exchange Act of 1934...... 1
(j) Shares............................... 1
(k) Transfer Office...................... 1
(l) Withdrawal Order..................... 2
Section 2. ADR Certificates..................... 2
Section 3. Deposit of Shares.................... 2
Section 4. Issue of ADRs........................ 2
Section 5. Distributions on Deposited Securities 3
Section 6. Withdrawal of Deposited Securities... 3
Section 7. Substitution of ADRs................. 3
Section 8. Cancellation and Destruction of ADRs. 3
Section 9. The Custodian........................ 4
Section 10. Co-Registrars and Co-Transfer Agents. 4
Section 11. Lists of Holders..................... 4
Section 12. Depositary's Agents.................. 4
Section 13. Successor Depositary................. 4
Section 14. Reports.............................. 5
Section 15. Additional Shares.................... 5
Section 16. Indemnification...................... 5
Section 17. Notices.............................. 6
Section 18. Miscellaneous........................ 6
TESTIMONIUM......................................... 7
SIGNATURES.......................................... 7
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EXHIBIT A
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Page
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FORM OF FACE OF ADR................................. A-1
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Introductory Paragraph......................... A-1
(1) Issuance of ADRs...................... A-1
(2) Withdrawal of Deposited Securities.... A-2
(3) Transfers of ADRs..................... A-3
(4) Certain Limitations................... A-3
(5) Taxes................................. A-4
(6) Disclosure of Interests............... A-4
(7) Charges of Depositary................. A-4
(8) Available Information................. A-5
(9) Execution............................. A-6
Signature of Depositary........................ A-6
Address of Depositary's Office................. A-6
FORM OF REVERSE OF ADR.............................. A-7
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(10) Distributions on Deposited Securities. A-7
(11) Record Dates.......................... A-8
(12) Voting of Deposited Securities........ A-8
(13) Changes Affecting Deposited Securities A-9
(14) Exoneration........................... A-9
(15) Resignation and Removal of
Depositary; the Custodian............. A-10
(16) Amendment............................. A-10
(17) Termination........................... A-11
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DEPOSIT AGREEMENT dated as of , 1997 (the "Deposit Agreement") among
BARBEQUES GALORE LIMITED and its successors (the "Company"), MORGAN GUARANTY
TRUST COMPANY OF NEW YORK, as depositary hereunder (the "Depositary"), and all
holders from time to time of American Depositary Receipts issued hereunder
("ADRs") evidencing American Depositary Shares ("ADSs") representing Shares
(defined below) deposited hereunder. The parties hereto agree as follows:
1. Certain Definitions.
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(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
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(b) "ADRs" mean certificates evidencing ADSs substantially in the form of
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Exhibit A annexed hereto (the "form of ADR"). The form of ADR is hereby
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incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding upon the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced by
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an ADR represents the right to receive one Share and a pro rata share in any
other Deposited Securities.
(d) "Custodian" means the agent or agents of the Depositary (singly or
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collectively, as the context requires) named as Custodian in the form of ADR and
any additional or substitute Custodian appointed pursuant to Section 9.
(e) "Delivery Order" is defined in Section 3.
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(f) "Deposited Securities" as of any time means all Shares at such time
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deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(g) "Holder" means the person or persons in whose name an ADR is registered
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on the ADR Register.
(h) "Securities Act of 1933" means the United States Securities Act of
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1933, as from time to time amended.
(i) "Securities Exchange Act of 1934" means the United States Securities
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Exchange Act of 1934, as from time to time amended.
(j) "Shares" mean the ordinary shares, par value A$0.20 each, of the
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Company and shall include the rights to receive Shares specified in paragraph
(1) of the form of ADR.
(k) "Transfer Office" is defined in paragraph (3) of the form of ADR.
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(l) "Withdrawal Order" is defined in Section 6.
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2. ADR Certificates. ADRs shall be engraved, printed or otherwise
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reproduced at the discretion of the Depositary in accordance with its customary
practices in its American depositary receipt business, or at the request of the
Company typewritten and photocopied on plain or safety paper, and shall be
substantially in the form set forth in the form of ADR, with such changes as may
be required by the Depositary or the Company to comply with their obligations
hereunder, any applicable law, regulation or usage or to indicate any special
limitations or restrictions to which any particular ADRs are subject. ADRs may
be issued in denominations of any number of ADSs. ADRs shall be executed by the
Depositary by the manual or facsimile signature of a duly authorized officer of
the Depositary. ADRs bearing the facsimile signature of anyone who was at the
time of execution a duly authorized officer of the Depositary shall bind the
Depositary, notwithstanding that such officer has ceased to hold such office
prior to the delivery of such ADRs.
