Rule
424(b)(3)
File
No. 333-143386
OVERSTAMP: Effective
August 8, 2014, the Company’s name changed to Spark New Zealand Limited and the Company’s Internet website address
changed to investors.sparknz.co.nz.
OVERSTAMP: Upon effectiveness
of the termination of the Company’s reporting requirements under the Exchange Act, the Company will publish information in
English required to maintain the exemption from registration under Rule 12g3-2(b) under the Securities Exchange Act of 1934, as
amended, on its Internet web site or through an electronic information delivery system generally available to the public in its
primary trading market. The Company’s Internet web site address is www.telecom.co.nz.
IN
CERTAIN
CIRCUMSTANCES
SHARES
REPRESENTED
BY
THIS
RECEIPT MAY
BE
SOLD
WITHOUT
THE
CONSENT
OF
OWNERS.
IN
ADDITION THE
RIGHT
OF
OWNERS OF RECEIPTS TO DIRECT THE VOTING OF
SHARES MAY BE RESTRICTED AS DESCRIBED IN PARAGRAPH
9
BELOW.
No.
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[Sponsored-Exempt]
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AMERICAN DEPOSITARY SHARES (Each American Depositary
Share
represents eight
(8)
deposited shares)
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THE
BANK OF NEW YORK AMERICAN DEPOSITARY RECEIPT
FOR
ORDINARY SHARES HAVING NO PAR
VALUE
OF
TELECOM
CORPORATION OF
NEW ZEALAND LIMITED
(INCORPORATED UNDER
THE LAWS OF NEW
ZEALAND)
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 Telecom Corporation of New Zealand Limited, incorporated
under the laws of New Zealand (herein called the "Company"). At the date hereof, each American Depositary Share
represents eight (8) 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,
the principal Melbourne,
Victoria, Australia office of National
Australia Bank or the principal
Wellington, New Zealand office of
the Bank of New Zealand (herein collectively
called the "Custodian"). The Depositary's
Corporate Trust Office is located
at
a different address than its principal executive office. Its Corporate Trust
Office is located at 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
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1.
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THE DEPOSIT AGREEMENT.
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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 amended
and restated deposit agreement dated as of
June 13, 2007 (herein called the "Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and Beneficial Owners 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
offices 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.
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2.
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SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
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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 payment of all
applicable taxes and governmental charges, and subject to the terms and conditions of the Deposit Agreement, the Owner hereof is
entitled
to delivery, to him or upon his order, of the Deposited Securities at the
time represented by the American
Depositary Shares for which this Receipt is issued.
Delivery of such Deposited
Securities may be made by the delivery of (a) certificates
in
the name of the Owner hereof or as ordered by him or by the delivery of certificates
properly endorsed
or accompanied by proper instruments
of transfer and any
necessary tax stamps affixed and
(b) any
other securities, property and cash to which such Owner is then
entitled in respect of this Receipt. Such delivery will
be
made at the option of the Owner hereof, either at the office of the Custodian
or
at the Corporate
Trust
Office
of
the Depositary, provided that
the
forwarding of
certificates for Shares or other
Deposited Securities for such delivery at
the Corporate Trust Office of
the Depositary shall be at
the
risk
and
expense
of the Owner
hereof.
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3.
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TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
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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. This
Receipt may be split into other such Receipts, or may be combined with other
such Receipts
into one Receipt, representing the same
aggregate number
of American Depositary Shares as the Receipt or Receipts surrendered.
As a condition
precedent to the execution and delivery, registration of transfer, split-up, combination, or
surrender of any Receipt or withdrawal of any Deposited Securities, the Depositary, the Custodian, or Registrar
may require, or the
Company may reasonably require by written request to the
Depositary, 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 provided in this Receipt, may require the production of proof satisfactory to it as to the identity
and genuineness of any signature and may also require compliance with any regulations the Depositary may establish consistent with
the provisions of the Deposit Agreement
or this Receipt, including, without
limitation, this Paragraph (3) and Paragraph (23) of this Receipt.
The
delivery of Receipts
against deposits of Shares generally
or against deposits of particular
Shares may be suspended, or the transfer of
Receipts in particular instances may be
refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any period when the transfer books of the Depositary,
the Company or the Registrar or the Foreign Registrar are closed, or if any such action is deemed necessary or advisable by the
Depositary or
the Company at any time or from time to time because of any
requirement of law or of any government
or governmental body or
commission
or any
securities exchange on which the Shares or American Depositary Shares are listed
for trading, or under
any provision of
the
Deposit Agreement, or for any other reason, subject to Paragraph
(23) hereof. The surrender
of outstanding Receipts and withdrawal of Deposited Securities may not be suspended subject only to (i) temporary delays caused
by closing the
transfer books of the Depositary or the Company or the deposit of Shares
in connection with
voting at a shareholders' meeting, or the payment of dividends, (ii)
the payment of fees, taxes and similar charges, (iii) compliance with
any U.S. or foreign
laws or governmental regulations relating to the Receipts or to the withdrawal of the Deposited Securities, and (iv) any
other
reason that may at any time be specified in
paragraph l.A.(l ) of
the
General
Instructions to Form F-6 (as such General Instructions may be amended from time
to
time). Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit
under the Deposit Agreement any Shares required to be
registered under the provisions
of the Securities Act, unless a registration statement is in effect as to such
Shares.
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4.
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LIABILITY OF OWNER FOR T
AXES.
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If
any tax or other governmental charge payable by
the Depositary or the Custodian
shall become payable with respect
to any Receipt or any Deposited Securities represented
by any Receipt, such tax or other governmental charge shall be payable by the
Owner
or Beneficial Owner of such Receipt to the
Depositary,
provided that the Owner and the Beneficial Owner shall
remain jointly liable
for such taxes or charges and the Depositary may enforce payment against the Owner or Beneficial Owner at its absolute discretion
.. The Depositary may refuse to effect any transfer of such Receipt or any withdrawal of Deposited Securities represented by American
Depositary Shares evidenced by
such
Receipt
until such payment
is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner or Beneficial 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 or Beneficial Owner of such Receipt shall remain
liable
for any deficiency. The Custodian may refuse to
accept the deposit or Shares, and the
Depositary may refuse to issue American Depositary Shares, to
deliver American Depositary
Receipts,
to register the transfer, split-up or combination of American Depositary Receipts,
and to permit the withdrawal of Deposited Securities until payment in full of such tax or charge. Every Owner and Beneficial Owner
agrees to indemnify the Depositary, the Company, the Custodian
and any of their
agents, officers, employees and affiliates for, and to hold each of them harmless
from,
any claims with
respect to taxes (including applicable interest and
penalties thereon) arising from any tax benefit obtained for such Owner and/or Beneficial Owner.
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5.
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WARRANTIES OF DEPOSITORS.
