Filed pursuant to Rule 424(b)(3)
Registration Statement on Form F-6 Registration No. 333-116884
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$0.25)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
STATS ChipPAC 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$0.25, including
evidence of rights to receive such ordinary shares (the "Shares") of STATS
ChipPAC Ltd., a corporation incorporated under the laws of the Republic of
Singapore (the "Company"). As of the date of the Deposit Agreement (as
hereinafter defined), each ADS represents ten (10) Shares deposited under
the Deposit Agreement with the Custodian, which at the date of execution of the
Deposit Agreement is Citibank Nominees Singapore Pte Ltd (the "Custodian"). The
ratio of American Depositary Shares to Shares is subject to amendment as
provided in Article IV of the 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
February 8, 2000 (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
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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 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 of the Deposit Agreement) 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,
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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 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
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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 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
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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 governmental charges (as are set forth in Section 5.9 and Exhibit B to the
Deposit Agreement) 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
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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 Shares
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 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
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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 Singapore
Exchange Securities Trading 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 total number of Shares
represented by the ADSs owned by a single Holder or Beneficial Owner to exceed
any
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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
9
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 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 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
therein, and the ADSs issuable upon such deposit will not be, except as
contemplated in Section 2.12 therein, 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
10
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 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);
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(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 (a) cash
dividends or (b) ADSs pursuant to stock dividends (or other free
distributions of stock);
(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 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 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;
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(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.
(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
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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 American 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 public reference facilities maintained
by the Commission located at Judiciary Plaza, 450 Fifth Street,
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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
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The address of the Principal Office of the Depositary is 111 Wall Street,
New York, 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 ADSs 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
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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 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 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 interests
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
18
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 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, promptly 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 an ADS
Record Date according to Article (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
19
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 promptly 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 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
20
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.
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
21
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 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
22
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 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
23
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.
24
(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 ADSs except pursuant to and in accordance
with such written instructions from Holders. If voting instructions are received
by the Depositary from
25
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 ADSs 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 Exhibit A to the Deposit Agreement,
26
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
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,
27
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 the Deposit Agreement, made available
to Holders of ADSs or (v) for any consequential or punitive damages for any
breach of the terms of the 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 the 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 the Deposit Agreement without negligence or bad faith. The Depositary and its
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Depositary and its agents agree to perform
28
their obligations specifically set forth in the 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 the 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 the 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 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.
29
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.
(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,
30
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 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
31
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 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 exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case the charges of the Depositary
32
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,
33
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 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
34
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 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).
35
(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 Program approved by the
Securities Transfer Association, Inc.
SIGNATURE GUARANTEED
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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 STATS ChipPAC
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."
37