3. Deposit of Shares. In connection with the deposit of Shares hereunder,
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the Depositary or the Custodian may require the following in form satisfactory
to it: (a) a written order directing the Depositary to execute and deliver to,
or upon the written order of, the person or persons designated in such order an
ADR or ADRs evidencing the number of ADSs representing such deposited Shares (a
"Delivery Order"); (b) proper endorsements or duly executed instruments of
transfer in respect of such deposited Shares; (c) instruments assigning to the
Custodian or its nominee any distribution on or in respect of such deposited
Shares or indemnity therefor; and (d) proxies entitling the Custodian to vote
such deposited Shares. As soon as practicable after the Custodian receives
Deposited Securities pursuant to any such deposit or pursuant to paragraph (10)
or (13) of the form of ADR, the Custodian shall present such Deposited
Securities for registration of transfer into the name of the Custodian or its
nominee, to the extent such registration is practicable, at the cost and expense
of the person making such deposit (or for whose benefit such deposit is made)
and shall obtain evidence satisfactory to it of such registration. Deposited
Securities shall be held by the Custodian for the account and to the order of
the Depositary at such place or places and in such manner as the Depositary
shall determine. Deposited Securities may be delivered by the Custodian to any
person only under the circumstances expressly contemplated in this Deposit
Agreement.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
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notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the
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Custodian, the Depositary, subject to this Deposit Agreement, shall execute and
deliver at the Transfer Office, to or upon the order of any person named in such
notice, an ADR or ADRs registered as requested and evidencing the aggregate ADSs
to which such person is entitled.
5. Distributions on Deposited Securities. To the extent that the
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Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender
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of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made
by the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer or, if such
certificates may be registered, registered in the name of such Holder or as
ordered by such Holder in any Withdrawal Order) or by such other means as the
Depositary may deem practicable.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
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ADR of like tenor in exchange and substitution for any mutilated ADR upon
cancellation thereof or in lieu of and in substitution for such destroyed, lost
or stolen ADR, unless the Depositary has notice that such ADR has been acquired
by a bona fide purchaser, upon the Holder thereof filing with the Depositary a
request for such execution and delivery and a sufficient indemnity bond and
satisfying any other reasonable requirements imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
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Depositary shall be cancelled by the Depositary. The Depositary is authorized
to destroy ADRs so cancelled in accordance with its customary practices.
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9. The Custodian. Any Custodian in acting hereunder shall be subject to
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the directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time appoint one or more agents to act for it as
Custodian hereunder. Each Custodian so appointed (other than Morgan Guaranty
Trust Company of New York) shall give written notice to the Company and the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms hereof. Any Custodian may resign from its duties hereunder by at least 30
days written notice to the Depositary. The Depositary may discharge any
Custodian at any time upon notice to the Custodian being discharged. Any
Custodian ceasing to act hereunder as Custodian shall deliver, upon the
instruction of the Depositary, all Deposited Securities held by it to a
Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint and
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remove (i) co-registrars to register ADRs and transfers, combinations and split-
ups of ADRs and to countersign ADRs in accordance with the terms of any such
appointment and (ii) co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of ADRs at designated transfer offices in addition to
the Transfer Office on behalf of the Depositary. Each co-registrar or co-
transfer agent (other than Morgan Guaranty Trust Company of New York) shall give
notice in writing to the Company and the Depositary accepting such appointment
and agreeing to be bound by the applicable terms of this Deposit Agreement.
11. Lists of Holders. The Company shall have the right to inspect
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transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations under
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this Deposit Agreement through any agent appointed by it, provided that the
Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of such obligations as if no agent were
appointed.