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Every
person depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that such Shares and each
certificate therefore, if applicable, are validly issued, fully paid, legally obtained nonassessable, free of any preemptive rights
of holders
of outstanding shares, are not a holding, or part of a holding, in which
a person has a Relevant
Interest
in Shares
in breach of the Constitution and that the person making such deposit is
duly authorized
so to do, and that Shares presented for deposit are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and
are not, and the American Depositary Shares issuable
upon such deposit will not be, Restricted Securities and the Shares presented for deposit have not been stripped of
any rights or entitlements.
Every such person shall also be deemed to represent
that the deposit of such Shares or sale of Receipts evidencing American Depositary Shares representing such
Shares
by
that
person is not restricted under the Securities Act.
In addition, each Beneficial
Owner shall be
deemed to represent and warrant that by owning from time to time any
beneficial interest in any American Depositary Shares issued hereunder that
it is a
person with Relevant Interest. Such representations and warranties shall survive the
deposit
and withdrawal of Shares and issuance and
cancellation or transfer of Receipts.
If
any such representations or warranties are false in any
way, the Company and the Depositary shall be authorized, at the cost and expense
of
the person depositing
Shares, to take any and all actions necessary to correct the
consequences thereof.
Each
Owner and
Beneficial Owner hereby represents and
warrants at all times that their Receipts are not a
holding or part of a holding
in which a person has a Relevant Interest in Shares in breach of the Constitution.
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6.
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FILING PROOFS,
CERTIFICATES, AND OTHER INFORMATION.
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Any
person presenting
Shares for deposit or any Owner or any Beneficial Owner of
a Receipt may be required, and every Owner and Beneficial Owner agrees, from time to time to file with the Depositary or the Custodian
such proof of citizenship or residence, taxpayer status, payment of all applicable taxes or other governmental charges,
exchange control approval, legal or beneficial ownership of ADSs and Deposited Securities, compliance with applicable laws
and the terms of the Deposit Agreement and the provisions of, or governing, Deposited Securities, or such information relating
to the registration on the books of the Company or the Foreign Registrar,
and
to
provide such other information or documentation (or, in
the case of Shares in registered form presented for deposit, such information relating to the registration on the books
of the Company or of the approved agent of the Company for the registration and transfer of Shares) as the Depositary or the Custodian
may deem necessary or proper,
if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or proper to comply with applicable laws, regulations
or the
Constitution or to enable the Depositary to perform its obligations hereunder,
or as the Company may reasonably
require by written request to the Depositary. The Depositary
may withhold the delivery or registration of transfer of any
Receipt or the distribution of any dividend or sale
or distribution
of rights or
of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed or such representations and warranties made,
or such other documentation or information provided, to the Depositary's
satisfaction
and, if such document or information has been requested by the Company, it shall be provided to the Depositary's satisfaction consistent
with reasonable criteria
requested of the Depositary
by the
Company
in writing. The Depositary
shall
provide the Company,
upon its request,
with copies of documents it receives
pursuant to this Paragraph and Section
3. of the Deposit Agreement. Nothing herein shall obligate the Depositary to (i) obtain any information for the Company
if not
provided by the Owners
or
Beneficial Owners or (ii) verify or vouch for the accuracy of the information provided
by the Owners or Beneficial Owners. No Share shall be accepted for deposit unless accompanied by evidence satisfactory to
the Depositary (which may be an opinion of counsel satisfactory to the Depositary), that
any
necessary approval has been granted by
any governmental body
in New Zealand which is then performing the function of the regulation of currency exchange.
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7.
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CHARGES OF
DEPOSITARY.
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The
Company agrees to pay the fees, reasonable expenses and out-of-pocket charges of the Depositary and those of any Registrar only
in
accordance with agreements in writing entered into
between the Depositary and the Company
from time to time. The Depositary shall
present its
statement for such charges and
expenses
to the
Company once every three months. The charges and expenses of the Custodian,
any co-Registrar or co-transfer agent are for the sole account of
the Depositary.
The
following charges shall be incurred by any party depositing or withdrawing Shares
or
by any party surrendering Receipts or to whom Receipts are
issued (including, without
limitation, issuance pursuant
to a stock dividend or stock split declared by the Company
or an exchange of stock regarding
the Receipts
or Deposited Securities or a distribution of Receipts pursuant to Section
4.3
of the Deposit Agreement), or by Owners, as
applicable:
(1)
taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration
of transfers of
Shares generally on the Share register of the Company or Foreign Registrar
and
applicable to transfers of Shares to or from the name
of the Depositary or its nominee or the
Custodian or its nominee on the making
of deposits or withdrawals under the Deposit Agreement,
(3) such cable, telex and facsimile
transmission expenses
as are expressly provided in the Deposit Agreement,
(1)
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 of the Deposit Agreement and the surrender of Receipts pursuant to
Section 2.5 or 6.2 of the Deposit Agreement, (6) to the extent permitted by the rules of any securities exchange on which
the American Depositary
Shares
may be listed for trading, a fee
not in excess of $.02 or less
per American Depositary Share (or
portion thereof) for any cash distribution
made pursuant to the Deposit Agreement, including,
but not limited
to Sections 4.1 through 4.4 of the Deposit Agreement, (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, and (8) any other
charge payable by the Depositary, any of the Depositary's agents, including the Custodian, or the agents of the
Depositary's
agents in connection with the servicing of Shares or other Deposited
Securities (which charge shall be assessed
against Owners as of the date or
dates set by the Depositary
in accordance with Section 4.6 of the Deposit Agreement
and shall be payable at the sole discretion of the Depositary by billing such Owners for such charge or by deducting such
charge from one or more cash dividends or other cash distributions).
The
Depositary, subject to
Paragraph (8) hereof,
may
own and deal in any class of securities of the Company and its affiliates and in Receipts.
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8.
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PRE-RELEASE OF RECEIPTS.
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Notwithstanding
Section 2.3 of the Deposit Agreement, the Depositary may execute and
deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 of the Deposit Agreement
("Pre-Release").
The Depositary may, pursuant to Section 2.5 of the Deposit Agreement,
deliver
Shares upon the receipt and cancellation of Receipts which have been Pre-Released, whether or not such cancellation is prior
to the termination of such Pre-Release or the Depositary knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts
in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied
by a written representation from the person
to whom Receipts are to be delivered that such person, or its customer, owns the Shares or Receipts to be remitted, as the case
may
be, (b) at all times fully collateralized with cash or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and
(d) subject to such
further
indemnities and credit regulations
as the Depositary deems
appropriate.
The number of American Depositary Shares which are outstanding at
any time as a result of Pre-Releases will not normally exceed thirty percent (30%) of
the
Shares deposited under the
Deposit Agreement; provided, however, that
the Depositary reserves
the right to change or disregard such
limit
from time to
time as it
deems appropriate.
The Depositary may retain
for its own
account any compensation received by it in connection with the foregoing.
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9.
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RESTRICTIONS UPON OWNERSHIP.
