<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 8, 1999
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------------
FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
FOR AMERICAN DEPOSITARY SHARES EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS
---------------------
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
(Exact name of issuer of deposited securities as specified in its charter)
---------------------
N.A.
(Translation of issuer's name into English)
REPUBLIC OF SINGAPORE
(Jurisdiction of incorporation or organization of issuer)
---------------------
CITIBANK, N.A.
(Exact name of depositary as specified in its charter)
111 WALL STREET
NEW YORK, NEW YORK 10043
(212) 657-5100
(Address, including zip code, and telephone number, including area code, of
depositary's principal executive offices)
---------------------
CHARTERED SEMICONDUCTOR MANUFACTURING, INC.
1450 McCANDLESS DRIVE
MILPITAS, CALIFORNIA 95035
(408) 941-1100
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------
Copies to:
JON L CHRISTIANSON,ESQ. CHRISTOPHER L. KAUFMAN, ESQ.
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP MICHAEL W. STURROCK, ESQ.
EAST WING OFFICE, LEVEL 4 LATHAM & WATKINS
CHINA WORLD TRADE CENTER 20 CECIL STREET
1 JIAN GUO MEN WAI AVENUE #25-02/03/04 THE EXCHANGE
BEIJING 100004, CHINA SINGAPORE 049705
(65) 536-1161
---------------------
It is proposed that this filing become effective under Rule 466:
[ ] immediately upon filing.
[ ] on (Date) at (Time).
If a separate registration statement has been filed to register the deposited
shares, check the following box: [X]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities to be Registered Registered Aggregate Price Per Aggregate Offering Registration Fee
Unit(1) Price(1)
<S> <C> <C> <C> <C>
American Depositary Shares, evidenced
by American Depositary Receipts, each 100,000,000 $0.05 $5,000,000.00 $1,390.00
representing 10 ordinary shares, par value
S$0.26 each, of Chartered Semiconductor
Manufacturing Ltd
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of American Depositary
<PAGE> 2
Receipts evidencing American Depositary Shares.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE
REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES
THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN
ACCORDANCE WITH SECTION 8(A) OF THE SECURITIES ACT OF 1933, OR UNTIL
THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE
COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
The Prospectus consists of the form of
American Depositary Receipt included
as Exhibit A to the Deposit Agreement
filed as Exhibit (A) to this Registration
Statement, which is incorporated herein
by reference.
<PAGE> 3
PART I
INFORMATION REQUIRED IN PROSPECTUS
CROSS REFERENCE SHEET
ITEM 1. DESCRIPTION OF SECURITIES TO BE REGISTERED
<TABLE>
<CAPTION>
LOCATION IN FORM OF AMERICAN
DEPOSITARY RECEIPT ("RECEIPT")
ITEM NUMBER AND CAPTION FILED HEREWITH AS PROSPECTUS
<S> <C>
1. Name of depositary and address of its principal Face of Receipt - Introductory paragraph. executive
office.
2. Title of Receipts and identity of deposited Face of Receipt - Top center and securities.
securities.
Terms of deposit:
(i) The amount of deposited securities Face of Receipt - Upper right corner.
represented by one American Depositary
Share
(ii) The procedure for voting, if any, the Reverse of Receipt - Paragraphs (16) and deposited
securities (17).
(iii) The collection and distribution of Face of Receipt - Paragraphs (7), (10) and
dividends (11). Reverse of Receipt - Paragraphs (14),(16),(18)
and (23).
(iv) The transmission of notices, reports and Face of Receipt - Paragraph (13).
proxy soliciting material Reverse of Receipt - Paragraphs (17),(21),(22) and (23).
(v) The sale or exercise of rights Face of Receipt - Paragraphs (3), (7),(9) and (11).
Reverse of Receipt - Paragraph (14).
(vi) The deposit or sale of securities resulting Face of Receipt - Paragraph (3).
from dividends, splits or plans of reorganization Reverse of Receipt - Paragraphs (14) and (18).
(vii) Amendment, extension or termination Reverse of Receipt - Paragraphs (21), (22) and (23).
of the deposit agreement
</TABLE>
<PAGE> 4
<TABLE>
LOCATION IN FORM OF RECEIPT
ITEM NUMBER AND CAPTION FILED HEREWITH AS PROSPECTUS
<S> <C>
(viii) Rights of holders of Receipts to inspect Face of Receipt - Paragraph (13).
the transfer books of the Depositary
and the list of holders of Receipts
(ix) Restrictions upon the right to deposit or Face of Receipt - Paragraphs (2), (3),
withdraw the underlying securities (7), (8), (9) and (11). Reverse of Receipt -
Paragraphs (24) and (25).
(x) Limitation upon the liability of the Face of Receipt - Paragraph (11).
depositary Reverse of Receipt - Paragraphs (14) and (19).
3. Fees and charges which may be imposed Face of Receipt - Paragraphs (7) and
directly or indirectly on holders of Receipts (10).
</TABLE>
ITEM 2. AVAILABLE INFORMATION
Upon declaration of the effectiveness of this Registration Statement,
Chartered Semiconductor Manufacturing Ltd will be subject to the periodic
reporting requirements of the Securities Exchange Act of 1934, and, accordingly,
will file certain reports with the United States Securities and Exchange
Commission (the "Commission"). These reports and documents can be inspected by
holders of Receipts and copied at public reference facilities maintained by the
Commission located at Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C.
20549 and at the Commission's New York City office located at Seven World Trade
Center, 13th Floor, New York, New York 10048.
<PAGE> 5
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 3. EXHIBITS
(a) Form of Deposit Agreement (including the Form of American
Depositary Receipt) by and among Chartered Semiconductor Manufacturing Ltd,
Citibank, N.A., as Depositary, and all holders and beneficial owners of
American Depositary Shares evidenced by the American Depositary Receipts
issued thereunder (the "Deposit Agreement"). ___ Filed herewith as
Exhibit 4.
(b) Any other agreement to which the depositary is a party relating to
the issuance of the American Depositary Shares registered hereunder or the
custody of the deposited securities represented thereby. ___ None.
(c) Every material contract relating to the deposited securities
between the depositary and the issuer of the deposited securities in effect
at any time within the last three years. ___ None.
(d) Opinion of Skadden, Arps, Slate, Meagher & Flom LLP, counsel for
the depositary, as to the legality of the securities to be registered. ___
Filed herewith as Exhibit 5.
(e) Certificate under Rule 466. ___ None.
(f) Powers of attorney for certain officers and directors and the
authorized representative of the issuer in the United States. ___ Set forth
on the signature pages hereto.
ITEM 4. UNDERTAKINGS
(a) The depositary hereby undertakes to make available at the
principal office of the depositary in the United States, for inspection by
holders of the Receipts, any reports and communications received from the
issuer of the deposited securities which are both (1) received by the
depositary as the holder of the deposited securities, and (2) made
generally available to the holders of the underlying securities by the
issuer.
(b) If the amount of fees charged is not disclosed in the prospectus,
the depositary undertakes to prepare a separate document stating the amount
of any fee charged and describing the service for which it is charged and
to deliver promptly a copy of such fee schedule without charge to anyone
upon request. The depositary undertakes to notify each registered holder of
a Receipt thirty days before any change in the fee schedule.
II-1
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Citibank, N.A., acting solely on behalf of the legal entity created by the
Deposit Agreement, certifies that it has reasonable grounds to believe that all
the requirements for filing on Form F-6 are met and has duly caused this
Registration Statement on Form F-6 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on the 8th day of October, 1999.
Legal entity created by the Deposit Agreement for
the issuance of American Depositary Receipts
evidencing American Depositary Shares, each
representing 10 ordinary shares, par value S$0.26
each, of Chartered Semiconductor Manufacturing Ltd
CITIBANK, N.A., solely in its capacity as depositary
By: /s/ Nancy Lissemore
-------------------------
Name: Nancy Lissemore
Title: Vice President
II-2
<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form F-6 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the Republic of Singapore, on this 8th day of October, 1999.
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By: /s/ CHIA SONG HWEE
------------------------------------
Name: Chia Song Hwee
Title: Chief Financial Officer
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Barry
Waite, Chia Song Hwee, Sum Soon Lim and Lim Ming Seong as attorneys-in-fact with
the power of substitution, for him or her in any and all capacities, to sign any
amendment to this Registration Statement (including post-effective amendments
and registration statements filed pursuant to Rule 462 and otherwise), and to
file the same, with exhibits thereto and other documents in connection
therewith, with the SEC, granting to said attorneys-in-fact, and each of them
individually, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in connection therewith, as fully to
all intents and purposes as he or she might or could do in person, hereby
ratifying and confirming all that said attorneys-in-facts or each of them
individually, or their substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ HO CHING Chairman of the Board October 8, 1999
- -----------------------------------------------------
Ho Ching
/s/ LIM MING SEONG Deputy Chairman of the Board October 8, 1999
- -----------------------------------------------------
Lim Ming Seong
/s/ BARRY WAITE President and Chief October 8, 1999
- ----------------------------------------------------- Executive Officer (principal
Barry Waite executive officer)
/s/ CHIA SONG HWEE Chief Financial Officer October 8, 1999
- ----------------------------------------------------- (principal financial and
Chia Song Hwee accounting officer)
/s/ SUM SOON LIM Director October 8, 1999
- -----------------------------------------------------
Sum Soon Lim
/s/ JAMES H. VAN TASSEL Director October 8, 1999
- -----------------------------------------------------
James H. Van Tassel
/s/ AUBREY C. TOBEY Director October 8, 1999
- -----------------------------------------------------
Aubrey C. Tobey
</TABLE>
II-3
<PAGE> 8
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ ROBERT EDMUND LA BLANC Director October 8, 1999
- -----------------------------------------------------
Robert Edmund La Blanc
/s/ ANDRE BORREL Director October 8, 1999
- -----------------------------------------------------
Andre Borrel
/s/ CHARLES E. THOMPSON Director October 8, 1999
- -----------------------------------------------------
Charles E. Thompson
/s/ KOH BENG SENG Director October 8, 1999
- -----------------------------------------------------
Koh Beng Seng
/s/ TSUGIO MAKIMOTO Director October 8, 1999
- -----------------------------------------------------
Tsugio Makimoto
/s/ THOMAS H.R. GURNEE Authorized Representative in October 8, 1999
- ----------------------------------------------------- the United States
Thomas H.R. Gurnee
</TABLE>
II-4
<PAGE> 9
INDEX TO EXHIBITS
EXHIBIT DOCUMENT
4 Form of Deposit Agreement
5 Opinion of Skadden, Arps, Slate, Meagher & Flom LLP,
counsel for the depositary, as to the legality of the
securities to be registered
<PAGE> 1
Exhibit 4
[FORM OF]
DEPOSIT AGREEMENT
by and among
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as of _______, 1999
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
ARTICLE 1. DEFINITIONS
Section 1.1 "Affiliate"...................................................................2
Section 1.2 "American Depositary Share(s)" and "ADS(s)"...................................2
Section 1.3 "ADS Record Date".............................................................2
Section 1.4 "Applicant"...................................................................2
Section 1.5 "Beneficial Owner.............................................................2
Section 1.6 "Business Day"................................................................3
Section 1.7 "CDP".........................................................................3
Section 1.8 "Commission"..................................................................3
Section 1.9 "Company".....................................................................3
Section 1.10 "Custodian"...................................................................3
Section 1.11 "Deliver" and "Delivery"......................................................3
Section 1.12 "Deposit Agreement"...........................................................3
Section 1.13 "Depositary"..................................................................4
Section 1.14 "Deposited Securities"........................................................4
Section 1.15 "Dollars" and "$".............................................................4
Section 1.16 "DTC".........................................................................4
Section 1.17 "DTC Participant".............................................................4
Section 1.18 "Exchange Act"................................................................4
Section 1.19 "Foreign Currency"............................................................4
Section 1.20 "Holder"......................................................................4
Section 1.21 "Pre-Release Transaction".....................................................5
Section 1.22 "Principal Office"............................................................5
Section 1.23 "Receipt(s)"; "American Depositary Receipt(s)" and "ADR(s)"...................5
Section 1.24 "Registrar"...................................................................5
Section 1.25 "Restricted Securities".......................................................6
Section 1.26 "Securities Act"..............................................................6
Section 1.27 "Share Registrar".............................................................6
Section 1.28 "Shares"......................................................................6
Section 1.29 "Singapore"...................................................................7
Section 1.30 "Singapore Dollars" and "S$"..................................................7
Section 1.31 "United States"...............................................................7
ARTICLE 2. APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF
SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS
Section 2.1 Appointment of Depositary.....................................................7
Section 2.2 Form and Transferability of Receipts..........................................7
Section 2.3 Deposit with Custodian.......................................................10
</TABLE>
i
<PAGE> 3
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
Section 2.4 Registration of Shares.......................................................12
Section 2.5 Execution and Delivery of Receipts...........................................13
Section 2.6 Transfer, Combination and Split-up of Receipts...............................14
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.....................15
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc..............................17
Section 2.9 Lost Receipts, etc...........................................................19
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records.......................................................19
Section 2.11 Partial Entitlement ADSs.....................................................20
Section 2.12 Restricted ADSs..............................................................21
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF
RECEIPTS
Section 3.1 Proofs, Certificates and Other Information...................................22
Section 3.2 Liability for Taxes and Other Charges........................................23
Section 3.3 Representations and Warranties on Deposit of Shares..........................24
Section 3.4 Compliance with Information Requests.........................................25
Section 3.5 Ownership Restrictions.......................................................25
ARTICLE 4. THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions...........................................................26
Section 4.2 Distribution in Shares.......................................................27
Section 4.3 Elective Distributions in Cash or Shares.....................................28
Section 4.4 Distribution of Rights to Purchase Shares....................................29
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.......................................................................31
Section 4.6 Distributions with Respect to Deposited Securities in Bearer
Form.........................................................................33
Section 4.7 Redemption...................................................................33
Section 4.8 Conversion of Foreign Currency...............................................34
Section 4.9 Fixing of ADS Record Date....................................................35
Section 4.10 Voting of Deposited Securities...............................................36
Section 4.11 Changes Affecting Deposited Securities.......................................37
Section 4.12 Available Information........................................................39
Section 4.13 Reports......................................................................39
Section 4.14 List of Holders..............................................................39
Section 4.15 Taxation.....................................................................39
ARTICLE 5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar....................41
</TABLE>
ii
<PAGE> 4
<TABLE>
<CAPTION>
Page
----
<S> <C> <C> <C>
Section 5.2 Exoneration..................................................................42
Section 5.3 Standard of Care.............................................................43
Section 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary......................................................44
Section 5.5 The Custodian................................................................45
Section 5.6 Notices and Reports..........................................................46
Section 5.7 Issuance of Additional Shares, ADSs etc......................................47
Section 5.8 Indemnification..............................................................49
Section 5.9 Fees and Charges of Depositary...............................................50
Section 5.10 Pre-Release..................................................................51
Section 5.11 Restricted Securities Owners.................................................53
ARTICLE 6. AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement.........................................................53
Section 6.2 Termination..................................................................54
ARTICLE 7. MISCELLANEOUS
Section 7.1 Counterparts.................................................................56
Section 7.2 No Third-Party Beneficiaries.................................................56
Section 7.3 Severability.................................................................57
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.....................57
Section 7.5 Notices......................................................................57
Section 7.6 Governing Law and Jurisdiction...............................................58
Section 7.7 Assignment...................................................................60
Section 7.8 Compliance with U.S. Securities Laws.........................................60
Section 7.9 Titles.......................................................................61
EXHIBIT A [FORM OF RECEIPT]
EXHIBIT B FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
</TABLE>
iii
<PAGE> 5
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of __________________, 1999, by and among
(i) CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated under the
laws of the Republic of Singapore, and its successors (the "Company"), (ii)
CITIBANK, N.A., a national banking association organized under the laws of the
United States of America acting in its capacity as depositary, and any successor
depositary hereunder (the "Depositary"), and (iii) all Holders and Beneficial
Owners of American Depositary Shares evidenced by American Depositary Receipts
issued hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding ordinary
shares, par value S$0.26 per share (the "Shares"), which are listed for trading
on the Stock Exchange of Singapore Limited; and
WHEREAS, the Company desires to establish with the Depositary an ADR
facility to provide for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited and for the execution and
delivery of American Depositary Receipts evidencing such American Depositary
Shares; and
WHEREAS, the Depositary is willing to act as the Depositary for such
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, certain American Depositary Shares to be issued pursuant to
the terms of this Deposit Agreement are to be quoted on the Nasdaq National
Market; and
WHEREAS, the Board of Directors of the Company (or an authorized
committee
<PAGE> 6
thereof) has duly approved (i) the execution and delivery of this Deposit
Agreement on behalf of the Company and (ii) the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows: ARTICLE 1.