13. Successor Depositary. If the Depositary acting hereunder shall resign
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or be removed, the Company shall use its best efforts to appoint a bank or trust
company having an office in the Borough of Manhattan, The City of New York, as
successor depositary hereunder. Every successor depositary shall execute and
deliver to its predecessor and to the Company written acceptance of its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become Depositary hereunder; but such predecessor,
upon payment of all sums due it and on the written request of the Company, shall
execute and deliver an instrument transferring to such
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successor all rights and powers of such predecessor hereunder and assigning all
interest in the Deposited Securities to such successor, and shall deliver to
such successor a list of the Holders. Any bank or trust company into or with
which the Depositary may be merged or consolidated, or to which the Depositary
shall transfer substantially all its American depositary receipt business, shall
be the successor of the Depositary without the execution or filing of any
document or any further act. Upon the appointment of any successor depositary
hereunder, any agent of the Depositary then acting hereunder shall forthwith
become such agent hereunder of such successor depositary and such successor
depositary shall, on the written request of any such agent, execute and deliver
to such agent any instruments necessary to give such agent authority as such
agent hereunder of such successor depositary.
14. Reports. On or before the first date on which the Company makes any
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communication available to holders of Deposited Securities or any securities
regulatory authority or stock exchange, by publication or otherwise, the Company
shall transmit to the Depositary a copy thereof in English or with an English
translation or summary. In connection with any registration statement under the
Securities Act of 1933 relating to the ADRs or with any undertaking contained
therein, the Company and the Depositary shall each furnish to the other and to
the United States Securities and Exchange Commission or any successor
governmental agency such information as shall be required to make such filings
or comply with such undertakings. The Company has delivered to the Depositary,
the Custodian and any Transfer Office, a copy of all provisions of or governing
the Shares and any other Deposited Securities which are issued or adopted by the
Company or any affiliate of the Company (other than copies of Australian laws,
rules and regulations), and promptly upon any change thereto, the Company shall
deliver to the Depositary, the Custodian and any Transfer Office, a copy (in
English or with an English translation) of such provisions as so changed. The
Depositary and its agents may rely upon the Company's delivery thereof for all
purposes of this Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
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controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
16. Indemnification. The Company shall indemnify, defend and save
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harmless each of the Depositary and its agents against
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any loss, liability or expense (including reasonable fees and expenses of
counsel) that may arise out of (a) its acceptance and performance of its powers
and duties in respect of this Deposit Agreement, except to the extent such loss,
liability or expense is due to its negligence or bad faith, or (b) any offer or
sale of ADRs, ADSs, Shares or other Deposited Securities or any registration
statement under the Securities Act of 1933 in respect thereof, except to the
extent such loss, liability or expense arises out of information (or omissions
from such information) relating to it furnished in writing to the Company by it
expressly for use in any such registration statement. The Depositary shall
indemnify, defend and save harmless the Company against any loss, liability or
expense incurred by the Company in respect of this Deposit Agreement to the
extent such loss, liability or expense is due to the negligence or bad faith of
the Depositary. The obligations set forth in this Section 16 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first
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mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
(a) Morgan Guaranty Trust Company
of New York
60 Wall Street (36th Floor)
New York, New York 10260
Attention: ADR Administration
Fax: (212) 648-5104 or 5105
(b) Barbeques Galore Limited
327 Chisholm Road
Auburn, Sydney
NSW 2144, Australia
Attention: [CONTACT PERSON]
Fax: 61 2-9[FACSIMILE]
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit of
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the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and owners of ADRs from time to
time shall be parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable
in any respect, the remaining provisions shall in no way be affected thereby.
This Deposit Agreement may be executed in counterparts, both of which shall be
deemed an original and all of which shall constitute one instrument.
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IN WITNESS WHEREOF, BARBEQUES GALORE LIMITED and MORGAN GUARANTY TRUST
COMPANY OF NEW YORK have duly executed this Deposit Agreement as of the day and
year first above set forth and all holders of ADRs shall become parties hereto
upon acceptance by them of ADRs issued in accordance with the terms hereof.