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(a)
Each Owner and Beneficial Owner of Receipts acknowledges
and agrees that
(i)
each Share, and the terms upon which it is held by the Depositary, is subject to and governed
by the Constitution and the provisions
of Paragraph
(9) of this Receipt and Section 3.4
of the Deposit Agreement shall
apply notwithstanding any other provision in this
Receipt and the Deposit Agreement
to the contrary, (ii) except as
otherwise provided in the Constitution, such Owner's
or Beneficial Owner's Receipts represent a Relevant Interest in Voting Shares (as defined in the Constitution and hereinafter
referred to as "Shares" for purposes of
subparagraphs (a) to
(g) of this
Paragraph (9)) (iii), (a) no person shall have a
Relevant Interest in 10 percent or
more of
the total Shares outstanding other than in accordance with the prior written approval of the Kiwi
Shareholder
(as defined in the Constitution) and the Board of Directors of the
Company (the "Board") and
(b)
no
person other than a New Zealand
National
(as defined in the Constitution) shall have a Relevant Interest in
more than 49.9 percent of the total Shares outstanding, other than in accordance with the prior written approval of the Kiwi
Shareholder (such limitations being hereinafter referred to collectively as the "Limitation", and Shares designated
by
a notice described
in subparagraph
(d) herein
as a Disenfranchisement Notice as being declared to be held in
breach of the Limitation being hereinafter referred to as "Affected Shares"), (iv) any Owner or Beneficial Owner
of Receipts or any other person shall be bound by the Limitation, (v) the Board and/or the Kiwi Shareholder may, under the Constitution,
enforce the Limitation against the Depositary or the Custodian or any of
their
respective nominees (including without limitation, causing the
withdrawal of
the right of the Depositary
or the Custodian
or any of their respective nominees to vote Affected Shares, or causing
a sale of all or
part of the Affected Shares), and (vi) each Owner or Beneficial Owner
of
Receipts shall,
on behalf
of the Depositary or
Custodian, provide
information
required by, and comply with requests
from
the
Company,
the
Board or the Kiwi Shareholder to
provide
information pursuant to New Zealand law, the
rules and requirements of the
New Zealand Stock
Exchange, and any other
stock exchange on which the Shares are,
or will be, quoted, traded or listed
or the Constitution, including among other things, information in such form as the Company, the Board or the Kiwi Shareholder may
request
as to the capacity in which
such
Receipts or the Shares representing such Receipts are
owned or held, regarding the identity
and address of any person (including
such Owner or Beneficial Owner of Receipts)
having
a Relevant Interest in Shares by virtue of an interest in such Receipts
(such person or
persons hereinafter being referred to as a "Beneficial Holder")
and
the nature and extent of the interest of such Beneficial Holder,
and such
other
particulars as
will or
are likely to
assist in
identifying a Beneficial Holder with a
Relevant
Interest in Shares
and the nature of
that
Relevant Interest.
(b)
Every Owner and Beneficial Owner of Receipts to whom
a request is made in accordance
with the provisions of subparagraph (a)(vi) shall ensure that the Depositary is informed in writing of all relevant information
concerning whether one or more
persons have or may have a Relevant Interest in Shares
by virtue of an interest in Receipts. The Depositary shall forthwith pass on all such information to the Company, unless otherwise
instructed in
writing by the Company. The Depositary agrees to use its reasonable efforts
to forward, upon the request of the Company,
and at the Company's expense, any such
request from the Company to
the Owners
and
to forward to the Company any such responses to such requests received by the Depositary.
(c)
If
the
Depositary
or its nominee (or the
Custodian or any nominee of the Custodian)
receives a notice that the Board
or the Kiwi Shareholder intends to declare that
certain
Shares are Affected Shares, then the Depositary shall
send a copy of such notice to the Beneficial Holder specified. Such notice is hereafter referred to as an
"Intention
Notice".
If
the Board or the Kiwi
Shareholder does not specify a particular Beneficial Holder, then such Intention Notice shall apply to every Owner and the
Depositary shall forward such notice to every Owner. Any Owner or Beneficial Owner of Receipts or a person nominated by an Owner
or
Beneficial
Owner of Receipts may make
representations to the Board or the Kiwi Shareholder (as the case may be) for and on behalf of
the Depositary or the Custodian
as the registered Shareholder as to why such
Shares should not be treated as Affected Shares.
(d)
If
the
Depositary or its nominee (or the Custodian or any
nominee of the Custodian) as registered
holder of any Shares receives
a notice
from
the Board or the Kiwi Shareholder pursuant to the Constitution stating that some or all of
the Shares have been declared to be
Affected Shares, (such notice being hereinafter
referred to as
a "Disenfranchisement Notice") then the Depositary shall take
the actions as set forth in subparagraph
(e) of this Paragraph (9). The Company shall
take all reasonable steps to identify the Beneficial Holder who has a Relevant Interest in Shares in breach of the Limitation and
shall
consult
with the
Depositary prior to forwarding such Disenfranchisement Notice.
(e)
Following the receipt of a Disenfranchisement Notice, the Depositary shall give notice to each
Beneficial Holder whose name and address is specified in a Disenfranchisement Notice, of the action that is to be taken
under subparagraph (e) hereof and of the relevant matters provided for in
this Paragraph
(9) and, if such Beneficial Holder is specified in
the Disenfranchisement Notice, include
in the notice that such Beneficial Holder
must also act in accordance with subparagraph
(f)
hereof, and the Depositary shall also deny the voting instruction
rights attaching to any Receipt which represents Affected Shares (a "Relevant Receipt") to
the extent that the
voting
rights
attaching to Affected Shares represented by a Relevant Receipt are denied to the Depositary
or the Custodian or their respective nominees as notified in the Disenfranchisement Notice.
If
a Disenfranchisement Notice does not specify the name and address of a Beneficial Holder then
the
Depositary shall
give such
notice to all Owners and deny voting instruction rights pro rata as to all outstanding Receipts.
(f)
In the event
a
Beneficial Holder receives a notification that he has an interest in Shares which are declared to be Affected Shares, he
shall immediately take all
such steps as
may
be required to become the registered Owner of the Relevant Receipts on the books of the Depositary.
(g)
(i)
If
the
Disenfranchisement Notice does not state the number of Shares to which it applies, then the total number of the Shares represented
by the total number of Receipts held by a named Beneficial Holder shall be deemed to be Affected Shares; (ii) if the Disenfranchisement
Notice identifies the number of
Affected Shares and relates them to one or more specified
Beneficial
Holders, then the provisions of this Paragraph (9) shall
apply to the
number of Receipts in the
name of each such
specified Beneficial Holder or Beneficial Holders representing
that number of Affected
Shares, and (iii) neither the Board nor the Kiwi Shareholder
shall be under any obligation to make any statement in a Disenfranchisement Notice concerning the matters referred to in
this subparagraph (g),
but the Board or Kiwi Shareholder may make a statement
in
the Disenfranchisement Notice which combines
the effect of
the matters set forth above.