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall
have the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined).
Section 1.2 "American Depositary Share(s)" and "ADS(s)" shall mean the
rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and the American Depositary Receipts issued hereunder. Each American Depositary
Share shall represent ten (10) Shares, until (i) there shall occur either a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.11 and (ii) with respect to such
occurrence additional American Depositary Shares are not issued. Thereafter each
American Depositary Share shall represent the number of Shares and/or Deposited
Securities as specified in such Sections.
Section 1.3 "ADS Record Date" shall have the meaning given to such term
in Section 4.9.
Section 1.4 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.5 "Beneficial Owner" shall mean, as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial
2
<PAGE> 7
Owner may or may not be the Holder of the ADR(s) evidencing such ADSs. A
Beneficial Owner who is not a Holder shall be able to exercise any right or
receive any benefit hereunder solely through the person or entity who is the
Holder of the ADR(s) evidencing the ADSs owned by such Beneficial Owner.
Section 1.6 "Business Day" shall mean any day on which both the banks
in Singapore and the banks in New York are open for business.
Section 1.7 "CDP" shall mean The Central Depositary (Pte) Limited,
which provides the book-entry settlement system for equity securities traded in
Singapore, or any successor entity thereto.
Section 1.8 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
Section 1.9 "Company" shall mean Chartered Semiconductor Manufacturing
Ltd, a company incorporated and existing under the laws of Singapore, having its
principal office at 60 Woodlands Industrial Park D, Street 2, Singapore 738406,
and its successors.
Section 1.10 "Custodian" shall mean, as of the date hereof, Citibank
Nominees Singapore Pte Ltd, a subsidiary of the Depositary, having its principal
office at 300 Tampines Avenue #07-00, Tampines Junction, Singapore 529653, as
the custodian for the purposes of this Deposit Agreement, and any other entity
that may be appointed by the Depositary pursuant to the terms of Section 5.5 as
successor, substitute or additional custodian hereunder, as the context shall
require. The term "Custodian" shall mean any Custodian individually or all
custodians collectively, as the context requires.
Section 1.11 "Deliver" and "Delivery" shall mean, when used in respect
of American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, if
available.
Section 1.12 "Deposit Agreement" shall mean this Deposit Agreement and
all
3
<PAGE> 8
exhibits hereto, as the same may from time to time be amended and supplemented
in accordance with the terms hereof.
Section 1.13 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
Section 1.14 "Deposited Securities" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. The collateral
delivered in connection with Pre-Release Transactions described in Section 5.10
hereof shall not constitute Deposited Securities.
Section 1.15 "Dollars" and "$" shall refer to the lawful currency of
the United States.
Section 1.16 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in the Depository Trust
Company, and any successor thereto.
Section 1.17 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
Section 1.18 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
Section 1.19 "Foreign Currency" shall mean currency other than Dollars.
Section 1.20 "Holder" shall mean the person or entity in whose name a
Receipt is registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADSs evidenced by the Receipt
registered in its name, such Holder nonetheless
4
<PAGE> 9
shall be deemed to have all requisite authority to act on behalf of the
Beneficial Owners of the ADSs evidenced by such Receipt.
Section 1.21 "Pre-Release Transaction" shall have the meaning set forth
in Section 5.10.
Section 1.22 "Principal Office" when used with respect to the
Depositary, shall mean the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of this Deposit Agreement, is located at 111 Wall Street, New York,
New York 10043, U.S.A. If the address of the principal office of the Depositary
changes after the date of this Deposit Agreement, the Depositary shall, without
unreasonable delay and at its own expense, give written notice thereof to the
Company and the Holders.
Section 1.23 "Receipt(s)"; "American Depositary Receipt(s)" and
"ADR(s)" shall mean the certificate(s) issued by the Depositary to evidence the
American Depositary Shares issued under the terms of this Deposit Agreement, as
such Receipts may be amended from time to time in accordance with the provisions
of this Deposit Agreement. A Receipt may evidence any number of American
Depositary Shares and may, in the case of American Depositary Shares held
through a central depository such as DTC, be in the form of a "Balance
Certificate."
Section 1.24 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register issuances and transfers
of Receipts as herein provided, and shall include any co-registrar appointed by
the Depositary for such purposes. Registrars (other than the Depositary) may be
removed and substitutes appointed by the Depositary, with the prior consent of
the Company. Each Registrar (other than the Depositary) appointed pursuant to
this Deposit Agreement shall be required to give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
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Section 1.25 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act or the rules issued thereunder, or (ii) are held by an officer or
director (as such terms are defined under Regulation C of the Securities Act) or
other Affiliate of the Company and are subject to selling or resale limitations,
as the case may be, under the Securities Act or the rules and regulations
promulgated thereunder, or (iii) are subject to other restrictions on sale or
deposit under the laws of the United States, Singapore, or under a shareholder
agreement or the Memorandum and Articles of Association of the Company or under
the regulations of an applicable securities exchange unless, in each case, such
Shares, Deposited Securities or ADSs are being sold to persons other than an
Affiliate of the Company in a transaction (i) covered by an effective resale
registration statement, or (ii) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares, Deposited Securities or
ADSs will not be, when acquired by such person(s) or entity(ies), Restricted
Securities.
Section 1.26 "Securities Act" shall mean the United States Securities
Act of 1933, as from time to time amended.
Section 1.27 "Share Registrar" shall mean M&C Services Private Limited
or a depository institution organized under the laws of Singapore, which carries
out the duties of registrar for the Shares or any successor as Share Registrar
for such Shares appointed by the Company.
Section 1.28 "Shares" shall mean the Company's ordinary shares, par
value S$0.26 per share, validly issued and outstanding and fully paid and may,
if the Depositary so agrees after consultation with the Company, include
evidence of the right to receive Shares; provided that in no event shall Shares
include evidence of the right to receive Shares with respect to which the full
purchase price has not been paid or Shares as to which preemptive rights have
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theretofore not been validly waived or exercised; provided further, however,
that, if there shall occur any change in par value, split-up, consolidation,
reclassification, conversion or any other event described in Section 4.11 in
respect of the Shares, the term "Shares" shall thereafter, to the maximum extent
permitted by law, represent the successor securities resulting from such change
in par value, split-up, consolidation, exchange, conversion, reclassification or
event.
Section 1.29 "Singapore" shall mean the Republic of Singapore.
Section 1.30 "Singapore Dollars" and "S$" shall refer to the lawful
currency of Singapore.
Section 1.31 "United States" shall have the meaning assigned to it in
Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE 2.
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement, shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement with respect to the
ADSs, to adopt any and all procedures necessary to comply with applicable law
and to take such action as the Depositary in its sole discretion may deem
necessary or appropriate to carry out the purposes of this Deposit Agreement.
Section 2.2 Form and Transferability of Receipts.
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2.2.1. Form. ADSs shall be evidenced by definitive Receipts
which shall be engraved, printed, lithographed or produced in such other manner
as may be agreed upon by the Company and the Depositary. Receipts may be issued
under this Deposit Agreement in denominations of any whole number of ADSs. The
Receipts shall be substantially in the form set forth in Exhibit A to this
Deposit Agreement, with any appropriate insertions, modifications and omissions,
in each case as otherwise contemplated in this Deposit Agreement or required by
law. Receipts shall be (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of Receipts. No Receipt and no ADS
evidenced thereby shall be entitled to any benefits under this Deposit Agreement
or be valid or enforceable for any purpose against the Depositary or the
Company, unless such Receipt shall have been so dated, signed, countersigned and
registered. Receipts bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such Receipt by the
Depositary.
The Receipts shall bear a CUSIP number that is different from
any CUSIP number that may be assigned to any depositary receipts subsequently
issued pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not Receipts issued hereunder.
2.2.2. Legends. The Receipts may, with the prior written
consent of the Company (which consent shall not be unreasonably withheld), and
upon the written request of the Company, shall be, endorsed with or have
incorporated in the text thereof, such legends or recitals not inconsistent with
the provisions of this Deposit Agreement (i) as may be necessary to enable the
Depositary or the Company to perform its obligations hereunder, (ii) as may be
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required to comply with any applicable laws or regulations, or with the rules
and regulations of any securities exchange or market upon which ADSs may be
traded, listed or quoted, or to conform with any usage with respect thereto,
(iii) as may be necessary to indicate any special limitations or restrictions to
which any particular Receipts or ADSs are subject by reason of the date of
issuance of the Deposited Securities or otherwise, or (iv) as may be required by
any book-entry system in which the ADSs are held.
2.2.3. Title. Subject to the limitations contained herein and
in the Receipt, title to a Receipt (and to each ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such Receipt has been properly endorsed or
is accompanied by proper instruments of transfer. Notwithstanding any notice to
the contrary, the Depositary may deem and treat the Holder of a Receipt as the
absolute owner thereof for all purposes. Neither the Depositary nor the Company
shall have any obligation or be subject to any liability under this Deposit
Agreement or any Receipt to any holder of a Receipt or any Beneficial Owner
unless such holder is the Holder of such Receipt registered on the books of the
Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or the
Beneficial Owner's representative is the Holder registered on the books of the
Depositary.
2.2.4. Book-Entry Systems. The Depositary has made
arrangements for, and DTC has agreed to, the acceptance of the American
Depositary Shares into DTC's book-entry settlement system. A single ADR in the
form of a "Balance Certificate" will evidence all ADSs held through DTC and will
be registered in the name of the nominee for DTC (currently "Cede & Co.") and
will provide that it represents the aggregate amount of ADSs from time to time
indicated in the records of the Depositary as being issued hereunder and that
the aggregate amount of ADSs represented thereby may from time to time be
increased or decreased by making adjustments on such records of the Depositary
and of DTC or its nominee as hereinafter provided. As such, the nominee for DTC
will be the only "Holder" of the ADR
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evidencing all ADSs held through DTC. Citibank, N.A. (or such other entity as is
appointed by DTC) may hold the "Balance Certificate" as custodian for DTC. Each
Beneficial Owner of ADSs held through DTC must rely upon the procedures of DTC
and the DTC Participants to exercise or be entitled to any rights attributable
to such ADSs. The DTC Participants shall for all purposes be deemed to have all
requisite power and authority to act on behalf of the Beneficial Owners of the
ADSs held in the DTC Participants' respective accounts in DTC and the Depositary
shall for all purposes be authorized to rely upon any instructions and
information given to it by DTC Participants on behalf of Beneficial Owners of
ADSs. So long as ADSs are held through DTC or unless otherwise required by law,
ownership of beneficial interests in the ADR registered in the name of the
nominee for DTC will be shown on, and transfers of such ownership will be
effected only through, records maintained by (i) DTC (or its nominee), or (ii)
DTC Participants (or their nominees).
The Depositary acknowledges that if at any time DTC
notifies the Company and the Depositary that it (or its nominee) is unwilling or
unable to continue as the Holder of the "Balance Certificate" evidencing all
ADSs held through DTC or if at any time it ceases to be a clearing agency
registered under the Exchange Act, and in either case a successor Holder is not
appointed by the Company within 90 days, then (i) beneficial interests in the
"Balance Certificate" shall be exchanged for Receipts in certificated form, (ii)
the Depositary shall obtain a supply of definitive certificated Receipts
substantially in the form of Exhibit A hereto, and (iii) the Depositary shall,
upon the order of the Company, execute and deliver such definitive certificated
Receipts registered in such names and in such amounts as directed by the Holder
in exchange for the "Balance Certificate".