BARBEQUES GALORE LIMITED
By
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Name:
Title:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK
By
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Name:
Title: Vice President
7
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
No. of ADSs:
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Number ------------------------------
Each ADS represents
One Share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES, PAR VALUE A$0.20 EACH
of
BARBEQUES GALORE LIMITED
(Incorporated under the
laws of Australian Capital Territory, Australia)
MORGAN GUARANTY TRUST COMPANY OF NEW YORK, a New York corporation, as
depositary hereunder (the "Depositary"), hereby certifies that is
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the registered owner (a "Holder") of American Depositary Shares ("ADSs"),
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each (subject to paragraph (13)) representing one ordinary share, par value
A$0.20 each (including the rights to receive Shares described in paragraph (1),
"Shares" and, together with any other securities, cash or property from time to
time held by the Depositary in respect or in lieu of deposited Shares, the
"Deposited Securities"), of Barbeques Galore Limited, a corporation organized
under the laws of Australian Capital Territory, Australia (the "Company"),
deposited under the Deposit Agreement dated as of , 1997 (as amended from
time to time, the "Deposit Agreement") among the Company, the Depositary and all
Holders from time to time of American Depositary Receipts issued thereunder
("ADRs"), each of whom by accepting an ADR becomes a party thereto. The Deposit
Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the
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Deposit Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the
A-1
Custodian of: (a) Shares in form satisfactory to the Custodian; (b) rights to
receive Shares from the Company or any registrar, transfer agent, clearing agent
or other entity recording Share ownership or transactions; or, (c) other rights
to receive Shares (until such Shares are actually deposited pursuant to (a) or
(b) above, "Pre-released ADRs") only if (i) Pre-released ADRs are fully
collateralized (marked to market daily) with cash or U.S. government securities
held by the Depositary for the benefit of Holders (but such collateral shall not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
agrees in writing with the Depositary that such recipient (a) owns such Shares,
(b) assigns all beneficial right, title and interest therein to the Depositary,
(c) holds such Shares for the account of the Depositary and (d) will deliver
such Shares to the Custodian as soon as practicable and promptly upon demand
therefor and (iii) all Pre-released ADRs evidence not more than 20% of all ADSs
(excluding those evidenced by Pre-released ADRs), provided, however, that the
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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
earnings on collateral for Pre-released ADRs and its charges for issuance
thereof. At the request, risk and expense of the person depositing Shares, the
Depositary may accept deposits for forwarding to the Custodian and may deliver
ADRs at a place other than its office. Every person depositing Shares under the
Deposit Agreement represents and warrants that such Shares are validly issued
and outstanding, fully paid, nonassessable and free of pre-emptive rights, that
the person making such deposit is duly authorized so to do and that such Shares
(A) are not "restricted securities" as such term is defined in Rule 144 under
the Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and sold
freely in the United States or (B) have been registered under the Securities Act
of 1933. Such representations and warranties shall survive the deposit of
Shares and issuance of ADRs. The Depositary will not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the Securities Act of 1933 and not so registered; the Depositary may refuse to
accept for such deposit any Shares identified by the Company in order to
facilitate the Company's compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and
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(5), upon surrender of this ADR in form satisfactory to the Depositary at the
Transfer Office, the Holder hereof is entitled to delivery at the Custodian's
office of the Deposited Securities at the time represented by the ADSs evidenced
by this ADR. At the request, risk and expense of the Holder hereof, the
Depositary may deliver such Deposited Securities at such other place as may have
been requested by the Holder. Notwithstanding any other provision of the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of Form
F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
A-2
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
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designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, which
at all reasonable times will be open for inspection by Holders and the Company
for the purpose of communicating with Holders in the interest of the business of
the Company or a matter relating to the Deposit Agreement and (b) facilities for
the delivery and receipt of ADRs. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed or
accompanied by proper instruments of transfer, is transferable by delivery with
the same effect as in the case of negotiable instruments under the laws of the
State of New York; provided that the Depositary, notwithstanding any notice to
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the contrary, may treat the person in whose name this ADR is registered on the
ADR Register as the absolute owner hereof for all purposes. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be
split into other ADRs or combined with other ADRs into one ADR, evidencing the
same number of ADSs evidenced by this ADR, by the Holder hereof or by duly
authorized attorney upon surrender of this ADR at the Transfer Office properly
endorsed or accompanied by proper instruments of transfer and duly stamped as
may be required by applicable law; provided that the Depositary may close the
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ADR Register at any time or from time to time when deemed expedient by it or
requested by the Company.
