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Title: |
Deposit Agreement |
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Date: |
2006 |
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Preview shows 22KB of 148KB total |
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$71 |
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#2091234 |
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IMPACT CAPITAL LIMITED
(ABN 22 094 503 385)
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of _________________, 2006
================================================================================
{PAGE}
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
{PAGE}
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
{PAGE}
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _________________, 2006, among IMPACT
CAPITAL 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
1
{PAGE}
articles 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.
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{PAGE}
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 Impact Capital Limited (ABN 22 094 503 385),
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.
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{PAGE}
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
{PAGE}
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
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