Section 2.3 Deposit with Custodian. Subject to the terms and conditions
of this Deposit Agreement and applicable law, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
or entity (including the Depositary in its individual capacity but subject,
however, in the case of the Company or any Affiliate of the
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<PAGE> 15
Company, to Section 5.7 hereof) at any time, whether or not the transfer books
of the Company or the Share Registrar, if any, are closed, by Delivery of the
Shares to the Custodian, and (A) (in the case of Shares represented by
certificates issued in registered form) appropriate instruments of transfer or
endorsement, in a form satisfactory to the Custodian or, (in the case of Shares
represented by certificates in bearer form) of the requisite coupons and talons
pertaining thereto, (B) such certifications and payments (including, without
limitation, the Depositary's fees and related charges) and evidence of such
payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement and applicable law,
(C) if the Depositary so requires, a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person(s) or
entity(ies) stated in such order a Receipt or Receipts for the number of
American Depositary Shares representing the Shares so deposited, (D) evidence
satisfactory to the Depositary (which may be an opinion of counsel) that all
necessary approvals have been granted by, or there has been compliance with the
rules and regulations of, any applicable governmental agency in Singapore,
including those which are then performing the function of the regulation of
currency exchange, and (E) if the Depositary so requires, (i) an agreement,
assignment or other instrument satisfactory to the Depositary or the Custodian
which provides for the prompt transfer by any person or entity in whose name the
Shares are or have been recorded to the Custodian of any distribution, or right
to subscribe for additional Shares or to receive other property in respect of
any such deposited Shares or, in lieu thereof, such indemnity or other agreement
as shall be satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person or entity on whose behalf they
are presented for deposit, a proxy or proxies entitling the Custodian to
exercise voting rights in respect of the Shares for any and all purposes until
the Shares so deposited are registered in the name of the Depositary, the
Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary
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shall instruct the Custodian not to, and the Depositary shall not knowingly,
accept for deposit (a) any Restricted Securities, except as expressly permitted
by Section 2.12 herein, nor (b) any fractional Shares or fractional Deposited
Securities nor (c) a number of Shares or Deposited Securities which, upon
application of the ADS to Shares ratio, would give rise to fractional ADSs. No
Share shall be accepted for deposit unless accompanied by evidence, if required
by the Depositary, that is reasonably satisfactory to the Depositary or the
Custodian that all conditions to such deposit have been satisfied by the person
or entity depositing such Shares under the laws and regulations of Singapore and
any necessary approval has been granted by any governmental body in Singapore,
if any, which is then performing the function of the regulation of currency
exchange. The Depositary may issue Receipts against evidence of rights to
receive Shares from the Company, any agent of the Company or any custodian,
registrar, transfer agent, clearing agency or other entity involved in ownership
or transaction records in respect of the Shares. Such evidence of rights shall
consist of written blanket or specific guarantees of ownership of Shares
furnished by the Company or any such custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of such Shares.
Section 2.4 Registration of Shares. The Depositary shall instruct the
Custodian upon each delivery of certificates representing registered Shares
being deposited hereunder with the Custodian (or other Deposited Securities
pursuant to Article IV hereof), together with the other documents above
specified, to present such certificate or certificates, together with the
appropriate instrument or instruments of transfer or endorsement, duly stamped,
to the Share Registrar for transfer and registration of the Shares (as soon as
transfer and registration can be accomplished and at the expense of the person
or entity for whom the deposit is made) in the name of the Depositary, the
Custodian or a nominee of either. Deposited Securities shall be held by the
Depositary or by a Custodian for the account and to the order of the Depositary
or a nominee in each case on behalf of the Holders and Beneficial Owners, at
such place or places as
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the Depositary or the Custodian shall determine.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or Deposited Securities the deposit of which
would violate any provisions of the Memorandum and Articles of Association of
the Company.
Section 2.5 Execution and Delivery of Receipts. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Shares has been made pursuant to Section 2.3 hereof, (ii) that any such
Deposited Securities have been recorded in the name of the Depositary, Custodian
or a nominee of either on the shareholders' register maintained by or on behalf
of the Company, if registered Shares have been deposited or, if deposit is made
by book-entry transfer, confirmation of such transfer in the books of the CDP,
(iii) that all required documents, if any, have been received, and (iv) the
person(s) or entity(ies) to whom or upon whose order American Depositary Shares
are deliverable in respect thereof and the number of American Depositary Shares
to be so delivered thereby. Such notification may be made by letter, cable,
telex, swift message or, at the risk and expense of the person making the
deposit, by facsimile or other means of electronic transmission. Upon receiving
such notice from the Custodian, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall issue the American Depositary Shares
representing the Shares so deposited and shall execute and Deliver at its
Principal Office to or upon the order of the person(s) or entity(ies) named in
the notice delivered to the Depositary Receipt(s) registered in the name or
names requested by such person(s) or entity(ies) and evidencing the aggregate
number of American Depositary Shares to which such person(s) or entity(ies) are
entitled, but only upon payment to the Depositary of the charges of the
Depositary for accepting a deposit, issuing American Depositary Shares and
executing and delivering such Receipt(s) (as set forth in Section 5.9 and
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Exhibit B hereto) and all taxes and governmental charges and fees payable in
connection with such deposit and the transfer of the Shares and the issuance of
the Receipt(s). The Depositary shall only issue American Depositary Shares in
whole numbers and deliver American Depositary Receipts evidencing whole numbers
of American Depositary Shares. Nothing herein shall prohibit any Pre-Release
Transaction upon the terms set forth in this Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of Receipts.
2.6.1. Transfer. The Depositary or the Registrar, if any,
shall, without unreasonable delay, register the transfer of Receipts (and of the
ADSs represented thereby) on the books maintained for such purpose and the
Depositary shall cancel such Receipts and execute new Receipts evidencing the
same aggregate number of ADSs as those evidenced by the Receipts cancelled by
the Depositary, shall cause the Registrar to countersign such new Receipts and
shall Deliver such new Receipts to or upon the order of the person or entity
entitled thereto, if each of the following conditions has been satisfied: (i)
the Receipts have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a transfer thereof, (ii) the surrendered Receipts have been
properly endorsed or are accompanied by proper instruments of transfer
(including signature guarantees in accordance with standard securities industry
practice), (iii) the surrendered Receipts have been duly stamped (if required by
the laws of the State of New York or of the United States or any other
applicable law), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid, subject,
however, in each case, to the terms and conditions of the applicable Receipts,
of this Deposit Agreement and of applicable law, in each case as in effect at
the time thereof.
2.6.2. Combination & Split Up. The Depositary or the
Registrar, if any, shall, without unreasonable delay, register the split-up or
combination of Receipts (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall
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cancel such Receipts and execute new Receipts for the number of ADSs requested,
but in the aggregate not exceeding the number of ADSs evidenced by the Receipts
cancelled by the Depositary, shall cause the Registrar to countersign such new
Receipts and shall Deliver such new Receipts to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) the
Receipts have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a split-up or combination thereof, and (ii) all applicable
fees and charges of, and expenses incurred by, the Depositary and all applicable
taxes and governmental charges (as are set forth in Section 5.9 and Exhibit B
hereto) have been paid, subject, however, in each case, to the terms and
conditions of the applicable Receipts, of this Deposit Agreement and of
applicable law, in each case, as in effect at the time thereof.
2.6.3. Co-Transfer Agents. The Depositary may, with the prior
written consent of the Company (which consent shall not be unreasonably
withheld), and upon the written request of the Company, shall promptly, appoint
one or more co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Holders, Beneficial Owners, or persons entitled to such Receipts
and will be entitled to protection and indemnity to the same extent as the
Depositary or the Company. Such co-transfer agents may be removed and
substitutes appointed by the Depositary. Each co-transfer agent appointed under
this Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities.
The Holder of ADSs shall be entitled to Delivery by book-entry transfer (or in
the case of certificates, Delivery at the Custodian's principal office) of the
Deposited Securities at the time represented
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by the ADS(s) upon satisfaction of each of the following conditions: (i) the
Holder (or a duly authorized attorney of the Holder) has duly Delivered ADSs to
the Depositary at its Principal Office (and if applicable, the Receipts
evidencing such ADSs) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if so required by the Depositary, the Receipts
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) or entity(ies) designated in such order, and (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B hereof) have been paid, subject, however, in each case, to the terms
and conditions of the Receipts evidencing the surrendered ADSs, of this Deposit
Agreement, of the Company's Memorandum and Articles of Association and of any
applicable laws and the rules of the CDP, and to any provisions of or governing
the Deposited Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above,
the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable,
the Receipts evidencing the ADSs so Delivered), (ii) shall direct the Registrar
to record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's principal office the Deposited Securities
represented by the ADSs so cancelled together with any certificate or other
document of or relating to title for the Deposited Securities, or evidence of
the electronic transfer thereof (if available), and any other securities,
property and cash to which such Holder is then entitled in respect of such
Receipts, as the case may be, to or upon the written order of the person(s) or
entity(ies) designated in the order delivered to the Depositary for such
purpose, subject however, in each
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case, to the terms and conditions of this Deposit Agreement, of the Receipts
evidencing the ADSs so cancelled, of the Memorandum and Articles of Association
of the Company, of applicable laws and of the rules of the CDP, and to the terms
and conditions of or governing the Deposited Securities, in each case as in
effect at the time thereof.
The Depositary shall not accept for surrender ADSs
representing less than one Share. In the case of the Delivery of ADSs
representing a number other than a whole number of Shares, the Depositary shall
cause ownership of the appropriate whole number of Shares to be Delivered in
accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) return to the person or entity surrendering such ADSs the
number of ADSs representing any remaining fractional Share, or (ii) sell or
cause to be sold the fractional Shares represented by the ADSs so surrendered
and remit the proceeds of such sale (net of (a) applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes withheld) to the
person(s) or entity(ies) designated in the order delivered to the Depositary for
such purpose.
Notwithstanding anything else contained in any Receipt or this
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of shares or rights, which are at
the time held by the Depositary in respect of the Deposited Securities
represented by the ADSs surrendered for cancellation and withdrawal. At the
request, risk and expense of any Holder so surrendering ADSs, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of the Deposited Securities represented by such
ADSs to the Depositary for delivery at the Principal Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Holder, by cable, telex or facsimile transmission.
Section 2.8 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
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2.8.1. Additional Requirements. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon or withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of a 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 and charges of the
Depositary as provided in Section 5.9 and Exhibit B hereof, (ii) the production
of proof satisfactory to it as to the identity and genuineness of any signature
or any other matter contemplated by Section 3.1 hereof and (iii) compliance with
(A) any laws or governmental regulations relating to the execution and delivery
of Receipts or American Depositary Shares or to the withdrawal of Deposited
Securities and (B) such reasonable regulations, if any, as the Depositary and
the Company may establish consistent with the provisions of this Deposit
Agreement and applicable law.
2.8.2. Additional Limitations. The issuance of ADSs against
deposits of Shares generally or against deposits of particular Shares may be
suspended, or the issuance of ADSs against the deposit of particular Shares may
be withheld, or the registration of transfer of Receipts in particular instances
may be refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Share Registrar are closed or if any such action
is deemed necessary or advisable by the Depositary or the Company, in good
faith, at any time or from time to time because of any requirement of law, any
government or governmental body or commission or any securities exchange on
which the ADSs or Shares are listed, or under any provision of this Deposit
Agreement or provisions of, or governing, the Deposited Securities, or any
meeting of shareholders of the Company or for any other reason, subject, in all
cases, to Section 7.8 hereof.
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2.8.3. Regulatory Restrictions. Notwithstanding any provision of
this Deposit Agreement or any Receipt to the contrary, Holders are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities at any time
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 non-U.S. laws or
governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
Section 2.9 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in lieu of and in substitution for such
destroyed, lost, or stolen Receipt, after the Holder thereof (i) has submitted
to the Depositary a written request for such exchange and substitution before
the Depositary has notice that the Receipt has been acquired by a bona fide
purchaser, (ii) has provided such security or indemnity (including an indemnity
bond) as may be required by the Depositary to save it and any of its agents
harmless, and (iii) has satisfied any other reasonable requirements imposed by
the Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such Receipt, the authenticity
thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is
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authorized to destroy Receipts so canceled, provided the Depositary maintains a
record of all destroyed Receipts. Any ADSs held in book-entry form (i.e.,
through accounts at DTC) shall be deemed canceled when the Depositary causes the
number of ADSs evidenced by the Balance Certificate to be reduced by the number
of ADSs surrendered to it (without the need to physically destroy the Balance
Certificate).
Section 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Agreement,
issue ADSs and deliver ADRs representing Partial Entitlement Shares which are
separate and distinct from the ADSs and ADRs representing Full Entitlement
Shares, by means of separate CUSIP numbering and legending (if necessary)
("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is
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authorized to take any and all other actions as may be necessary (including,
without limitation, making the necessary notations on Receipts) to give effect
to the terms of this Section 2.11. The Company agrees to give timely written
notice to the Depositary if any Shares issued or to be issued are Partial
Entitlement Shares and shall assist the Depositary with the establishment of
procedures enabling the identification of Partial Entitlement Shares upon
Delivery to the Custodian.
Section 2.12 Restricted ADSs. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Securities in the form
of ADSs issued under the terms hereof (such Shares, "Restricted Shares"). Upon
receipt of a written request from the Company to accept Restricted Shares for
deposit hereunder, the Depositary agrees to establish procedures permitting the
deposit of such Restricted Shares and the issuance of ADSs representing such
deposited Restricted Shares (such ADSs, the "Restricted ADSs," and the ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all steps necessary and satisfactory to the Depositary to ensure that
the establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws or regulations. The depositors of
such Restricted Shares and the holders of the Restricted ADSs may be required
prior to the deposit of such Restricted Shares, the transfer of the Restricted
ADRs and the Restricted ADSs evidenced thereby or the withdrawal of the
Restricted Shares represented by Restricted ADSs to provide such written
certifications or agreements as the Depositary or the Company may require. The
Company shall provide to the Depositary in writing the legend(s) to be affixed
to the Restricted ADRs, which legends shall (i) be in a form satisfactory to the
Depositary and (ii) set forth the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued
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upon the deposit of Restricted Shares shall be separately identified on the
books of the Depositary and the Restricted Shares so deposited shall be held
separate and distinct from the other Deposited Securities held hereunder.