(4) Certain Limitations. Prior to the issue, registration, registration
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of transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of any Deposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law (including, but not limited to
evidence of compliance with the Corporations Law, the Banking (Foreign Exchange)
Regulations or the Foreign Acquisitions and Takeovers Act 1975 of Australia),
regulations, provisions of or governing Deposited Securities and terms of the
Deposit Agreement and this ADR, as it may deem necessary or proper; and (c)
compliance with such regulations as the Depositary may establish consistent with
the Deposit Agreement. The issuance of ADRs, the acceptance of deposits of
Shares, the registration, registration of transfer, split-up or combination of
ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited
A-3
Securities may be suspended, generally or in particular instances, when the ADR
Register or any register for Deposited Securities is closed or when any such
action is deemed advisable by the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable
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by or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or,
subject to the last sentence of paragraph (2), any withdrawal of such Deposited
Securities until such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Company; and the Depositary and the Custodian
will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto.
(6) Disclosure of Interests. To the extent that the provisions of or
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governing any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
(7) Charges of Depositary. The Depositary may charge each person to whom
---------------------
ADRs are issued against deposits of Shares,
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including deposits in respect of Share Distributions, Rights and Other
Distributions (as such terms are defined in paragraph (10)), and each person
surrendering ADRs for withdrawal of Deposited Securities, U.S. $5.00 for each
100 ADSs (or portion thereof) evidenced by the ADRs delivered or surrendered.
The Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share Distributions, Rights and Other
Distributions prior to such deposit to pay such charge. The Company will pay
all other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration of transfer of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees in
respect of the Shares as of the date of the Deposit Agreement) and (iv) expenses
of the Depositary in connection with the conversion of foreign currency into
U.S. dollars (which are paid out of such foreign currency). These charges may
be changed in the manner indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
---------------------
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will mail copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the Company. The Company is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934 and accordingly files
certain reports with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and copied
at public reference facilities maintained by the Commission located at the date
hereof at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549.
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(9) Execution. This ADR shall not be valid for any purpose unless
---------
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
MORGAN GUARANTY TRUST COMPANY
OF NEW YORK,
as Depositary
By
--------------------------------------------
Authorized Officer
The Depositary's office is located at 60 Wall Street, New York, New York
10260.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
-------------------------------------
(5), to the extent practicable, the Depositary will distribute by mail to each
Holder entitled thereto on the record date set by the Depositary therefor at
such Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary
----
resulting from a cash dividend or other cash distribution or the net proceeds of
sales of any other distribution or portion thereof authorized in this paragraph
(10) ("Cash"), on an averaged or other practicable basis, subject to (i)
appropriate adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain Holders, and (iii)
deduction of the Depositary's expenses in (1) converting any foreign currency to
U.S. dollars by sale or in such other manner as the Depositary may determine to
the extent that it determines that such conversion may be made on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States by
such means as the Depositary may determine to the extent that it determines that
such transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
------
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion
------
of the Depositary representing rights to acquire additional ADRs in respect of
any rights to subscribe for additional Shares or rights of any nature available
to the Depositary as a result of a distribution on Deposited Securities
("Rights"), to the extent that the Company timely furnishes to the Depositary
evidence satisfactory to the Depositary that the Depositary may lawfully
distribute the same (the Company has no obligation to so furnish such evidence),
or (ii) to the extent the Company does not so furnish such evidence and sales of
Rights are practicable, any U.S. dollars available to the Depositary from the
net proceeds of sales of Rights as in the case of Cash, or (iii) to the extent
the Company does not so furnish such evidence and such sales cannot practicably
be accomplished by reason of the nontransferability of the Rights, limited
markets therefor, their short duration or otherwise, nothing (and any Rights may
lapse). (d) Other Distributions. (i) Securities or property available to the
-------------------
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights
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("Other Distributions"), by any means that the Depositary may deem equitable and
practicable, or (ii) to the extent the Depositary deems distribution of such
securities or property not to be equitable and practicable, any U.S. dollars
available to the Depositary from the net proceeds of sales of Other
Distributions as in the case of Cash. Such U.S. dollars available will be
distributed by checks drawn on a bank in the United States for whole dollars and
cents (any fractional cents being withheld without liability for interest and
added to future Cash distributions).