(h)
Under the Constitution the Board and the Kiwi Shareholder have the authority to sell the
Affected Shares for the account of the registered holder. Prior to selling such Affected Shares the Company shall consult
with the Depositary. In addition,
if the Company becomes aware that the Kiwi
Shareholder is intending to sell such Affected Shares, the Company will request that the Kiwi Shareholder consult with the Depositary.
If
any
Shares underlying any Relevant Receipt are sold by the Board or the Kiwi Shareholder, in accordance with such authority, such Relevant
Receipt shall thenceforth represent only the
right to receive any cash received by
the Depositary in respect
thereof, less the fees of the Depositary for cancellation
of such Relevant Receipt
and any expenses incurred or paid by the Depositary
in distributing
such cash to the Beneficial Holder of such Receipt, plus any
unsold Shares and other property otherwise
unaffected by this Paragraph (9). The Board
shall notify the Depositary forthwith upon the sale of any Affected Shares by it and shall request the Kiwi Shareholder to make
such a notification upon the sale
of any
Affected
Shares by the Kiwi Shareholder (a "Sale
Notification")
and upon the settlement of such sale shall
send to the Depositary the cash proceeds
of any such sale, net of the expenses of such sale and transmittal. The Depositary shall give notice of such sale forthwith upon
receipt of the Sale
Notification to any Beneficial Holder whose name and address is
specified in such Sale Notification as having an interest in the Shares sold or if no Beneficial Holder is so specified then to
all Owners. Forthwith upon receipt
of such
notice,
such Beneficial Holder shall surrender the Relevant Receipt for cancellation and, if applicable, issuance of a new Receipt. The
Depositary shall, upon (1) receipt
of the cash proceeds, and (2) surrender
of the Relevant Receipt
for cancellation, send such net amount of
cash (less any applicable fees
and expenses of the Depositary) and issue and
forward with such net cash a new Receipt representing any unsold deposited
Shares and
other property otherwise unaffected to the Owner of the Receipt surrendered. Upon issuance of a new Receipt, the Depositary
shall simultaneously cancel on its books the Receipts surrendered.
(i)
The Company agrees with the Depositary that the Board shall not sell any Affected Shares as described in Paragraph (9)(h)
hereof and Section 3.4(h) of
the Deposit Agreement, and further agrees with the
Depositary to use its reasonable efforts to obtain the consent of the Kiwi Shareholder not to sell any Affected Shares
as
so described, without in each case
first
delivering to
the Depositary a notice which specifies the number of Affected Shares
and the name and address
of the Beneficial Holder
of the relevant Receipts.
In
the event that upon the sale of Affected Shares by the Kiwi
Shareholder the Depositary
has not received a notice which identifies a specific Beneficial
Holder, then the Depositary
shall immediately thereafter:
(1)
notify all Owners that their Receipts, on and after the date of such sale of Affected Shares, represent their pro-rata share
of the remaining deposited Shares specifying the amount of Shares represented by each American Depositary Share outstanding on
and after such date and on and
after such date each American Depositary Share shall
represent such number of Shares;
(2)
upon
receipt
of the cash
proceeds of
any
such
sale
of Affected Shares, distribute such
cash proceeds pro rata to all Owners and otherwise in accordance with Sections 4.1 and 4.6
of the Deposit Agreement; and
(3)
upon surrender of any Receipt on and after such date, subject to
the provisions
of this Receipt and the
Deposit Agreement, deliver the amount of Shares per American
Depositary
Share surrendered as specified in the notice described
in (1) above.
(j)
The Depositary and each Owner and Beneficial Owner of Receipts
agrees with the
Company for itself and for
the Board and the Kiwi Shareholder to take every reasonable
step in
accordance with any Intention Notice, Disenfranchisement Notice, Sale Notification
or
any other notice or request issued pursuant to this Paragraph (9) to ensure
that the provisions of
this Paragraph (9) are effective,
together with any notice issued by the Board or the Kiwi
Shareholder which modifies
or withdraws a notice or request formerly issued, forthwith upon its receipt; provided however that, no such notice may
materially increase the Depositary's duties under the Deposit Agreement and
under
the Deposit Agreement
without
its written
consent unless
such duties are contemplated under the Deposit Agreement and
under the Deposit Agreement expressly or by necessary implication.
(k)
Except to the extent (if at all)
as is provided in
the Constitution, the Board and the Kiwi Shareholder shall be under no obligation to give, modify or withdraw a Disenfranchisement
Notice and shall have no liability whatsoever to any Person in respect of any of the foregoing. Nothing in either this Receipt
(including this Paragraph (9)) or the Deposit Agreement (including Section 3.4 of the Deposit Agreement) shall limit any right
or
remedy which the Company, the Board and Kiwi Shareholder may have under the Constitution
or
under any law.
(l
)
Any resolution or determination of, or decision or exercise of any discretion or power by, the
Company,
the Board, the Kiwi Shareholder
or the Depositary under or pursuant to the Constitution or this Paragraph (9) shall be final and conclusive and binding
on any Owner, Beneficial Owner of a Receipt or other person thereby affected
and shall not be
open to challenge, whether as to its validity or otherwise, or on any ground whatsoever. Neither the Company, the Board,
the Kiwi Shareholder, the Depositary, the Custodian, the Registrar nor the Foreign Registrar shall have any liability whatsoever
to any such Owner, Beneficial Owner of a Receipt or person, including but not limited to any Beneficial Holder, who fails to act
in accordance with such provisions or who is affected by any decision or exercise of any discretion or power by the Company, the
Board, the Kiwi Shareholder, the Depositary, the Custodian, the Registrar or the Foreign
Registrar.
(m)
Under New Zealand law, persons who hold a
relevant interest (as defined in the Securities
Markets Act
1988 (New Zealand)) in 5% or more of
the securities of
the Company (including persons who hold
such an interest
through
the holding
of Receipts) are
required to
give written
notice of
their
interest and certain
changes in their
interest
to the Company,
and to the New Zealand Stock Exchange as soon as
the person knows or ought to know
of their relevant
interest exceeding the
5%
threshold
or the change. Disclosure
to
the
Australian Stock
Exchange and
the
Company is
also
required in similar circumstances by
the Corporations Act 2001 (Australia).
If
any Owner or Beneficial Owner fails to
comply with the requirements of the Securities Markets
Act
1988
(New Zealand) or Part 6C of the Corporations Act 2001 (Australia), any
penalty
attaching to the Shares held under this Agreement shall apply (with all necessary
changes)
to rights attaching to the Receipts
evidencing
American Depositary Shares representing such Shares.
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, subject to the limitations contained herein
and
in the Receipt, title to this Receipt when properly endorsed or accompanied by proper instruments of transfer, is transferable
by delivery with
the same effect
as in
the case
of a
negotiable instrument,
provided, however, that the Depositary,
notwithstanding any notice to the contrary,
and except where provided otherwise in
this Receipt and in
the Deposit Agreement, 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 and for all other
purposes.