Neither the Restricted Shares nor the Restricted ADSs shall be eligible for
Pre-Release Transactions described in Section 5.10 hereof. The Restricted ADSs
shall not be eligible for inclusion in any book-entry settlement system,
including, without limitation, DTC, and shall not in any way be fungible with
the ADSs issued under the terms hereof that are not Restricted ADSs. The
Restricted ADRs and the Restricted ADSs evidenced thereby shall be transferable
only by the Holder thereof upon delivery to the Depositary of (i) all
documentation otherwise contemplated by this Deposit Agreement and (ii) an
opinion of counsel reasonably satisfactory to the Depositary setting forth,
inter alia, the conditions upon which the Restricted ADR presented is, and the
Restricted ADSs evidenced thereby are, transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
set forth on the Restricted ADR presented for transfer. Except as set forth in
this Section 2.12 and except as required by applicable law, the Restricted ADRs
and the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs
issued and outstanding under the terms of this Deposit Agreement.
ARTICLE 3.
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS
Section 3.1 Proofs, Certificates and Other Information. Any person or
entity presenting Shares for deposit, any Holder and any Beneficial Owner may be
required by the Depositary or the Company, and every Holder and Beneficial Owner
agrees, from time to time to provide to the Depositary, the Custodian or the
Company 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 this Deposit Agreement and the provisions of,
or governing, the
22
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Deposited Securities, to execute such certifications and to make such
representations and warranties, and to provide such other information and
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 appointed agent of the Company for the registration and
transfer of Shares) as the Depositary or the Custodian reasonably may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations hereunder. The Depositary and
the Registrar, as applicable, may, and at the reasonable request of the Company,
shall, withhold the execution or delivery or registration of transfer of any
Receipt or the distribution or sale of any dividend or distribution of rights or
of the proceeds thereof or, to the extent not limited by the terms of Section
7.8 hereof, the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary's, the Registrar's and the Company's reasonable
satisfaction. The Depositary shall from time to time advise the Company of (i)
any such proofs of citizenship or residence, taxpayer status, or exchange
control approval which it receives from Holders and Beneficial Owners, and (ii)
any other information or documents which the Company may reasonably request and
which the Depositary shall request and receive from any Holder or Beneficial
Owner or any person or entity presenting Shares for deposit or ADSs for
cancellation and withdrawal and shall provide the Company, in a timely manner,
with copies, or originals thereof upon the request of the Company. Nothing
herein shall obligate the Depositary to (i) obtain any information for the
Company if not provided by the Holders or Beneficial Owners or (ii) verify or
vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. If any tax or other
governmental charge shall become payable with respect to any ADR or any
Deposited Securities or American Depositary Shares, such tax or other
governmental charge shall be payable by the
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Holders and Beneficial Owners to the Depositary. The Company, the Custodian
and/or the Depositary may withhold or deduct from any distributions made in
respect of Deposited Securities and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, split-up or combination of ADRs and (subject to Section 7.8) the
withdrawal of Deposited Securities until payment in full of such tax, charge,
penalty or interest is received. Every Holder 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 Holder and/or Beneficial
Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
person or entity depositing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that (i) such Shares and the certificates
therefor are duly authorized, validly issued, fully paid, non-assessable and
legally obtained by such person or entity, (ii) all preemptive (and similar)
rights, if any, with respect to such Shares have been validly waived or
exercised, (iii) the person or entity making such deposit is duly authorized so
to do, (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim, and are not,
except as contemplated in Section 2.12 herein, and the ADSs issuable upon such
deposit will not be, except as contemplated in Section 2.12 herein, Restricted
Securities, and (v) the Shares presented for deposit have not been stripped of
any right or entitlement. Such representations and warranties shall survive the
deposit and withdrawal of Shares, the issuance and cancellation of American
Depositary Shares in respect thereof and the transfer of such American
Depositary Shares. If any such representations or warranties are false in any
way, the
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Company and the Depositary shall be authorized, at the cost and expense of the
person or entity depositing Shares, to take any and all actions necessary to
correct the consequences thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement, each Holder and Beneficial Owner
agrees to comply with requests from the Company pursuant to Singapore law, the
rules and requirements of the Stock Exchange of Singapore Limited, and any other
stock exchange on which the Shares are, or will be, registered, traded or
listed, the rules and requirements of the CDP or any other clearing system
through which transactions in the Shares may be settled or the Memorandum and
Articles of Association of the Company, which are made to provide information,
inter alia, as to the capacity in which such Holder or Beneficial Owner owns
American Depositary Shares (and Shares as the case may be) and regarding the
identity of any other person(s) or entity(ies) interested in such American
Depositary Shares and the nature of such interest and various other matters,
whether or not they are Holders and/or Beneficial Owners at the time of such
request. 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 Holders and to forward to the Company any such responses to
such requests received by the Depositary.
Section 3.5 Ownership Restrictions. Notwithstanding any other provision
in this Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits imposed
by applicable law or the Memorandum and Articles of Association of the Company.
The Company may also restrict, in such manner as it deems appropriate, transfers
of the American Depositary Shares where such transfer may result in the total
number of Shares represented by the American Depositary Shares owned by a single
Holder or Beneficial Owner to exceed any such limits. The Company may, in its
sole discretion but subject to applicable law, instruct the Depositary to take
action with respect to the ownership interest of any Holder or Beneficial Owner
in excess of the limits set forth in the preceding sentence, including, but not
limited to, the imposition of restrictions on the
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transfer of American Depositary Shares, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the American Depositary Shares held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Memorandum and Articles
of Association of the Company.
ARTICLE 4.
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or receives proceeds from the sale of
any Shares, rights, securities or other entitlements under the terms hereof, the
Depositary will, if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the reasonable judgment of the Depositary (pursuant to
Section 4.8 hereof), be converted on a practicable basis into Dollars
transferable to the United States, promptly convert or cause to be converted
such cash dividend, distribution or proceeds into Dollars (on the terms
described in Section 4.8) and will distribute promptly the amount thus received
(net of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS
Record Date in proportion to the number of American Depositary Shares held as of
the ADS Record Date. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder a fraction of one cent,
and any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs
outstanding at the time of the next distribution. If the Company, the Custodian
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 Holders of the American Depositary Shares representing such
Deposited Securities
26
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shall be reduced accordingly. Such withheld amounts shall be forwarded by the
Company, the Custodian or the Depositary to the relevant governmental authority.
Evidence of payment thereof by the Company shall be forwarded by the Company to
the Depositary upon request.
Section 4.2 Distribution in Shares. If any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of, Shares,
the Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 hereof and shall, subject to Section 5.9 hereof, either
(i) distribute to the Holders as of the ADS Record Date in proportion to the
number of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), or (ii) if additional American Depositary Shares are not so distributed,
each American Depositary Share issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and
interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes). In lieu of
delivering fractional American Depositary Shares, the Depositary shall sell the
number of Shares or American Depositary Shares, as the case may be, represented
by the aggregate of such fractions and distribute the net proceeds upon the
terms described in Section 4.1.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligation under Section 5.7 hereof, has furnished an opinion
of U.S. counsel determining that Shares must be registered
27
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under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), the Depositary
may dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of such (a) taxes and (b) fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms described in Section 4.1.
The Depositary shall hold and/or distribute any unsold balance of such property
in accordance with the provisions of this Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the
Company intends to distribute a dividend payable at the election of the holders
of Shares in cash or in additional Shares, the Company shall use its best
efforts to give notice thereof to the Depositary at least 60 days prior to the
proposed distribution stating whether or not it wishes such elective
distribution to be made available to Holders of ADSs. Upon receipt of notice
indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall make such
elective distribution available to Holders only if (i) the Depositary shall have
determined that such distribution is reasonably practicable and (ii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7. If the above conditions are not satisfied, the Depositary shall, to
the extent permitted by law, distribute to the Holders, on the basis of the same
determination as is made in the local market in respect of the Shares for which
no election is made, either (x) cash upon the terms described in Section 4.1 or
(y) additional ADSs representing such additional Shares upon the terms described
in Section 4.2. If the above conditions are satisfied, the Depositary shall
establish an ADS Record Date (on the terms described in Section 4.9) and
establish procedures to enable Holders to elect the receipt of the
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proposed dividend in cash or in additional ADSs. The Company shall assist the
Depositary in establishing such procedures to the extent necessary. If a Holder
elects to receive the proposed dividend (x) in cash, the dividend shall be
distributed upon the terms described in Section 4.1, or (y) in ADSs, the
dividend shall be distributed upon the terms described in Section 4.2. Nothing
herein shall obligate the Depositary to make available to Holders a method to
receive the elective dividend in Shares (rather than ADSs). There can be no
assurance that Holders generally, or any Holder in particular, will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
Section 4.4 Distribution of Rights to Purchase Shares.
4.4.1. Distribution to ADS Holders. Whenever the Company intends
to distribute to the holders of the Deposited Securities rights to subscribe for
additional Shares, the Company shall use its best efforts to give notice thereof
to the Depositary at least 60 days prior to the proposed distribution stating
whether or not it wishes such rights to be made available to Holders of ADSs.
Upon receipt of a notice indicating that the Company wishes such rights to be
made available to Holders of ADSs, the Depositary shall consult with the Company
to determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such rights available to
the Holders. The Depositary shall make such rights available to Holders only if
(i) the Company shall have requested that such rights be made available to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution of rights is reasonably practicable. In the event any of
the conditions set forth above are not satisfied, the Depositary shall proceed
with the sale of the rights as contemplated in Section 4.4.2 below. In the event
all conditions set forth above are satisfied, the Depositary shall establish an
ADS Record Date (upon the terms described in Section 4.9) and establish
procedures to distribute rights to purchase additional ADSs (by means of
warrants or otherwise) and to enable the Holders to exercise such rights (upon
payment of applicable (a) fees and charges of,
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and expenses incurred by, the Depositary and (b) taxes). The Company shall
assist the Depositary to the extent necessary in establishing such procedures.
Nothing herein shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs).
4.4.2. Sale of Rights. If (i) the Company does not request the
Depositary to make the rights available to Holders or requests that the rights
not be made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it is
not reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary, upon consultation with the Company, shall determine whether it is
lawful and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem proper. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The Depositary shall,
upon such sale, convert and distribute proceeds of such sale (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
upon the terms set forth in Section 4.1.
4.4.3. Lapse of Rights. If the Depositary is unable to make any
rights available to Holders upon the terms described in Section 4.4.1 or to
arrange for the sale of the rights upon the terms described in Section 4.4.2,
the Depositary shall allow such rights to lapse.
Neither the Depositary nor the Company shall be responsible for
(i) any failure to determine that it may be lawful or practicable to make such
rights available to Holders in general or any Holders in particular, or (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
exercise. The Depositary shall not be responsible for the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration
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(under the Securities Act or any other applicable law) of the rights or the
securities to which any rights relate may be required in order for the Company
to offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not distribute such rights to
the Holders unless and until a registration statement under the Securities Act
(or other applicable law) covering such offering is in effect. In the event that
the Company, the Depositary or the Custodian shall be required to withhold and
does withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder
in particular, will be given the opportunity to receive or exercise rights on
the same terms and conditions as the holders of Shares or be able to exercise
such rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
4.5.1. Whenever the Company intends to distribute to the holders
of Deposited Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give timely notice thereof to the
Depositary and shall indicate whether or not it wishes such distribution to be
made to Holders of ADSs. Upon receipt of a notice indicating that the Company
wishes such distribution be made to Holders of ADSs, the Depositary shall
consult
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with the Company, and the Company shall assist the Depositary, to determine
whether such distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall have
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7, and (iii) the Depositary shall have determined that such
distribution is reasonably practicable.
4.5.2. Upon receipt of satisfactory documentation and the
request of the Company to distribute property to Holders of ADSs and after
making the requisite determinations set forth in (a) above, the Depositary shall
distribute as promptly as practicable the property so received to the Holders of
record, as of the ADS Record Date, in proportion to the number of ADSs held by
them respectively and in such manner as the Depositary may deem reasonably
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in such amounts
and in such manner (including public or private sale) as the Depositary may deem
reasonably practicable or necessary to satisfy any taxes (including applicable
interest and penalties) or other governmental charges applicable to the
distribution.
4.5.3. If (i) the Company does not request the Depositary to
make such distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory documentation within
the terms of Section 5.7, or (iii) the Depositary reasonably determines that all
or a portion of such distribution is not reasonably practicable, the Depositary
shall as promptly as practicable sell or cause such property to be sold in a
public or private sale, at such place or places and upon such terms as it may
deem reasonably proper and shall as promptly as practicable (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary
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and (b) taxes) to the Holders as of the ADS Record Date upon the terms of
Section 4.1. If the Depositary is unable to sell such property, the Depositary
may, upon consultation with the Company, dispose of such property in any way it
deems reasonably practicable under the circumstances.
Section 4.6 Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
Section 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall use
its reasonable best efforts to give notice thereof to the Depositary at least 60
days prior to the intended date of redemption which notice shall set forth the
particulars of the proposed redemption. Upon receipt of such (i) notice and (ii)
satisfactory documentation given by the Company to the Depositary within the
terms of Section 5.7, and only if the Depositary shall have determined that such
proposed redemption is practicable, the Depositary shall mail to each Holder a
notice setting forth the intended exercise by the Company of the redemption
rights and any other particulars set forth in the Company's notice to the
Depositary. The Depositary shall instruct the Custodian to present to the
Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary,
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and (b) taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by
Holders thereof and the terms set forth in Sections 4.1 and 6.2 hereof. If less
than all outstanding Deposited Securities are redeemed, the ADSs to be retired
will be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the per share amount received
by the Depositary upon the redemption of the Deposited Securities represented by
American Depositary Shares (subject to the terms of Section 4.8 hereof and the
applicable fees and charges of, and expenses incurred by, the Depositary, and
taxes) multiplied by the number of Deposited Securities represented by each ADS
redeemed.