(11) Record Dates. The Depositary will, after consultation with the
------------
Company, if practicable, fix a record date (which shall be as near as
practicable to any corresponding record date set by the Company) for the
determination of the Holders who shall be entitled to receive any distribution
on or in respect of Deposited Securities, to give instructions for the exercise
of any voting rights, to receive any notice or to act in respect of other
matters and only such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt
------------------------------
from the Company of notice of any meeting or solicitation of consents or proxies
of holders of Shares or other Deposited Securities, the Depositary shall mail to
Holders a notice stating (a) such information as is contained in such notice and
any solicitation materials, (b) that each Holder on the record date set by the
Depositary therefor will be entitled to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in
which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon receipt of
instructions of a Holder on such record date in the manner and on or before the
date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted (or to grant a
discretionary proxy to a person designated by the Company to vote) the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Security. If no instructions are
received by the Depositary from any Holder with respect to any of the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs on or before
the date established by the Depositary for such purpose, the Depositary shall
deem such Holder to have instructed the Depositary to give a discretionary proxy
to a person designated by the Company with respect to such Deposited Securities
and the Depositary shall give a discretionary proxy to a person designated by
the Company to vote such Deposited Securities, provided that no such instruction
--------
shall be deemed given and no such discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary (and the
Company agrees to provide such information promptly in writing) that (x) the
Company does not
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wish such proxy given, (y) substantial opposition exists or (z) materially
affects the rights of holders of Shares; provided, further, that the Depositary
--------
shall not be obligated to give any such proxy unless and until the Depositary
has been provided with an opinion, which shall be given at the time of entering
into the Deposit Agreement and prior to each vote in which a discretionary proxy
is to be provided, of counsel to the Company, in form and substance satisfactory
to the Depositary, to the effect that (i) the granting of such proxy does not
subject the Depositary to any reporting obligations in the Commonwealth of
Australia, including any states thereof, (ii) the granting of such proxy will
not result in a violation of any of the laws of either the Commonwealth of
Australia or any states thereof and (iii) the voting arrangement and proxy as
contemplated herein will be given effect under Australian law.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4)
--------------------------------------
and (5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
-----------
them shall: (a) incur no liability (i) if law, regulation, the provisions of or
governing any Deposited Securities, act of God, war or other circumstance beyond
its control shall prevent, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this ADR provides shall be done or performed
by it, or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except to
perform its obligations to the extent they are specifically set forth in this
ADR and the Deposit Agreement without gross negligence or bad faith; (c) except
in the case of the Company and its agents, be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR; (d) in the case of the Company and its agents
hereunder be under no obligation to appear in,
A-9
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR, which in its opinion may involve it in expense
or liability, unless indemnity satisfactory to it against all expense (including
fees and disbursements of counsel) and liability be furnished as often as may be
required; or (e) not 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 Holder, or any other person believed by it to
be competent to give such advice or information. The Depositary, its agents and
the Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to have
been signed or presented by the proper party or parties. The Depositary and its
agents will not be responsible for any failure to carry out any instructions to
vote any of the Deposited Securities, for the manner in which any such vote is
cast or for the effect of any such vote. The Depositary and its agents may own
and deal in any class of securities of the Company and its affiliates and in
ADRs. The Company has agreed to indemnify the Depositary and its agents under
certain circumstances and the Depositary has agreed to indemnify the Company
against losses incurred by the Company to the extent such losses are due to the
negligence or bad faith of the Depositary. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary
----------------------------------------------------
may resign as Depositary by written notice of its election to do so delivered to
the Company, or be removed as Depositary by the Company by written notice of
such removal delivered to the Depositary; such resignation or removal shall take
effect upon the appointment of and acceptance by a successor depositary. The
Depositary may appoint substitute or additional Custodians and the term
"Custodian" refers to each Custodian or all Custodians as the context requires.
- ----------
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs
---------
and the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges (other
- --------
than stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, 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 Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law.
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(17) Termination. The Depositary may (upon written notice to the Company,
-----------
if at any time after 60 days have expired after the Depositary shall have
delivered to the Company a written notice of its election to resign, provided
--------
that no successor depositary shall have been appointed and accepted its
appointment as provided in the Deposit Agreement before the end of such 60
days), and shall at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders at
least 30 days prior to the date fixed in such notice for such termination.
After the date so fixed for termination, the Depositary and its agents will
perform no further acts under the Deposit Agreement and this ADR, except to
advise Holders of such termination, receive and hold (or sell) distributions on
Deposited Securities and deliver Deposited Securities being withdrawn. As soon
as practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account the
net proceeds of such sales, together with any other cash then held by it under
the Deposit Agreement, without liability for interest, in trust for the pro rata
--- ----
benefit of the Holders of ADRs not theretofore surrendered. After making such
sale, the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company shall be
discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents.
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