This
Receipt shall
not be entitled to any benefits under the Deposit
Agreement or be valid or
obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual or facsimile signature of a duly authorized signatory
of the Depositary and, if a Registrar for the Receipts shall have been appointed, countersigned by the manual or facsimile
signature of
a duly authorized officer of
the
Registrar.
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12.
|
REPORTS; INSPECTION
OF TRANSFER BOOKS.
|
The
Company currently furnishes the Securities and Exchange Commission (hereinafter called the "Commission") with certain
public reports and documents required by foreign law or otherwise by the periodic reporting requirements of the Securities Exchange
Act of 1934,
as from time to time amended. 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 Company which are both (a) received by the Depositary as the holder of the Deposited Securities and
(b) made generally available to the holders of such Deposited Securities by the Company. The Depositary will also send to
Owners of Receipts copies of such
reports when furnished by the Company pursuant to
the Deposit Agreement.
The
Depositary will keep books for the registration of
Receipts and transfers
of Receipts
which at all reasonable times shall be open for inspection by the
Company and the Owners
of Receipts provided that such inspection shall not be
for the
purpose of communicating with Owners of
Receipts in the interest of a business or object other than the business of the Company or
a matter related to the Deposit Agreement or the Receipts.
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13.
|
DIVIDENDS AND DISTRIBUTIONS.
|
Whenever
the Depositary or the Custodian receives
any cash dividend or other cash distribution
on any Deposited Securities, the Depositary
will, subject to the provisions of Paragraph
(14)
hereof, convert such dividend
or
distribution into Dollars and will distribute the amount thus received (net of the fees and expenses of the Depositary as provided
in Section 5.9 of
the Deposit Agreement) to the Owners of Receipts entitled thereto,
provided, however, that in the event that the Company or the Depositary is
required
to withhold
and does withhold from any cash dividend
or other cash distribution in respect of any Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed
to the Owners of the Receipts evidencing American Depositary
Shares representing such Deposited Securities shall
be reduced accordingly.
Subject
to the provisions of Section 4.11 and 5.9, if applicable, 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 the Deposit Agreement, the Depositary
will cause the securities
or property received by it to be
distributed to
the Owners of
Receipts
entitled thereto, after deduction or upon payment of any fees and expenses of the Depositary or any taxes or other governmental
charges, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution; provided, however,
that if in the opinion of the Depositary such distribution cannot be made proportionately
among
the Owners of Receipts entitled thereto,
or if for any other reason the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method as it may deem equitable and practicable
for the purpose of
effecting such distribution, including, but not limited to,
the public or private sale of the securities or property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees and expenses of the Depositary as provided in Section 5.9 of the Deposit Agreement) shall be distributed
by
the Depositary
to the Owners of Receipts
entitled thereto as in the case of a
distribution received in cash.
If
any distribution consists of a dividend in, or free distribution
of,
Shares, the Depositary may, with the Company's approval, and shall if the Company shall so request,
distribute to the
Owners of outstanding Receipts entitled thereto, additional Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free distribution subject to the terms and conditions of the Deposit
Agreement with respect to the deposit of Shares and the issuance of American Depositary Shares evidenced by Receipts, including
the withholding of any
tax or other governmental
charge as provided
in Section 4.11 of the Deposit
Agreement and the payment of the fees of the Depositary as provided in Section
5.9
of the
Deposit Agreement. In lieu of delivering Receipts for fractional American Depositary
Shares in any such case, the Depositary will sell the amount of Shares represented by the aggregate of such fractions and distribute
the
net proceeds,
all in the manner and
subject to the conditions set forth in the Deposit Agreement.
If
additional
Receipts
are not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities represented thereby.
In
the event that the Depositary determines that any distribution in property in respect of the Deposited Securities (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 and
the balance
of
any such property to the Owners of Receipts entitled thereto.
14.
CONVERSION
OF FOREIGN
CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of dividends or other distributions or
the net proceeds
from the sale of securities, property or rights, and if at
the time
of the receipt
thereof the foreign
currency so received can in the reasonable 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 reasonable judgment any
foreign
currency
received by the Depositary
is
not convertible on a
reasonable
basis into Dollars transferable to the
United States, or if any approval or
license
of any government or agency thereof which is required for such conversion is
denied or in the reasonable opinion of the Depositary is not obtainable, or if any such approval or license is not obtained within
a
reasonable period as determined by
the
Depositary,
the
Depositary
may distribute the foreign currency (or an appropriate document evidencing the right to receive such
foreign currency)
received
by the
Depositary to,
or
in
its
discretion may hold such
foreign
currency uninvested and without liability for
interest
thereon for the respective accounts
of, the Owners
entitled
to
receive
the same.
If
any such conversion
of foreign
currency,
in
whole or in
part, cannot
be effected for distribution
to some
of
the
Owners
entitled thereto,
the
Depositary
may in
its discretion make such conversion and distribution in
Dollars to the extent
permissible to the Owners
entitled
thereto
and may distribute the balance
of the foreign currency received by the Depositary to,
or hold such balance uninvested and
without liability
for interest thereon
for the
respective
accounts
of,
the
Owners entitled
thereto.
15.
RIGHTS.
In
the event that the Company shall offer or cause to be offered to the holders of any Deposited Securities any rights to subscribe
for additional Shares or any rights of any
other
nature, the Depositary shall have
discretion as to the procedure to be followed in
making such rights available to any
Owners or in disposing of such rights on behalf
of any Owners and making the net proceeds available in Dollars
to such Owners or, if
by the terms of such rights offering or, for any other reason, the Depositary may not either make such rights available to any
Owners or dispose of such rights and make the net proceeds available to such Owners, then the Depositary shall allow the rights
to lapse; provided, however, if at the time of
the offering of
any rights the
Depositary determines in
its discretion that it is lawful and feasible to
make such rights available
to
all Owners or to certain Owners but not to other Owners, the Depositary may, if
instructed by the Company, distribute, to any Owner to whom it determines the distribution to be lawful and feasible,
in proportion to the number of
American Depositary Shares
held by such Owner, warrants
or other instruments therefor in such form as it
deems appropriate.
If
the Depositary determines in its discretion
that it is not lawful and feasible to make such rights available
to certain Owners,
it
shall use
reasonable efforts
to
sell the
rights or warrants or
other instruments in proportion to the number of American Depositary Shares held by the Owners to whom
it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales
(net of the fees of the Depositary as provided
in Section 5.9 of the Deposit Agreement
and all applicable taxes and
governmental charges) for the
account
of such Owners otherwise entitled to such rights, warrants
or other instruments, upon an averaged or other practical
basis without regard
to any distinctions among such Owners because of exchange restrictions or the date of delivery
of any Receipt or otherwise. The Depositary shall not be responsible for any failure to determine that it may be lawful
or feasible to make such rights available to Owners in general or any Owner in
particular.