Section 4.8 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, which in the reasonable judgment of the Depositary can at such time be
converted on a practicable basis, by sale or in any other manner that it may
determine in accordance with applicable law, into Dollars transferable to the
United States and distributable to the Holders entitled thereto, the Depositary
shall, as promptly as practicable, convert or cause to be converted, by sale or
in any other manner that it may reasonably determine, such Foreign Currency into
Dollars, and shall, as promptly as practicable, distribute such Dollars (net of
any applicable fees, any reasonable and customary expenses incurred in such
conversion and any expenses incurred on behalf of the Holders in complying with
currency exchange control or other governmental requirements) to the Holders in
accordance with the terms of the applicable sections of this Deposit Agreement.
If the Depositary shall have distributed warrants or other instruments that
entitle the holders thereof to such Dollars, the Depositary shall distribute
such Dollars to the holders of such warrants and/or instruments upon surrender
thereof for cancellation, in either case without liability for interest thereon.
Such distribution may be made upon an averaged or other practicable basis
without regard to any distinctions among Holders on account of any application
of exchange restrictions or otherwise.
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If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall promptly file such
application for approval or license, if reasonably practical.
If at any time the Depositary shall determine that in its reasonable
judgment the conversion of any Foreign Currency and the transfer and
distribution of proceeds of such conversion received by the Depositary is not
reasonably practical or lawful, or if any approval or license of any
governmental authority or agency thereof that is required for such conversion,
transfer and distribution is denied or, in the reasonable opinion of the
Depositary, not obtainable at a reasonable cost or within a reasonable period,
the Depositary shall, upon consultation with the Company, (i) as promptly as
practicable make such conversion and distribution in Dollars to the Holders for
whom such conversion, transfer and distribution is lawful and practicable, (ii)
as promptly as practicable distribute the Foreign Currency (or an appropriate
document evidencing the right to receive such Foreign Currency) to Holders for
whom such distribution is lawful and practicable or (iii) hold (or cause the
Custodian to hold) such Foreign Currency (without liability for interest
thereon) for the respective accounts of the Holders entitled to receive the
same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), 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, or solicitation of consents
or of proxies, of holders of Shares or other Deposited Securities, or whenever
the Depositary shall find it necessary or convenient in connection with the
giving of any notice, solicitation of any consent or any other matter, the
Depositary, upon consultation with the Company, shall fix a record date (the
"ADS Record Date") for the determination of the Holders of Receipts who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, to give or
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withhold such consent, to receive such notice or solicitation or to otherwise
take action, or to exercise the rights of Holders with respect to such changed
number of Shares represented by each American Depositary Share. The Depositary
shall make reasonable efforts to establish the ADS Record Date as closely as
possible to the applicable record date for the Deposited Securities (if any).
Subject to applicable law and the provisions of Section 4.1 through 4.8 and to
the other terms and conditions of this Deposit Agreement, only the Holders of
Receipts at the close of business in New York on such ADS Record Date shall be
entitled to receive such distribution, to give such voting instructions, to
receive such notice or solicitation, or otherwise take action.
Section 4.10 Voting of Deposited Securities. As soon as practicable
after receipt of notice of any meeting at which the holders of Shares are
entitled to vote, or of solicitation of consents or proxies from holders of
Shares or other Deposited Securities, the Depositary shall fix the ADS Record
Date in respect of such meeting or solicitation of consent or proxy. The
Depositary shall, if requested by the Company in writing in a timely manner (the
Depositary having no obligation to take any further action if the request shall
not have been received by the Depositary at least 21 days prior to the date of
such vote or meeting) and at the Company's expense, as soon as practicable, mail
to Holders: (a) such notice of meeting or solicitation of consent or proxy, (b)
a statement that the Holders at the close of business on the ADS Record Date
will be entitled, subject to any applicable law, the Memorandum and Articles of
Association of the Company and the provisions of or governing the Deposited
Securities (which provisions, if any, shall be summarized in pertinent part by
the Company), to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder's American Depositary Shares, and (c) a brief
statement as to the manner in which such instructions may be given. Voting
instructions may be given only in respect of a number of American Depositary
Shares representing an integral number of Shares or other Deposited Securities.
Upon the timely receipt of written instructions of a Holder of American
Depositary Shares on the ADS Record Date, the Depositary shall
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endeavor, insofar as reasonably practicable and permitted under applicable law
and the provisions of the Memorandum and Articles of Association of the Company
and the provisions of the Deposited Securities, to vote or cause the Custodian
to vote the Shares and/or other Deposited Securities (in person or by proxy)
represented by such Holder's American Depositary Shares in accordance with such
instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise, the Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders. If voting
instructions are received by the Depositary from any Holder on or before the
date established by the Depositary for the receipt of such instructions, which
are signed but without further indication as to specific instructions, the
Depositary will deem such Holder to have instructed the Depositary to vote in
favor of the items set forth in 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 Holder shall not be
voted.
Voting at any meeting of shareholders is by a show of hands unless a
poll is demanded. Neither the Depositary nor the Custodian shall demand voting
by a poll. In the event a poll is demanded, voting of Shares and/or other
Deposited Securities shall be in accordance with the written instructions
received from the Holders giving such instructions.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a timely
manner.
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, stock split (either forward or reverse),
cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization,
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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 the
Custodian in exchange for, or in conversion of or replacement of or otherwise in
respect of, such Deposited Securities shall, to the extent permitted by law, be
treated as new Deposited Securities under this Deposit Agreement, and the
Receipts shall, subject to the provisions of this Deposit Agreement and
applicable law, evidence American Depositary Shares representing the right to
receive such securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of this Deposit
Agreement and the receipt of an opinion of counsel to the Company (if an opinion
is requested by the Depositary) reasonably satisfactory to the Depositary that
such distributions are not in violation of any applicable laws or regulations,
execute and deliver additional Receipts as in the case of a stock dividend or
stock split, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts as in the case of a reverse stock split and in either case,
with any necessary modifications to the form of Receipt contained in hereto, to
give effect to such corporate change. The Company agrees to, jointly with the
Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall, if the Company requests, subject to, if requested by the
Depositary, the receipt of an opinion of counsel to the Company reasonably
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 reasonably 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
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash
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pursuant to Section 4.1. Neither the Depositary nor the Company shall be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such securities available to Holders in general or to any Holder in
particular or any foreign exchange exposure or loss incurred in connection with
such sale. The Depositary shall not be responsible for any liability to the
purchaser of such securities.
Section 4.12 Available Information. The Company is subject to the
periodic reporting requirements of the Exchange Act and accordingly files
certain information with the Commission. These reports and documents can be
inspected and copied at the public reference facilities maintained by the
Commission located at Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C.
20549 and at the Commission's New York City office located at Seven World Trade
Center, 13th Floor, New York, New York 10048.
Section 4.13 Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
mail to Holders copies of such reports when furnished by the Company pursuant to
Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
Section 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends
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and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent reasonably
practicable, the Depositary or the Custodian will take reasonable administrative
actions to obtain tax refunds, reduced withholding of tax at source on dividends
and other benefits under applicable tax treaties or laws with respect to
dividends and other distributions on the Deposited Securities. Holders and
Beneficial Owners may be required from time to time, and in a timely manner, to
file such proof of taxpayer status, residence and beneficial ownership (as
applicable), to execute such certificates and to make such representations and
warranties, or to provide any other information or documents, as the Depositary
or the Custodian may deem necessary or proper to fulfill the Depositary's or the
Custodian's obligations under applicable law. Holders and Beneficial Owners
shall indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and Affiliates against, and hold each of
them harmless from, any claims by any governmental authority with respect to
taxes, additions to tax, penalties or interest arising out of any refund of
taxes, reduced rate of withholding at source or other tax benefit obtained
(except with respect to taxes which are payable by the Company as provided in
Section 3.2).
If the Company (or any of its agents) withholds from any distribution
any amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e. stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law or to the extent requested in writing by the Company, report to Holders
any taxes withheld by it or the Custodian, and, if such information is provided
to it by the Company, any taxes withheld by the Company. The Depositary and the
Custodian shall not be required to provide the Holders with any evidence of the
remittance by the
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Company (or its agents) of any taxes withheld, or of the payment of taxes by the
Company, except to the extent the evidence is provided by the Company to the
Depositary. None of the Depositary, the Custodian and the Company shall be
liable for any failure by any Holder or Beneficial Owner to obtain the benefits
of credits on the non-U.S. tax paid against such Holder's or Beneficial Owner's
income tax liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company,
except to the extent the Company provides such information to the Depositary for
distribution to the Holders and Beneficial Owners. Neither the Depositary nor
the Company shall incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign Personal Holding Company," or as a "Passive Foreign Investment Company"
(in each case as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
for the purpose of withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a
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business or object other than the business of the Company or other than a matter
related to this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed reasonably necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Section 7.8 hereof.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registration of Receipts and transfers,
combinations and split-ups, and to countersign such Receipts in accordance with
any requirements of such exchanges or systems. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary.
Section 5.2 Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
Singapore or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future of the Memorandum and Articles of Association of the Company or any
provision of or governing any Deposited Securities, or by reason of any act of
God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Memorandum and
Articles of Association of the Company or provisions of or governing
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Deposited Securities, (iii) for any action or inaction in reliance upon the
advice of or information from legal counsel, accountants, any person or entity
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person or entity believed by it in good
faith to be competent to give such advice or information, (iv) for the inability
by a Holder 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 this Deposit Agreement, made available
to Holders of American Depositary Shares or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement.
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.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.3 Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or
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in respect of the Receipts, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense (including
fees and disbursements of counsel) and liability be furnished as often as may be
required (and no Custodian shall be under any obligation whatsoever with respect
to such proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. Neither the Depositary nor, to the extent permitted by
law, the Company, shall incur any liability for any failure to determine that
any distribution or action may be lawful or reasonably practicable, for any
investment risk associated with acquiring an interest in the Deposited
Securities, for the validity or worth of the Deposited Securities or for any tax
consequences that may result from the ownership of ADSs, Shares or Deposited
Securities, for the credit-worthiness of any third party, or for allowing any
rights to lapse upon the terms of this Deposit Agreement. The Depositary shall
not incur liability for the content of any information submitted to it by the
Company for distribution to the Holders or for any inaccuracy of any translation
thereof or the failure or timeliness of any notice from the Company.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
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thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided. The Depositary may at any time be removed by the Company
by written notice of such removal, which removal shall be effective on the
earlier of (i) the 60th day after delivery thereof to the Depositary (whereupon
the Depositary shall be entitled to take the actions contemplated in Section 6.2
hereof), or (ii) upon the appointment by the Company of a successor depositary
and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The predecessor depositary,
upon payment of all sums due it and on the written request of the Company shall,
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in Sections
5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title and
interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed
Citibank Nominees Singapore Pte Ltd as Custodian for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Shares, for which the Custodian acts as custodian and shall be responsible
solely to it. If any Custodian resigns or is discharged from its duties
hereunder
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with respect to any Deposited Securities and no other Custodian has previously
been appointed hereunder, the Depositary, with the prior written consent of the
Company, shall promptly appoint a substitute custodian that is organized under
the laws of Singapore. The Depositary shall require such resigning or discharged
Custodian to deliver the Deposited Securities held by it, together with all such
records maintained by it as Custodian with respect to such Deposited Securities
as the Depositary may request, to the Custodian designated by the Depositary.
Whenever the Depositary determines, with the prior approval of the Company, that
it is appropriate to do so, it may appoint an additional custodian with respect
to any Deposited Securities, or discharge the Custodian with respect to any
Deposited Securities and appoint a substitute custodian, which shall thereafter
be Custodian hereunder with respect to the Deposited Securities. Immediately
upon any such change, the Depositary shall give prompt notice thereof in writing
to all Holders of Receipts, each other Custodian and the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6 Notices and Reports. As soon as practicable after the first
date on which the Company gives notice, by publication or otherwise, of any
meeting of holders of Shares or other Deposited Securities, or of any adjourned
meeting of such holders, or of the taking of any action by such holders other
than at a meeting, or of the taking of any action in respect of any cash or
other distributions or the offering of any rights in respect of Deposited
Securities, the Company shall transmit to the Depositary and the Custodian a
copy of the notice thereof in the English language but otherwise in the form
given or to be given to holders of
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Shares or other Deposited Securities. The Company shall also furnish to the
Custodian and the Depositary a summary, in English, of any applicable provisions
or proposed provisions of the Memorandum and Articles of Association of the
Company that may be relevant or pertain to such notice of meeting or be the
subject of a vote thereat.
The Company will also transmit to the Depositary (a) an English language
version of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other Deposited
Securities and (b) the English-language versions of the Company's annual and
semi-annual reports prepared in accordance with the applicable requirements of
the Commission. The Depositary shall arrange, at the request of the Company and
at the Company's expense, for the mailing of copies thereof to all Holders or
make such notices, reports and other communications available to all Holders on
a basis similar to that for holders of Shares or other Deposited Securities or
on such other basis as the Company may advise the Depositary or as may be
required by any applicable law, regulation or stock exchange requirement. The
Company has delivered to the Depositary and the Custodian a copy of the
Company's Memorandum and Articles of Association along with the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any Affiliate of the Company in connection with such Shares, and promptly upon
any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such amendment thereto or change therein.
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The Depositary will, at the expense of the Company, make available a
copy of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares representing such Shares governed by
such provisions at the Depositary's Principal Office, at the office of the
Custodian and at any other designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
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that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets, and
in the event that any such transaction affects the Deposited Securities, the
Company, if requested by the Depositary, will furnish to the Depositary (a) a
written opinion of U.S. counsel (reasonably satisfactory to the Depositary)
stating whether or not application of such transaction to Holders and Beneficial
Owners (1) requires a registration statement under the Securities Act to be in
effect or (2) is exempt from the registration requirements of the Securities Act
and (b) an opinion of Singapore counsel stating that (1) making the transaction
available to Holders and Beneficial Owners does not violate the laws or
regulations of Singapore and (2) all requisite regulatory consents and approvals
have been obtained in Singapore. If the filing of a registration statement is
required, the Depositary shall not have any obligation to proceed with the
transaction unless it shall have received evidence reasonably satisfactory to it
that such registration statement has been declared effective. If, being advised
by counsel, the Company determines that a transaction is required to be
registered under the Securities Act, the Company will either (i) register such
transaction to the extent necessary, (ii) alter the terms of the transaction to
avoid the registration requirements of the Securities Act or (iii) direct the
Depositary to take specific measures, in each case as contemplated in this
Deposit Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any
of its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon
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<PAGE> 53
original issuance or upon a sale of Shares or other Deposited Securities
previously issued and reacquired by the Company or by any such Affiliate, or
(ii) issue additional Shares, rights to subscribe for such Shares, securities
convertible into or exchangeable for Shares or rights to subscribe for such
securities, unless such transaction and the securities issuable in such
transaction are exempt from registration under the Securities Act and, if
applicable, the Exchange Act or have been registered under the Securities Act
and, if applicable, the Exchange Act (and such registration statement has been
declared effective).