If
an Owner of Receipts requests
the distribution of warrants or other instruments
in order to exercise the rights allocable to the American Depositary Shares
of such
Owner under
the
Deposit
Agreement, the
Depositary will
make
such rights available to
such Owner upon written notice from the Company to the Depositary
that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Owner has
executed
such documents as the Company has determined in its sole discretion are reasonably required under applicable law. Upon
instruction pursuant to such warrants or other instruments to the Depositary from such Owner to exercise such rights, upon
payment by such
Owner
to the Depositary
for the account of such
Owner of an amount equal to the purchase price of the Shares
to be received upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other instruments, the Depositary shall, on behalf
of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause
the Shares so purchased
to be delivered to the Depositary on behalf of
such Owner.
As agent for such Owner, the Depositary will cause the Shares so
purchased to be
deposited pursuant to Section 2.2 of the Deposit Agreement, and shall,
pursuant to Section 2.3 of the Deposit Agreement, execute and deliver to such Owner Restricted Receipts.
If
registration under the Securities Act of 1933 of the securities
to which
any rights relate is required in order for the Company to offer such rights to Owners and sell the securities upon the exercise
of such rights, the Depositary will not offer such rights to the Owners unless and until such a registration statement is
in effect, or unless the offering and sale
of such
securities to the Owners
of
such Receipts
are exempt
from registration under the provisions of such Act and an opinion of
counsel satisfactory to the Depositary and the Company has
been obtained.
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 (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 (b) on or after which each
American
Depositary Share
will represent
the changed
number of Shares,
subject to the provisions of the
Deposit Agreement.
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17.
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VOTING
OF DEPOSITED SECURITIES.
|
Upon
receipt of notice of any meeting of holders of Shares, the Depositary shall, as
soon
as practicable thereafter, mail to the Owners a notice, the form of which notice shall be prepared by the Depositary and approved
by the Company, which shall
contain
(a)
such information as is contained
in such notice
of meeting, (b) a statement that the Owners as of
the close of business on a
specified Record Date, set by the Depositary, will be entitled,
subject to any applicable
provision
of the laws of New Zealand and of the Constitution to instruct the Depositary
as
to the exercise of the voting rights, if any, in the event a poll is called pertaining
to the amount of Shares represented by their respective American Depositary Shares, and
to
demand a poll, and a brief statement as
to the manner in which such instructions
may be
given, and (c) a statement that if a poll
is called and no instructions
as to voting are received
by the Depositary from any Owner with respect to any of the Shares represented by the American Depositary Shares evidenced
by such Owner's Receipts on or before the date established by the Depositary for such
purpose
("Receipt Date"), then the Depositary will not vote or cause such Shares to be voted. The Depositary may only vote such
Shares in the event a poll, as referred to the Constitution, is called. Upon the
written
request of an Owner, who was an Owner on the Record Date referred
to in Paragraph (b)
above, received on or before the Receipt Date, and in
the event a poll is called, the
Depositary shall endeavor in so far as practicable to vote or
cause to be voted, the
amount of
Shares represented 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, other than in accordance with such
instructions. Shares or other Deposited Securities
represented by American Depositary
Shares for which no specific voting instructions are received by the
Depositary from
the Owner shall not be voted
Unless
specifically instructed by at least 5 Owners or Beneficial Owners of Receipts (and a certificate from an Owner of Receipts giving
the number of holders who have made such
request shall be sufficient for these purposes)
evidencing American
Depositary Shares which
represent Shares having the right to vote at
a meeting,
or by Owners of
Receipts in respect
of
American Depositary Shares
representing Shares:
(a)
which
represent
not
less than one-tenth of the total voting rights capable of being cast at such meeting; or
(b)
which confer
a right to vote at such meeting and on which an aggregate sum has
been paid up equal to not less than
one-tenth
of
the total sum paid up on all the Shares conferring such right to vote at such meeting,
the
Depositary shall not demand a poll at a meeting. In order that the Depositary may demand
a
poll, the Depositary will cause the
Custodian to hold deposited Shares in no less than
5 different names in the transfer books of the Company or the Foreign Registrar.
Such
voting of Shares is subject to the provisions of Paragraph (9) of this Receipt and Section 3
.4
of the Deposit Agreement.
In
the event the Depositary holds Deposited Securities other than Shares to which voting rights attach, the Depositary shall not
exercise the right to vote such Deposited Securities and shall confer with the Company as to the appropriate course of action
with respect to such Deposited Securities.
There
can be no
assurance that Owners generally or any Owner in particular will receive
the notice described above with sufficient time to enable the Owner to return voting instructions in time to ensure that
the Depositary will vote the Shares or Deposited Securities in accordance
with the
provisions set
forth above.
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18.
|
CHANGES AFFECTING DEPOSITED SECURITIES.
|
In
circumstances
where the provisions of Section 4.3 of the Deposit Agreement do not apply,
upon any split-up, consolidation, or any other reclassification of Deposited Securities, or upon any recapitalization, reorganization,
merger or
consolidation,
or sale of assets affecting the Company or to which it is a party,
any securities
which shall be received by the Depositary
or
a
Custodian in exchange for or
in conversion of or
in respect of Deposited Securities shall be treated as new Deposited Securities
under
the Deposit Agreement, and American Depositary Shares shall thenceforth represent the new Deposited Securities so received in respect
of Deposited Securities, unless additional Receipts are delivered pursuant to the following sentence. In any such case the
Depositary
may, with the Company's approval and shall if the Company 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. Notwithstanding the foregoing, in the event that any
security so received may not be lawfully distributed to some or all Owners, the Depositary may, with the Company's approval,
and shall, if the Company requests, subject to receipt of an opinion of Company's counsel satisfactory to the Depositary that such
action is not in violation of any applicable laws or regulations, sell such securities at public or
private sale, at such place or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales
(net of
(a)
fees and
charges of,
and expenses incurred
by, the Depositary and (b) taxes) for the account of the Owners otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such
Owners and distribute
the net proceeds
so allocated to the extent practicable as in the case of a distribution
received in cash pursuant to Section 4.1 of the
Deposit Agreement. The Depositary shall
not
be responsible for (i) any failure to determine that it may be lawful or feasible
to make such securities available to Owners in general or to any Owner in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or
(iii) any liability to the purchaser of such
securities.