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
under the terms hereof due to the negligence or bad faith of (i) the Depositary,
(ii) any custodian, registrar or transfer agent which is a subsidiary (as such
term is defined under Regulation C of the Securities Act) or branch of the
Depositary, and (iii) any other Citibank entities performing the function of
custodian, registrar or transfer agent.
The Company agrees to indemnify the (i) the Depositary, (ii) any
custodian, registrar or transfer agent which is a subsidiary (as such term is
defined under Regulation C of the Securities Act) or branch of the Depositary
and (iii) any other Citibank entities performing the function of custodian,
registrar or transfer agent, and any of their respective directors, officers,
employees, agents and Affiliates (each, an "Indemnified Person") against, and
hold each of them harmless from, any direct loss, liability,
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<PAGE> 54
tax, charge or expense of any kind whatsoever (including, but not limited to,
the reasonable fees and expenses of counsel) that may arise out of acts
performed or omitted (x) by an Indemnified Person, except to the extent such
loss, liability, tax, charge or expense is due to the negligence or bad faith of
such Indemnified Person, at the instruction and on behalf of the Company
pursuant to the provisions of this Deposit Agreement or the Receipts or (y) by
the Company or any of its directors, officers, employees, agents and Affiliates
pursuant to the provisions of this Deposit Agreement or the Receipts.
The Company shall not be liable for any loss or liability or expense
which arises out of information (or omissions from such information) relating to
the Indemnified Persons, furnished in writing to the Company by such Indemnified
Person expressly for use in any registration statement, proxy statement or
prospectus under the Securities Act.
The obligations set forth in this Section shall survive the termination
of this Deposit Agreement and the succession or substitution of any party
hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the Holders,
the Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be
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<PAGE> 55
changed by agreement between the Depositary and the Company, but, in the case of
fees and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees and
charges and to reimburse the Depositary for such out-of-pocket expenses as the
Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement in writing between the Company and the Depositary.
Unless otherwise agreed, the Depositary shall present its statement for such
expenses and fees or charges to the Company once every three months. The charges
and expenses of the Custodian are for the sole account of the Depositary.
Notwithstanding any provision to the contrary in this Deposit Agreement,
the fees and expenses payable by the Company to the Depositary shall be paid in
accordance with arrangements previously agreed to in writing between the Company
and the Depositary, as well as any further agreements which the Depositary and
the Company may agree to in writing from time to time, which terms shall govern
in the event of an inconsistency between such agreements and this Deposit
Agreement.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release. Subject to the further terms and provisions of
this Section 5.10, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities, including ADSs, of the
Company and its Affiliates. In its capacity as Depositary, the Depositary shall
not lend Shares or ADSs; provided, however, that the
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Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section
2.3 and (ii) Deliver Shares prior to the receipt of ADSs for withdrawal of
Deposited Securities pursuant to Section 2.7, including ADSs which were issued
under (i) above but for which Shares may not have been received (each such
transaction a "Pre-Release Transaction"). The Depositary may receive ADSs in
lieu of Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs, and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
United States government securities 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 Depositary will normally
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems reasonably appropriate.
The Depositary may also set limits with respect to the number of ADSs
and Shares involved in Pre-Release Transactions with any one person on a case by
case basis as it deems reasonably appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
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Section 5.11 Restricted Securities Owners. The Company agrees to provide
the Depositary a list setting forth each of the persons who, to the actual
knowledge of the Company, holds Restricted Securities and agrees to advise each
of the persons so listed that such Restricted Securities are ineligible for
deposit hereunder, except as contemplated by Section 2.12 hereof. Upon each
issuance by the Company of any securities that are Restricted Securities, the
Company shall provide the Depositary with an updated list setting forth, to the
actual knowledge of the Company, those persons who beneficially acquired
Restricted Securities, and shall advise each of the persons so listed but not
previously notified that such Restricted Securities are ineligible for deposit
hereunder, except as contemplated by Section 2.12 hereof. The Depositary may
rely on such a list or update but shall not be liable for any action or omission
made in reliance thereon. The Company shall establish reasonable procedures to
reasonably ensure that such Restricted Securities are not deposited hereunder by
the holders thereof except as contemplated by Section 2.12 hereof.
ARTICLE 6.
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. The Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached
thereto and to be issued under the terms thereof may at any time and from time
to time be amended or supplemented by written agreement between the Company and
the Depositary in any respect which they may deem necessary or desirable without
the prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts.
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The parties hereto agree that any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order for
(a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act or (b) the American Depositary Share(s) to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such American
Depositary Share(s), to consent and agree to such amendment or supplement and to
be bound by this Deposit Agreement as amended and supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder 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 which would require amendment or supplement of this Deposit
Agreement to ensure compliance therewith, the Company and the Depositary may
amend or supplement this Deposit Agreement and the Receipt at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to this Deposit Agreement in such circumstances may become effective
before a notice of such amendment or supplement is given to Holders or within
any other period of time as required for compliance with such laws, rules or
regulations.
Section 6.2 Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If 60
days shall have expired after (i) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as
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provided in Section 5.4, the Depositary may terminate this Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On
and after the date of termination of this Deposit Agreement, the Holder will,
upon surrender of such Receipt at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of Receipts
referred to in Section 2.7 and subject to the conditions and restrictions
therein set forth, and upon payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of this Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in this Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.7, 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, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders of
Receipts whose Receipts have not theretofore been surrendered. After making such
sale, the Depositary shall be discharged from all obligations under this Deposit
Agreement with
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respect to the Receipts, the Deposited Securities and the American Depositary
Shares, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of this Deposit Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the Depositary under
Sections 5.8, 5.9 and 7.6 hereof.
ARTICLE 7.
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person or entity, except to the extent specifically set forth in this
Deposit Agreement. Nothing in this Deposit Agreement shall be deemed to give
rise to a partnership or joint venture among the parties nor establish a
fiduciary or similar relationship among the parties. The parties hereto
acknowledge and agree that (i) the Depositary and its Affiliates may at any time
have multiple banking relationships with the Company and its Affiliates, (ii)
the Depositary and its Affiliates may be engaged at any time in transactions in
which parties adverse to the Company or the Holders or Beneficial Owners may
have interests and (iii) nothing contained in this Agreement shall (a) preclude
the Depositary or any of its Affiliates from engaging in such transactions or
establishing or maintaining such relationships, (b) obligate the Depositary or
any of its Affiliates to disclose such transactions or
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relationships or to account for any profit made or payment received in such
transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to this Deposit Agreement and shall be bound by all of
the terms and conditions thereof and of any Receipt by acceptance thereof of any
beneficial interest therein.
Section 7.5 Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Chartered Semiconductor Manufacturing Ltd, 60 Woodlands Industrial
Park D, Street 2, Singapore 738406, Republic of Singapore, Attention: Legal
Department, or to any other address which the Company may specify in writing to
the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Citibank, N.A., 111 Wall Street, New York, New York 10043, U.S.A. Attention: ADR
Department, or to any other address which the Depositary may specify in writing
to the Company.
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Any and all notices to be given to the Custodian shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter, addressed to Citibank
Nominees Singapore Pte Ltd, 300 Tampines Avenue #07- 00, Tampines Junction,
Singapore 529653 or to any other address which the Custodian may specify in
writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, notwithstanding that such
cable, telex or facsimile transmission shall not subsequently be confirmed by
letter as aforesaid.
Section 7.6 Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in this Deposit Agreement, any
Receipt or any present or future provisions of the laws of the State of New
York, the rights of holders of Shares and of any other Deposited Securities and
the obligations and duties of the Company in respect of the holders of Shares
and other Deposited Securities, as such, shall be governed by the laws of
Singapore (or, if applicable, such other laws as may govern the Deposited
Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute
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between them that may arise out of or in connection with this Deposit Agreement
and, for such purposes, each irrevocably submits to the non-exclusive
jurisdiction of such courts. The Company hereby irrevocably designates, appoints
and empowers Chartered Semiconductor Manufacturing, Inc. (the "Agent") now at
1450 McCandless Drive, Milpitas, California 95035 as its authorized agent to
receive and accept for and on its behalf, and on behalf of its properties,
assets and revenues, service by mail of any and all legal process, summons,
notices and documents that may be served in any suit, action or proceeding
brought against the Company in any federal or state court as described in the
preceding sentence or in the next paragraph of this Section 7.6. If for any
reason the Agent shall cease to be available to act as such, the Company agrees
to designate a new agent on the terms and for the purposes of this Section 7.6
reasonably satisfactory to the Depositary. The Company further hereby
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents in any suit, action or proceeding against the
Company, by service by mail of a copy thereof upon the Agent (whether or not the
appointment of such Agent shall for any reason prove to be ineffective or such
Agent shall fail to accept or acknowledge such service), with a copy mailed to
the Company by registered or certified air mail, postage prepaid, to its address
provided in Section 7.5 hereof. The Company agrees that the failure of the Agent
to give any notice of such service to it shall not impair or affect in any way
the validity of such service or any judgment rendered in any action or
proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each
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other arising out of the subject matter of such suit, action or proceeding, then
the Company and the Depositary may pursue such claim against each other in the
state or federal court in the United States in which such suit, action, or
proceeding is pending and, for such purposes, the Company and the Depositary
irrevocably submit to the non-exclusive jurisdiction of such courts. The Company
agrees that service of process upon the Agent in the manner set forth in the
preceding paragraph shall be effective service upon it for any suit, action or
proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court as
provided in this Section 7.6, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of immunity
from legal action, suit or proceeding, from setoff or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, this Deposit Agreement, any Receipt or the Deposited
Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.7 Assignment. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned by either the Company or the
Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding
anything
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in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.9 Titles. All references in this Deposit Agreement to
exhibits, articles, sections, subsections, and other subdivisions refer to the
exhibits, articles, sections, subsections and other subdivisions of this Deposit
Agreement unless expressly provided otherwise. The words "this Deposit
Agreement", "herein", "hereof", "hereby", "hereunder", and words of similar
import refer to this Deposit Agreement as a whole as in effect between the
Company, the Depositary and the Holders and Beneficial Owners of ADSs and not to
any particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender, and
words in the singular form shall be construed to include the plural and vice
versa unless the context otherwise requires. Titles to sections of this Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement.
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IN WITNESS WHEREOF, CHARTERED SEMICONDUCTOR MANUFACTURING LTD and
CITIBANK, N.A. have duly executed this Deposit Agreement as of the day and year
first above set forth and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of American Depositary Shares evidenced by
Receipts issued in accordance with the terms hereof, or upon acquisition of any
beneficial interest therein.
CHARTERED SEMICONDUCTOR
MANUFACTURING LTD
By:
Name:
Title:
CITIBANK, N.A.
By:
Name:
Title:
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EXHIBIT A
[FORM OF RECEIPT]
Number
CUSIP NUMBER:
American Depositary Shares (each
American Depositary Share
representing ten (10) ordinary
shares each of par value S$0.26)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
(Incorporated under the laws of the Republic of Singapore)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, each of Par Value of S$0.26, including evidence of rights to receive
such ordinary shares (the "Shares") of Chartered Semiconductor Manufacturing
Ltd, a corporation incorporated under the laws of the Republic of Singapore (the
"Company"). As of the date of this Deposit Agreement (as hereinafter defined),
each ADS represents ten (10) Shares deposited under this Deposit Agreement with
the Custodian, which
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at the date of execution of this Deposit Agreement is - (the "Custodian"). The
ratio of American Depositary Shares to Shares is subject to amendment as
provided in Article IV of this Deposit Agreement. The Depositary's Principal
Office is located at 111 Wall Street, New York, New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as of -,
1999 (as amended from time to time, the "Deposit Agreement"), by and among the
Company, the Depositary, and all Holders and Beneficial Owners from time to time
of American Depositary Shares ("ADSs") evidenced by Receipts issued thereunder,
each of whom by accepting an ADS (or an interest therein) agrees to become a
party thereto and becomes bound by all the terms and conditions thereof. The
Deposit Agreement sets forth the rights and obligations of Holders and
Beneficial Owners of 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
Principal Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Memorandum and
Articles of Association of the Company (as in effect on the date of the signing
of the Deposit Agreement) and are qualified by and subject to the detailed
provisions of the Deposit Agreement and the Memorandum and Articles of
Association, to which reference is hereby made. All capitalized terms used
herein which are not otherwise defined herein shall have the meanings ascribed
thereto in the Deposit Agreement. The Depositary makes no representation or
warranty as to the validity or worth of the Deposited Securities. The Depositary
has made arrangements for the acceptance of the ADSs into DTC. Each Beneficial
Owner of ADSs held through DTC must rely on the procedures of
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DTC and the DTC Participants to exercise and be entitled to any rights
attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
The Holder of this Receipt (and of the ADSs evidenced hereby) shall be
entitled to Delivery (at the Custodian's designated office) of the Deposited
Securities at the time represented by the ADS(s) evidenced hereby upon
satisfaction of each of the following conditions: (i) the Holder (or a duly
authorized attorney of the Holder) has duly Delivered to the Depositary at its
Principal Office the ADSs evidenced hereby (and, if applicable, this Receipt)
for the purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if so required by the Depositary, this Receipt has been properly endorsed
in blank or is accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) or entity(ies) designated in such order, and (iv) all
applicable fees and charges of, and expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B hereof) have been paid, subject, however, in each case, to the terms
and conditions of this Receipt, of the Deposit Agreement, of the Company's
Memorandum and Articles of Association and of any applicable laws and the rules
of the CDP, and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so cancelled together with any certificate or
other document of or relating to title for
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the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s) or
entity(ies) designated in the order delivered to the Depositary for such
purpose, subject however, in each case, to the terms and conditions of the
Deposit Agreement, of this Receipt, of the Memorandum and Articles of
Association of the Company, of applicable laws and of the rules of the CDP, and
to the terms and conditions of or governing the Deposited Securities, in each
case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of surrender of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance with the terms hereof, and shall,
at the discretion of the Depositary, either (i) return to the person or entity
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Shares represented by the
ADSs so surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person or entity surrendering the ADSs. Notwithstanding
anything else contained in this Receipt or the Deposit Agreement, the Depositary
may make delivery at the Principal Office of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of stock
or rights, which may at the time be held by the Depositary in respect of the
Deposited Securities represented by the ADSs evidenced by this Receipt. At the
request, risk and expense of any Holder surrendering ADSs represented by this
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward (to the extent permitted by law) any cash or other property
(other than securities) held by the Custodian in respect of the Deposited
Securities represented by such ADSs to the Depositary for delivery at the
Principal Office of the Depositary. Such direction shall be given by letter or,
at the request, risk and expense of such Holder, by cable, telex or facsimile
transmission.
(3) Transfer, Combination and Split-Up of Receipts. (a) Transfer. The
Registrar
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shall, without unreasonable delay, register the transfer of this Receipt (and of
the ADSs represented thereby) on the books maintained for such purpose and the
Depositary shall cancel this Receipt and execute new Receipts evidencing the
same aggregate number of ADSs as those evidenced by this Receipt when cancelled,
shall cause the Registrar to countersign such new Receipts, and shall Deliver
such new Receipts to or upon the order of the person or entity entitled thereto,
if each of the following conditions has been satisfied: (i) this Receipt has
been duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of effecting a
transfer thereof, (ii) this Receipt has been properly endorsed or is accompanied
by proper instruments of transfer (including signature guarantees in accordance
with standard securities industry practice), (iii) this Receipt has been duly
stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 and Exhibit B to the Deposit Agreement) have been paid, in
each case, however, subject to the terms and conditions of this Receipt, of the
Deposit Agreement and of applicable law, in each case as in effect at the time
thereof.
(b) Combination and Split-Up. The Registrar shall, without unreasonable
delay, register the split-up or combination of this Receipt (and of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary
shall cancel this Receipt and execute new Receipts for the number of ADSs
requested, but in the aggregate not exceeding the number of ADSs evidenced by
this Receipt (when cancelled), shall cause the Registrar to countersign such new
Receipts, and shall Deliver such new Receipts to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) this
Receipt has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a split-up or combination hereof, and (ii) all applicable fees and
charges of, and expenses incurred by, the Depositary and all applicable taxes
and government charges (as are set forth in Section 5.9 and Exhibit B to the
Deposit Agreement)
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have been paid, subject, however, in each case, to the terms and conditions of
this Receipt, of the Deposit Agreement and of applicable law, in each case, as
in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. 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 or the Custodian may require (i) payment from the
depositor of Shares or presenter of ADSs or of a 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, charge or fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the delivery of ADSs against
the deposit of particular Shares may be withheld, or the registration of
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 Company, Depositary, a Registrar or the
Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the Receipts or Share
are listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, Holders are entitled to surrender outstanding
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ADSs to withdraw the Deposited Securities at any time 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) other circumstances specifically contemplated by Section
I.A.(l) of the General Instructions to Form F-6 (as such General Instructions
may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to Singapore law, the rules and requirements of the Stock
Exchange of Singapore Limited, and of any stock exchange on which Shares or ADSs
are or will be registered, traded or listed, the rules and requirements of the
CDP or any other clearing system through which transactions in the Shares may be
settled or the Memorandum and Articles of Association of the Company, which are
made to provide information as to the capacity in which such Holder or
Beneficial Owner owns ADSs (and Shares, as the case may be) and regarding the
identity of any other persons then or previously interested in such ADSs and the
nature of such interest and various other matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request. The Depositary
agrees to use reasonable efforts to forward, upon the request of the Company,
any such requests to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
(6) Ownership Restrictions. The Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
under applicable law or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of ADSs where such transfer may result in the
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<PAGE> 74
total number of Shares represented by the ADSs owned by a single Holder or
Beneficial Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including but not
limited to the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or a mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Memorandum and Articles
of Association of the Company.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any tax
or other governmental charge shall become payable with respect to any Receipt or
any Deposited Securities or ADSs, such tax, or other governmental charge shall
be payable by the Holders and Beneficial Owners to the Depositary. The Company,
the Custodian and/or Depositary may withhold or deduct from any distributions
made in respect of Deposited Securities and may sell for the account of the
Holder and/or Beneficial Owner any or all of the Deposited Securities and apply
such distributions and sale proceeds in payment of such taxes (including
applicable interest and penalties) or charges, the Holder and the Beneficial
Owner hereof remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver
Receipts, register the transfer, split-up or combination of ADRs and (subject to
Article (24) hereof) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. Every Holder and
Beneficial Owner agrees to indemnify the Depositary, the Company, the Custodian
and any of their agents, employees and Affiliates for, and hold each of then
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person or entity
depositing
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Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares (and the certificates therefor) are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person or entity, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares, have been validly waived or exercised, (iii) the person
or entity making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim and are not, except as contemplated
in Section 2.12 herein, and the ADSs issuable upon such deposit will not be,
except as contemplated in Section 2.12 herein, Restricted Securities; and (v)
the Shares presented for deposit have not been stripped of any rights or
entitlements. Such representations and warranties shall survive the deposit and
withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof
and the transfer of such ADSs. If any such representations or warranties are
false in any way, the Company and Depositary shall be authorized, at the cost
and expense of the person or entity depositing Shares, to take any and all
actions necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person or
entity presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and 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, the Deposited
Securities, to execute such certifications and to make such representations and
warranties 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 appointed
agent of the Company for registration and transfer of Shares) as the Depositary
or the Custodian may deem reasonably necessary or proper or as the Company may
reasonably require by written
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request to the Depositary consistent with its obligations under the Deposit
Agreement. Subject to Article (24) hereof and the terms of the Deposit
Agreement, the Depositary and the Registrar, as applicable, may, and at the
reasonable request of the Company, shall, withhold the delivery or registration
of transfer of any Receipt or the distribution or sale of any dividend or other
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
information and documentation are provided, in each case to the Depositary's,
the Registrar's and the Company's reasonable satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement:
(i) to any person or entity to whom ADSs are issued upon the deposit
of Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraph (iii) and
(iv) below);
(ii) to any person or entity surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of U.S.
$ 5.00 per 100 ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $5.00 per 100
ADSs (or portion thereof) held for the distribution of stock or
other free distributions;
(iv) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or portion thereof) held for the distribution of cash
proceeds (i.e. upon the sale of rights and other entitlements);
and
(v) to any Holder of ADRs, a fee not in the excess of U.S. $ 5.00
per 100 ADSs (or portion thereof) issued upon the exercise of
rights.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be
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required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for
the registration of Shares or other Deposited Securities on the
share register and applicable to transfers of Shares or other
Deposited Securities to or from the name of the Custodian, the
Depositary or any nominees upon the making of deposits and
withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person or entity depositing or
withdrawing Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
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(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable on the same terms as a certificated security under the laws of the
State of New York, provided that the Receipt has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary may deem and treat the Holder of this Receipt (that is,
the person or entity in whose name this Receipt is registered on the books of
the Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or this Receipt to any holder of this
Receipt or any Beneficial Owner unless such holder is the Holder of this Receipt
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the Americana Depositary
Shares represented hereby) shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company unless this Receipt has been (i) dated, (ii) signed by
the manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
Receipts. Receipts bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such Receipt by the
Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at
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public reference facilities maintained by the Commission located at Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the Commission's
New York City office located at Seven World Trade Center, 13th Floor, New York,
New York 10048. The Depositary shall make available for inspection by Holders at
its Principal Office any reports and communications, including any proxy
soliciting materials, received from the Company which are both (a) received by
the Depositary, the Custodian, or the nominee of either of them as the holder of
the Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the Receipts,
at any time or from time to time, when deemed reasonably necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Article (24) hereof.
Dated: CITIBANK, N.A.,
as Depositary
Countersigned
By: By:
Authorized Representative Vice President
The address of the Principal Office of the Depositary is 111 Wall
Street, New York,
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New York 10043, U.S.A.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a Foreign Currency can, in the reasonable
judgment of the Depositary (upon the terms of the Deposit Agreement), be
converted on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such dividend, distribution or
proceeds into Dollars (upon the terms of the Deposit Agreement) and will
distribute promptly the amount thus received (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the Holders entitled thereto as of the ADS Record Date in proportion to the
number of ADS held as of the ADS Record Date. The Depositary shall distribute
only such amount, however, as can be distributed without attributing to any
Holder a fraction of one cent, and any balance not so distributed shall be held
by the Depositary (without liability for interest thereon) and shall be added to
and become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding. If the Company, the Custodian 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 Holders of the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company to the
relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free
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distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their nominees. Upon receipt of confirmation
of such deposit from the Custodian, the Depositary shall, subject to and in
accordance with the Deposit Agreement, establish the ADS Record Date and either
(i) distribute to the Holders as of the ADS Record Date in proportion to the
number of ADSs held as of the ADS Record Date, additional ADSs, which represent
in aggregate the number of Shares received as such dividend, or free
distribution, subject to the terms of the Deposit Agreement (including, without
limitation, (a) the applicable fees and charges of, and expenses incurred by,
the Depositary and (b) taxes), or (ii) if additional ADSs are not so
distributed, each ADS issued and outstanding after the ADS Record Date shall, to
the extent permissible by law, thenceforth also represent rights and interest in
the additional integral number of Shares distributed upon the Deposited
Securities represented thereby (net (a) of the applicable fees and charges of,
and the expenses incurred by, the Depositary, and (b) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable and the Depositary shall
distribute the net proceeds of any such sale (after deduction of (a) taxes and
fees and (b) charges of, and expenses incurred by, the Depositary) to Holders
entitled thereto upon the
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<PAGE> 83
terms of the Deposit Agreement. The Depositary shall hold and/or distribute any
unsold balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, to the extent permitted by law and subject to the terms and conditions of
the Deposit Agreement, distribute either (x) cash as in the case of a cash
distribution or (y) additional ADSs representing such additional Shares as in
the case of a distribution of Shares. In either case, the Depositary shall,
subject to the terms and conditions of the Deposit Agreement, establish and ADS
record date according to paragraph (16) and establish procedures to enable the
Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash, the
dividend shall be distributed as in the case of a distribution in cash. If the
Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be distributed as in the case of a distribution in Shares.
Nothing herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holder hereof a method to receive the elective distribution in
Shares (rather than ADSs). There can be no assurance that the Holder hereof will
be given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares (or any rights of any
other nature) to be made available to Holders of ADSs, the Depositary upon
consultation with the Company, shall determine, whether it is lawful and
reasonably practicable to make such rights available to the Holders. The
Depositary shall make such rights available to any Holders only if (i) the
Company shall have requested that such rights be made available to Holders, (ii)
the Depositary shall have received the documentation contemplated in the Deposit
Agreement, and (iii) the Depositary shall have
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<PAGE> 84
determined that such distribution of rights is reasonably practicable. If such
conditions are not satisfied, the Depositary shall sell the rights as described
below. In the event all conditions set forth above are satisfied, the Depositary
shall establish an ADS Record Date (upon the terms described in the Deposit
Agreement) and establish procedures to distribute rights to purchase additional
ADSs (by means of warrants or otherwise) and to enable the Holders to exercise
the rights (upon payment of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes). Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs).
If (i) the Company does not request the Depositary to make the rights
available to Holders or if the Company requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive the documentation
required by the Deposit Agreement or determines it is not reasonably practicable
to make the rights available to Holders, or (iii) any rights made available are
not exercised and appear to be about to lapse, the Depositary upon consultation
with the Company shall determine whether it is lawful and reasonably practicable
to sell such rights, in a riskless principal capacity, at such place and upon
such terms (including public and private sale) as it may deem proper. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable fees and charges of, and expenses incurred by, the Depositary
and taxes) upon the terms hereof and of the Deposit Agreement.
If the Depositary is unable to make any rights available to Holders or
to arrange for the sale of the rights upon the terms described above, the
Depositary shall allow such rights to lapse. Neither the Depositary nor the
Company shall be responsible for (i) any failure to determine that it may be
lawful or feasible to make such rights available to Holders in general or any
Holders in particular or (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise. The Depositary shall not be responsible
for the content of any materials forwarded to the ADR Holders on behalf of the
Company in connection with the rights distribution.
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<PAGE> 85
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders unless and until a registration statement
under the Securities Act (or other applicable law) covering such offering is in
effect. In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares, to be made to
Holders of ADSs, the Depositary shall determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have
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<PAGE> 86
reasonably determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall distribute as promptly as
practicable, the property so received to the Holders of record, as of the ADS
Record Date, in proportion to the number of ADSs held by them respectively and
in such manner as the Depositary may deem reasonably practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or a portion
of the property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem reasonably
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem reasonably proper and shall as
promptly as practicable (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) to the Holders upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to sell
such property, the Depositary, upon consultation with the Company, may dispose
of such property in any way it deems reasonably practicable under the
circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel (if requested by the
Depositary), and upon determining that such proposed redemption is practicable,
the Depositary shall (to the extent practicable) mail to each Holder a notice
setting forth the Company's intention to exercise the redemption rights and any
other particulars set forth in the Company's notice to the Depositary. Upon
receipt of confirmation that the redemption has taken place and that funds
representing the redemption price have been
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<PAGE> 87
received, the Depositary shall convert, transfer, distribute the proceeds (net
of applicable (a) fees and charges of, and expenses incurred by, the Depositary,
and (b) taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by
Holders thereof upon the terms of the Deposit Agreement. If less than all
outstanding Deposited Securities are redeemed, the ADSs to be retired will be
selected by lot or on a pro rata basis, as may be determined by the Depositary.