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19.
|
LIABILITY
OF THE COMPANY
AND DEPOSITARY.
|
Neither
the Depositary nor the Company nor any
of their respective directors, officers, employees,
agents or affiliates shall incur any liability to any Owner or Beneficial Owner of any Receipt, if by reason of any provision of
any present or future law
or regulation of the United
States or any other country, or
of any governmental or regulatory authority
or stock
exchange, or by reason of any provision, present or future, of the Constitution,
or by reason of any provision of any
securities issued or distributed by the Company,
or
any offering or distribution thereof, or by reason of any
act of
God
or war or terrorism or
other circumstances beyond its control (including, without limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil
unrest, revolutions, rebellions, explosions
and computer failure), the Depositary or the Company
or
any of
their directors, officers, employees, agents or affiliates shall
be prevented, delayed or forbidden from, or be subject
to any civil or criminal
penalty on account of, doing or
performing any act or thing which by the terms of
the Deposit Agreement or the Deposited Securities
it is provided shall be done
or performed; nor shall the Depositary or the Company or any of their respective directors, officers, employees, agents or affiliates
incur any liability to any Owner or Beneficial
Owner of any Receipt by reason of any
non-performance or delay, caused as aforesaid, in
the performance of any act or thing
which by
the terms
of the Deposit Agreement
it is
provided shall or may be done or performed, or by reason of any exercise
of, or failure to exercise, any discretion provided for in the Deposit
Agreement or
in the Constitution or provisions of or governing the Deposited Securities. Neither the Depositary
nor the Company nor any of their respective directors,
officers,
employees, agents or affiliates shall incur any
liability to any Owner or Beneficial
Owner of any Receipt
for the inability by an Owner or Beneficial
Owner 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
of American Depositary Shares.
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.
The
Company
and its directors, officers, employees, agents, or affiliates assume no obligation
nor shall
they be subject
to any
liability under the Deposit Agreement or the Receipts to Owners or Beneficial Owners of
Receipts or
to other persons, except that they agree to perform
their respective obligations specifically set forth in the Deposit Agreement without negligence or bad faith. The Depositary
and its directors, officers, employees, agents, or affiliates assume no obligation
nor
shall
they be
subject to
any
liability
under the Deposit Agreement or the Receipt to any Owner
or Beneficial Owners of any
Receipt or to other persons (including, without limitation, liability with respect to the validity or worth of the Deposited Securities),
except that they agree
to perform their respective obligations specifically set forth
in the Deposit Agreement without negligence or bad faith. Neither the Depositary nor the Company nor any of their
respective directors, officers, employees, agents or affiliates shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited Securities or in
respect
of the Receipts, which in its opinion may involve
it in expense or liability, unless
indemnity satisfactory to it against all expense and liability shall
be furnished as
often as may be required, and the Custodian shall not be under any obligation
whatsoever
with respect
to
such proceedings, the
responsibility of the Custodian being
solely to the Depositary. Neither the
Depositary
nor the Company nor any of their respective directors, officers, employees,
agents or affiliates
shall be liable for
any action or nonaction by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting
Shares
for
deposit, any Owner, any Beneficial
Owner or authorized representative thereof, or any other
person believed by it in good
faith to be competent to give such advice or information, or for any consequential or punitive damages. The Depositary, its controlling
persons, its agents, any Custodian and the Company, its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed
by it to be genuine and
to have been signed or presented by the proper party or parties. 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.
The
Company agrees to indemnify the Depositary, its
directors, officers, employees, agents
and affiliates and any Custodian against, and
hold each of them harmless
from, any liability or expense
(including, but not limited
to, the reasonable fees and expenses of counsel) which may arise
out of any
registration with the Commission of Receipts, American Depositary Shares or Deposited Securities or the offer or sale
thereof in the United States or out of acts performed
or omitted, in accordance
with the provisions of
the Deposit Agreement and
of
the Receipts, as the
same may
be amended, modified, or supplemented
from time to time, (i) by any Depositary or a
Custodian or their respective directors, employees, agents and affiliates, except for any liability or expense arising out of the
negligence or bad faith of either of
them, or (ii) by the Company or any of its directors,
employees, agents and affiliates. The Depositary agrees to indemnify the Company,
its
directors,
officers, 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 or co-Registrars or co-transfer agents or their respective directors, officers, employees, agents and affiliates
due to their negligence or bad faith.
No
disclaimer of
liability under the Securities
Act
of 1933 or the Securities Act 1978 (New Zealand),
if applicable, is intended
by any provision of the Deposit Agreement.
20.
RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR CUSTODIAN.
The
Depositary may at any time resign as Depositary under
the Deposit Agreement and this
Receipt
by written notice of its election
so
to do delivered to the Company, such resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement. The Depositary may at any time be removed by the
Company by 90 days prior written notice of such
removal,
which shall become effective upon the later to occur of (i) the 90th day after
delivery
of the
notice to the Depositary
or
(ii) effective upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided;
provided, however
that the Depositary and the Company may
agree that the removal become effective upon
an earlier
date, and neither the Depositary nor the Company shall unreasonably withhold
its respective agreement to the removal becoming
effective upon an earlier date if
this is proposed by the other. Whenever the Depositary in its discretion determines that it is in the best interest of the Owners
of Receipts to do so, it may appoint a substitute or additional custodian or custodians.
The
form of the Receipts and any provisions of the Deposit Agreement may
at any time and
from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or
desirable. Any amendment which shall impose or increase
any fees or charges (other
than taxes
and other governmental charges
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 (subject to the last sentence of this Paragraph)
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 and Beneficial 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. Notwithstanding
the foregoing, if any governmental body should adopt new laws, rules or regulations or
the Constitution is
amended which would require amendment or supplement of the
Deposit Agreement to ensure compliance therewith, the Company and the Depositary may amend or supplement the Deposit Agreement
and the Receipts at any time in accordance with
such changed laws, rules or regulations.
Such amendment or supplement to the Deposit Agreement in the circumstances may become effective before or
without any notice of such amendment or supplement is given to Owners or within any period of time as required for compliance
with such
laws, rules or regulations.
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22.
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TERMINATION OF DEPOSIT AGREEMENT.
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The
Depositary
shall at any time at the direction of the Company terminate the Deposit
Agreement by mailing notice of such termination
to
the Owners of all Receipts then outstanding
at least 30 days prior to the date
fixed in such
notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination
to the Company
and the Owners of all Receipts then outstanding if
at any time
90 days
shall have expired after the
Depositary
shall
have delivered to the Company a
written
notice of
its
election to resign and a successor
depositary shall not have been
appointed and accepted its appointment as provided in
the Deposit Agreement. On and after the date of termination, the Owner of a Receipt, upon surrender of such Receipt at the Corporate
Trust Office of the Depositary, upon payment of the fee of the Depositary for the surrender of Receipts referred to in Section
2.5 of the Deposit
Agreement, and upon payment of any applicable taxes or governmental
charges, will be entitled to delivery, to him or upon his order, of the amount of Deposited Securities represented by such Receipt.