The redemption price per ADS shall be the dollar equivalent of per share amount
received by the Depositary upon the redemption of the Deposited Securities
represented by American Depositary Shares (subject to the terms of the Deposit
Agreement and the applicable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Units or Deposited Securities
represented by each ADS redeemed.
(16) Fixing of Record Date. Whenever the Depositary shall receive notice
of the fixing of a record date by the Company for the determination of holders
of Deposited Securities entitled to receive any distribution (whether in cash,
Shares, rights or other distribution), or whenever for any reason the Depositary
causes a change in the number of Shares that are represented by each ADS, or
whenever the Depositary shall receive notice of any meeting of, or solicitation
of consents or proxies of, holders of Shares or other Deposited Securities, or
whenever the Depositary shall find it necessary or convenient in connection with
the giving of any notice, or any other matter, the Depositary shall fix a record
date ("ADS Record Date") for the determination of the Holders of Receipts who
shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, or to give or withhold such
consent, or to receive such notice or solicitation or to otherwise take action,
or to exercise the rights of Holders with respect to such changed number of
Shares represented by each ADS. Subject to applicable law and the terms and
conditions of this Receipt and the Deposit Agreement, only the Holders of
Receipts at the close of business in New York on such ADS Record Date shall be
entitled to receive such distributions, to give such instructions, to receive
such notice or solicitation, or otherwise take action.
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(17) Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Shares are entitled to
vote, or of solicitation of consents or proxies from holders of Shares or other
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy. The Depositary shall (if
requested in writing in a timely manner by the Company and at the Company's
expense) as soon as practicable mail to Holders: (a) such notice of meeting or
solicitation of consent or proxies, (b) a statement that the Holders as of the
ADS Record Date will be entitled, subject to any applicable law, the Company's
Memorandum and Articles of Association and the provisions of or governing
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Shares or other Deposited Securities
represented by such Holder's ADS and (c) a brief statement as to the manner in
which such instructions may be given. Upon the timely receipt of written
instructions of a Holder of ADSs on the ADS Record Date, the Depositary shall
endeavor, insofar as reasonably practicable and permitted under applicable law
and the provisions of the Memorandum and Articles of Association of the Company
and the provisions of the Deposited Securities, to vote or cause the Custodian
to vote the Shares and/or other Deposited Securities represented by ADSs held by
such Holder in accordance with such instructions.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Shares or other
Deposited Securities represented by ADS except pursuant to and in accordance
with such written instructions from Holders. If voting instructions are received
by the Depositary from any Holder on or before the date established by the
Depositary for the receipt of such instructions, which are signed but without
further indication as to specific instructions, the Depositary will deem such
Holder to have instructed the Depositary to vote in
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<PAGE> 89
favor of the items set forth in such instructions. Shares or other Deposited
Securities represented by ADS for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted. There can be no
assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
or par value, split-up, stock split (either forward or reverse), cancellation,
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 the Custodian in exchange for, or in conversion of
or replacement of or otherwise in respect of, such Deposited Securities shall,
to the extent permitted by law, be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence ADSs representing the right to
receive such securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend or stock split, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts as in the case of a reverse stock split, and in
either case, with any necessary modifications to the form of Receipt contained
in this Exhibit A to the Deposit Agreement, to give effect to such corporate
change. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company's approval, and shall if the Company requests, subject to
receipt of satisfactory legal documentation contemplated in the Deposit
Agreement, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem reasonably 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
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<PAGE> 90
account of the Holders otherwise entitled to such securities and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to the Deposit Agreement. Neither the
Depositary nor the Company shall be responsible for (i) any failure to determine
that it may be lawful or feasible to make such securities available to Holders
in general or any Holder 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.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, Singapore or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or by reason
of any provision, present or future of the Memorandum and Articles of
Association of the Company or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, revolutions,
rebellions, explosions and computer failure), (ii) by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement or
in the Memorandum and Articles of Association of the Company or provisions of or
governing Deposited Securities, (iii) for any action or inaction in reliance
upon the advice of or information from legal counsel, accountants, any person or
entity presenting Shares for deposit, any Holder, any Beneficial Owner or
authorized representative thereof, or any other person or entity believed by it
in good faith to be competent to give such advice or information, (iv) for any
inability by a Holder 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 this Deposit
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<PAGE> 91
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of this Deposit Agreement.
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. No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement.
(20) Standard of Care. The Company and its agents assume no obligation
and shall not be subject to any liability under this Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in this Deposit Agreement without negligence or bad faith. The Depositary and
its agents assume no obligation and shall not be subject to any liability under
this Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform their
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith. The Depositary and its agents shall not be liable for any failure
to carry out any instructions to vote any of the Deposited Securities, or for
the manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. Neither the Depositary nor, to the extent permitted by
law, the Company, shall incur any liability for any failure to determine that
any distribution or action may be lawful or reasonably practicable, for any
investment risk associated with acquiring an interest in the Deposited
Securities, for the validity or worth of the Deposited Securities or for any tax
consequences that may result from the ownership of ADSs, Shares or Deposited
Securities, for the credit-worthiness of any third party, or for allowing any
rights to lapse upon the terms of this Deposit Agreement. The Depositary shall
not incur liability for the content of any information submitted to it by the
Company for distribution to the Holders or for any inaccuracy of any translation
thereof or for the failure or
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<PAGE> 92
timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) 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 written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. The predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
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<PAGE> 93
(22) Amendment/Supplement. This Receipt and any provisions of the
Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
Owners, shall not, however, become effective as to outstanding Receipts until
the expiration of 30 days after notice of such amendment or supplement shall
have been given to the Holders of outstanding Receipts. The parties hereto agree
that any amendments or supplements which (i) are reasonably necessary (as agreed
by the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Act or (b) the ADSs to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such ADS(s), to consent
and agree to such amendment or supplement and to be bound by the Deposit
Agreement as amended or supplemented thereby. In no event shall any amendment or
supplement impair the right of the Holder 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 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 Receipt at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such
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<PAGE> 94
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders 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, subject to the conditions and restrictions set
forth in the Deposit Agreement, 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
28
<PAGE> 95
exchange for Receipts surrendered to the Depositary (after deducting, or
charging, as the case may be, in each case the charges of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder in accordance
with the terms and conditions of the Deposit Agreement and any applicable taxes
or governmental charges or assessments). At any time after the expiration of six
months from the date of termination of the Deposit Agreement, the Depositary may
sell the Deposited Securities then held hereunder and may thereafter hold
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall be
discharged from all obligations under the Deposit Agreement with respect to the
Receipts and the Shares, the Deposited Securities and the ADSs, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case the charges of the Depositary for the surrender of
a Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of the Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (25), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. The Depositary may
issue ADSs against evidence of rights to receive Shares from the Company, any
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<PAGE> 96
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written blanket or
specific guarantees of ownership of Shares. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3 of the
Deposit Agreement and (ii) Deliver Shares prior to the receipt of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will
be (a) accompanied by or subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs or Shares are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under
such Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of
such Shares or ADSs in its records and to hold such Shares or ADSs in trust for
the Depositary until such Shares or ADSs are delivered to the Depositary or the
Custodian, (y) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs and (z) agrees to any additional
restrictions or requirements that the Depositary deems appropriate, (b) at all
times fully collateralized with cash, U.S. government securities 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 reasonably
appropriate. The Depositary will normally limit the number of ADSs and Shares
involved in such Pre-Release Transactions at any one time to thirty percent
(30%) of the ADSs outstanding (without giving effect to ADSs outstanding under
(i) above), provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as it deems appropriate. The
Depositary
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<PAGE> 97
may also set limits with respect to the number of ADSs and Shares involved in
Pre-Release Transactions with any one person on a case by case basis as it deems
appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant
to (b) above, but not earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
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<PAGE> 98
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated:
Name:_______________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within instrument
in every particular, without alteration or
enlargement or any change whatsoever.
If the endorsement be executed by an attorney,
executor, administrator, trustee or guardian,
the person executing the endorsement must give
his/her full title in such capacity and proper
evidence of authority to act in such capacity,
if not on file with the Depositary, must be
forwarded with this Receipt.
All endorsements or assignments of Receipts must
be guaranteed by a member of a Medallion
Signature Pro gram approved by the Securities
Transfer Association, Inc.
SIGNATURE GUARANTEED
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<PAGE> 99
LEGENDS
EACH RECEIPT ISSUED IN RESPECT OF PARTIAL ENTITLEMENT
AMERICAN DEPOSITARY SHARES SHALL BEAR THE FOLLOWING
LEGEND ON THE FACE OF THE RECEIPT: "THIS RECEIPT
EVIDENCES AMERICAN DEPOSITARY SHARES REPRESENTING
"PARTIAL ENTITLEMENT" ORDINARY SHARES OF CHARTERED
SEMICONDUCTOR MANUFACTURING LTD AND AS SUCH DO NOT
ENTITLE THE HOLDERS THEREOF TO THE SAME PER-SHARE
ENTITLEMENT AS OTHER ORDINARY SHARES (WHICH ARE "FULL
ENTITLEMENT" ORDINARY SHARES) ISSUED AND OUTSTANDING AT
SUCH TIME. THE AMERICAN DEPOSITARY SHARES REPRESENTED BY
THIS RECEIPT SHALL ENTITLE HOLDERS TO DISTRIBUTIONS AND
ENTITLEMENTS IDENTICAL TO OTHER AMERICAN DEPOSITARY
SHARES WHEN THE ORDINARY SHARES REPRESENTED BY SUCH
AMERICAN DEPOSITARY SHARES BECOME "FULL ENTITLEMENT"
ORDINARY SHARES."
EACH RESTRICTED ADR ISSUED IN RESPECT OF RESTRICTED
SHARES SHALL BEAR THE FOLLOWING LEGEND ON THE FACE OF
THE RESTRICTED ADR: "THIS CERTIFICATE REPRESENTS
"RESTRICTED ADSS" ISSUED UPON THE TERMS OF SECTION 2.12
OF THE DEPOSIT AGREEMENT (AS HEREINAFTER DEFINED). THIS
CERTIFICATE AND THE RESTRICTED ADSS REPRESENTED HEREBY
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNLESS
AN EXEMPTION FROM REGISTRATION UNDER SAID ACT IS
AVAILABLE FOR SUCH SALE OR TRANSFER."
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<PAGE> 100
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. DEPOSITARY FEES
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
<TABLE>
<CAPTION>
SERVICE RATE BY WHOM PAID
<S> <C> <C>
(1) Issuance of ADSs upon Up to $5.00 per 100 ADSs (or Person for whom deposits
deposit of Shares (excluding fraction thereof) issued. are made or party receiving
issuances contemplated by ADSs.
paragraphs (3) and (5) below).
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs
Securities, property and cash fraction thereof) surrendered. or making withdrawal.
against surrender of ADSs.
(3) Distribution of stock or Up to $5.00 per 100 ADSs (or Person to whom distribution
other free distributions. fraction thereof) held. is made.
(4) Distribution of cash Up to $2.00 per 100 ADSs (or Person to whom distribution
proceeds (i.e. upon sale of rights fraction thereof) held. is made.
and other entitlements).
(5) Distribution of ADSs Up to $5.00 per 100 ADSs (or Person to whom distribution
pursuant to exercise of rights. fraction thereof) issued. is made.
</TABLE>
II. CHARGES. Holders, Beneficial Owners, persons depositing Shares for deposit
and persons surrendering ADSs for cancellation and for the purpose of
withdrawing Deposited Securities shall be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
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<PAGE> 101
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of
the person depositing Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion of
foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary in connection with the
deliver of Deposited Securities.
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<PAGE> 1
Exhibit 5
[SASM&F Letterhead]
October 8, 1999
Citibank, N.A.
as Depositary
111 Wall Street
New York, New York 10043
U.S.A.
Re: American Depositary Shares
Representing Ordinary Shares of
Chartered Semiconductor Manufacturing Ltd
Ladies and Gentlemen:
We refer to the Registration Statement on Form F-6 (the
"Registration Statement") relating to American Depositary Shares ("ADSs")
evidenced by American Depositary Receipts ("ADRs") to be issued under the
Deposit Agreement (the form of which is set forth as an exhibit to the
Registration Statement) (the "Deposit Agreement") among Chartered Semiconductor
Manufacturing Ltd, a company incorporated under the laws of the Republic of
Singapore (the "Company"), Citibank, N.A., a national banking association
organized under the laws of the United States of America (the "Depositary"), and
all holders and beneficial owners from time to time of ADSs issued thereunder.
Each ADS represents ten (10) deposited ordinary registered shares of the
Company, par value S$0.26 each, including evidence of rights to receive such
shares ("Shares"). The Registration Statement is being signed and filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Securities Act"), by the Depositary on behalf of the legal entity created
by the Deposit Agreement.
In our capacity as counsel to the Depositary, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of such
documents, certificates and records as we have deemed necessary or appropriate
as a basis for the opinions set forth herein.
<PAGE> 2
Citibank, N.A.
October 8, 1999
Page 2
In our examination, we have assumed the legal capacity of all
natural persons, the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents. In making our
examination of executed documents, we have assumed that all parties thereto had
the power, corporate or other, to enter into and perform all obligations
thereunder and have also assumed the due authorization by all requisite action,
corporate or other, and execution and delivery by such parties of such documents
and the validity and binding effect thereof. As to any facts material to the
opinions expressed herein which were not independently established or verified,
we have relied upon oral or written statements and representations of officers
and other representatives of the Depositary and others.
Members of our firm are admitted to the Bar in the State of New
York. We do not express any opinion as to the laws of any other jurisdiction (or
as to the effect of the laws of any other jurisdiction on the opinions stated
herein), including the Republic of Singapore.
Based upon and subject to the foregoing, we are of the opinion
that upon due issuance, execution and delivery by the Depositary of ADSs against
the deposit of Shares in respect thereof, in accordance with the terms of the
Deposit Agreement, such ADSs will be legally issued and the holders and
beneficial owners thereof will be entitled to the rights of owners of ADSs
specified in the ADR evidencing such ADSs and in the Deposit Agreement.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement. In giving such consent, we do not thereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