If
any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter
shall discontinue the registration of transfers
of
Receipts, shall suspend the distribution of dividends to
the Owners thereof, and shall not
give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue
to collect
dividends and other distributions pertaining to Deposited Securities, shall sell rights as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with
any dividends or other
distributions received with respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts
surrendered to
the Depositary (after deducting, in each case, the fee of the Depositary for the surrender of a Receipt, any expenses for
the account of the Owner of such Receipt in accordance with the terms and conditions
of
the Deposit Agreement, and any applicable taxes or governmental charges). At any time after the expiration of one year from the
date of termination, the Depositary may sell the Deposited Securities then held under the Deposit Agreement and may
thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held
by it thereunder, unsegregated
and without
liability for
interest,
for the pro rata benefit
of
the Owners
of Receipts which have not theretofore been surrendered, such
Owners
thereupon becoming general creditors of
the Depositary with respect to such
net proceeds. After making such sale,
the Depositary shall be discharged from all
obligations
under the
Deposit Agreement,
except to
account for such net proceeds and other
cash (after deducting, in each case, the fee of
the Depositary for the surrender
of a Receipt, any expenses for the account of
the Owner of such
Receipt in accordance with the
terms and conditions of the Deposit Agreement,
and
any applicable taxes or governmental charges) and except for its obligations under
Section 5.8 of the Deposit
Agreement. Upon
the
termination of the
Deposit
Agreement,
the Company
shall be discharged from all
obligations
under the Deposit
Agreement
except for
its
obligations to the Depositary
with respect to
indemnification, charges,
and
expenses.
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23.
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COMPLIANCE WITH U.S. SECURITIES LAWS.
|
Notwithstanding
any terms of this Receipt or the Deposit Agreement to the contrary, the Company and the Depositary have each agreed that it will
not exercise any rights it has under
the Deposit Agreement or the Receipt to prevent
the withdrawal or delivery of Deposited Securities
in a manner which would violate
the
United States securities laws, including, but not limited to Section I A(l ) of
the General Instructions to the Form F-6 Registration Statement, as amended from time to time, under the Securities Act of 1933.
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24.
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SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE
OF
PROCESS.
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The
Company hereby (i) irrevocably designates and appoints CT Corporation, now at 111 Eighth Avenue, New
York, New York 10011, in the State of New
York, as the Company'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 Company
in any such suit or proceeding. The Company agrees
to deliver, upon the
execution and delivery
of the Deposit Agreement, a written acceptance
by such agent
of its appointment as such
agent. The Company 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 Company fails to continue such designation
and appointment in full force and effect, the Company 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 Company 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.
25.
UNCERTIFICATED AMERICAN DEPOSITARY SHARES; DTC DIRECT REGISTRATION SYSTEM.
Notwithstanding anything to the contrary in
the Deposit Agreement:
(a)
American
Depositary Shares may be certificated securities evidenced by Receipts
or
uncertificated securities. The form of Receipt annexed as
Exhibit A to the Deposit Agreement summarizes the terms and conditions of, and will be the prospectus required under the
Securities Act of
1933 for, both certificated and uncertificated American Depositary
Shares. Except for those provisions of the Deposit Agreement that by their nature do not apply to uncertificated American Depositary
Shares, all the provisions of the Deposit Agreement
shall apply,
mutatis mutandis,
to both certificated and uncertificated American Depositary Shares.
(b)
(i) The term
"deliver", or its noun form, when used with respect to
Receipts, shall mean (A) book-entry transfer of American Depositary Shares to an account at The Depository Trust Company, or its
successor ("DTC"), designated
by the person entitled to such
delivery, evidencing American Depositary Shares registered in the name requested by that
person, (B)
registration
of
American Depositary Shares not evidenced by a Receipt on the books of the Depositary in the name requested by the person
entitled to such delivery and mailing to that person of a statement confirming that registration or (C) if requested
by the person entitled to
such delivery, delivery at
the
Corporate Trust Office
of the Depositary to the person entitled to such delivery of
one or more Receipts.
(ii)
The term "surrender", when used with respect to Receipts,
shall mean (A) one or more
book-entry transfers of American Depositary Shares
to the DTC account of
the Depositary, (B) delivery to the Depositary at its Corporate
Trust Office of an instruction to surrender American Depositary Shares not evidenced by a Receipt or
(C) surrender to the Depositary
at its Corporate Trust
Office of one or more Receipts evidencing American Depositary
Shares.
(c)
American Depositary Shares not evidenced by Receipts shall be transferable as uncertificated
registered securities under the laws of New York.
(d)
The Depositary shall have
a duty to
register a transfer, in the case of uncertificated American
Depositary Shares,
upon receipt from
the Owner of a proper instruction (including, for the avoidance of
doubt, instructions through DRS and Profile as
provided in subsection (f) below). The
Depositary, upon surrender of a Receipt for the purpose of exchanging it for uncertificated American
Depositary Shares, shall cancel that Receipt and send the Owner a statement confirming that
the Owner is the owner of the same number of uncertificated American Depositary Shares
that the
surrendered
Receipt evidenced.
The Depositary, upon receipt
of a proper instruction (including, for the avoidance
of doubt, instructions through DRS and Profile as provided
in subsection (f) below)
from the Owner of uncertificated
American Depositary Shares for the purpose of exchanging
them for certificated American Depositary Shares, shall execute and deliver to the Owner a
Receipt evidencing the same
number of certificated
American Depositary Shares.
(e)
Upon
satisfaction of the conditions for replacement
of a Receipt that is mutilated, lost, destroyed or stolen, the Depositary shall deliver to the
Owner the American Depositary
Shares evidenced by that Receipt in uncertificated
form
unless otherwise requested by the Owner.
(f)
(i) The parties acknowledge that the Direct Registration System ("DRS") and Profile
Modification
System ("Profile") shall apply to
uncertificated American
Depositary
Shares upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant to which
the Depositary
may register the ownership of uncertificated American Depositary
Shares, which ownership shall be evidenced by periodic statements issued by
the
Depositary to the Owners entitled thereto. Profile is a required feature of DRS which allows a DTC participant, claiming to act
on behalf of an Owner of American
Depositary
Shares,
to direct the Depositary to register a transfer
of those American Depositary Shares
to DTC or its nominee and to deliver those American Depositary Shares to the DTC account of that DTC participant without receipt
by the Depositary of prior authorization from the Owner to register such transfer.
(ii)
In connection with and in accordance with the arrangements and procedures relating to DRS/Profile, the parties understand
that the Depositary will not verify,
determine or otherwise ascertain that the
DTC participant
which is claiming
to
be acting on behalf of an Owner in requesting a registration of transfer and delivery as described in subsection (i) above
has the actual authority to act on behalf of the Owner (notwithstanding
any requirements
under the Uniform Commercial Code). For the avoidance of
doubt, the provisions of Sections
5.3 and 5.8 of the
Deposit Agreement shall apply to
the matters arising
from the use
of
the DRS. The parties agree that the Depositary's reliance on and compliance with instructions received by the Depositary through
the
DRS/Profile System and in
accordance
with
the
Deposit
Agreement shall not constitute negligence
or bad
faith on
the part of
the
Depositary.
Spark New Zealand (PK) (USOTC:SPKKY)
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