AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 dated as of
November , 2009 (the "Amendment") to the Deposit Agreement
dated as of September 20, 1999 (the "Deposit Agreement"), among DBS Group
Holdings Ltd., incorporated under the laws of Singapore (the "Company"),
JPMorgan Chase Bank, N.A. (fka ▇▇▇▇▇▇ Guaranty Trust Company of New York), as
depositary (the "Depositary"), and all holders from time to time of American
Depositary Receipts ("ADRs") issued thereunder.
W I T N E S S E T H:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR set forth in Exhibit A of the
Deposit Agreement, the Company and the Depositary desire to amend the terms of
the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION 1.01. Definitions. Unless
otherwise defined in this Amendment, all capitalized terms used but not
otherwise defined herein shall have the meaning given to such terms in the
Deposit Agreement, as amended hereby.
ARTICLE
II
AMENDMENTS TO DEPOSIT
AGREEMENT AND FORM OF ADR
SECTION 2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall, as of
the date hereof, refer to the Deposit Agreement as amended hereby.
SECTION 2.02. All
references in the Deposit Agreement and form of ADR to the Depositary shall be
references to JPMorgan Chase Bank, N.A. located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇ Facsimile: ▇▇▇-▇▇▇-▇▇▇▇. The notice
provision of Section 17 (a) of the Deposit Agreement is hereby amended to
reflect such address.
SECTION
2.03. Section 1(b) of the Deposit Agreement is amended to read
as follows:
(b) "ADRs"
mean the American Depositary Receipts executed and delivered hereunder. ADRs may
be either in physical certificated form or Direct Registration
ADRs. ADRs in physical certificated form, and the terms and
conditions governing the Direct Registration ADRs (as hereinafter defined),
shall be substantially in the form of Exhibit A annexed hereto (the "form of
ADR"). The term "Direct Registration ADR" means an ADR, the
ownership of which is recorded on the Direct Registration System. References to
"ADRs" shall include certificated ADRs and Direct Registration ADRs, unless the
context otherwise requires. The form of ADR is hereby incorporated herein and
made a part hereof; the provisions of the form of ADR shall be binding upon the
parties hereto.
SECTION
2.04. Section 1(e) of the Deposit Agreement is amended to read
as follows:
(e) The
terms "deliver", "execute", "issue", "register", "surrender", "transfer" or "cancel", when used
with respect to Direct Registration ADRs, shall refer to an entry or entries or
an electronic transfer or transfers in the Direct Registration System, and, when
used with respect to ADRs in physical certificated form, shall refer to the
physical delivery, execution, issuance, registration, surrender, transfer or
cancellation of certificates representing the ADRs.
2
SECTION
2.05. Section 1(h) of the Deposit Agreement is amended to read
as follows:
(h) "Direct Registration
System" means the system for the uncertificated registration of ownership
of securities established by The Depository Trust Company ("DTC") and utilized
by the Depositary pursuant to which the Depositary may record the ownership of
ADRs without the issuance of a certificate, which ownership shall be evidenced
by periodic statements issued by the Depositary to the Holders entitled thereto.
For purposes hereof, the Direct Registration System shall include access to the
Profile Modification System maintained by DTC which provides for automated
transfer of ownership between DTC and the Depositary.
SECTION
2.06. Section 3 of the Deposit Agreement is amended to include
the following at the conclusion thereof:
To the
extent that the provisions of or governing the Shares make delivery of
certificates therefor impracticable, Shares may be deposited hereunder by such
delivery thereof as the Depositary or the Custodian may reasonably accept,
including, without limitation, by causing them to be credited to an account
maintained by the Custodian for such purpose with the Company or an accredited
intermediary, such as a bank, acting as a registrar for the Shares, together
with delivery of the documents, payments and Delivery Order referred to herein
to the Custodian or the Depositary.
SECTION
2.07. Section 6 of the Deposit Agreement is amended by
inserting the following immediately after the word "practicable" in the last
sentence thereof:
,
including, without limitation, by transfer of record ownership thereof to an
account designated in the Withdrawal Order maintained either by the Company or
an accredited intermediary, such as a bank, acting as a registrar for the
Deposited Securities
SECTION
2.08. Section 16 of the Deposit Agreement is amended to
include the following:
Notwithstanding
any other provision of this Deposit Agreement or the ADRs to the contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other for any indirect, special, punitive or consequential damages
(collectively "Special Damages") except (i) to the extent such Special Damages
arise from the gross negligence or willful misconduct of the party from whom
indemnification is sought or (ii) to the extent Special Damages arise from or
out of a claim brought by a third party (including, without limitation, Holders)
against the Depositary or its agents, except to the extent such Special Damages
arise out of the gross negligence or willful misconduct of the party seeking
indemnification hereunder
3
SECTION 2.09. The
following is inserted as new Section 19 of the Deposit Agreement:
19. Consent to
Jurisdiction. The Company irrevocably agrees that any legal
suit, action or proceeding against the Company brought by the Depositary or any
Holder, arising out of or based upon this Deposit Agreement or the transactions
contemplated hereby, may be instituted in any state or federal court in New
York, New York, and irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Company also irrevocably agrees that any legal suit,
action or proceeding against the Depositary brought by the Company, arising out
of or based upon this Deposit Agreement or the transactions contemplated hereby,
may only be instituted in a state or federal court in New York, New York. The
Company has appointed DBS ▇▇▇▇▇▇▇ Securities (USA), Inc, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇, as its authorized agent (the "Authorized Agent")
upon which process may be served in any such action arising out of or based on
this Deposit Agreement or the transactions contemplated hereby which may be
instituted in any state or federal court in New York, New York by the Depositary
or any Holder, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. The Company represents and
warrants that the Authorized Agent has agreed to act as said agent for service
of process, and the Company agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent and written notice of such service to the
Company shall be deemed, in every respect, effective service of process upon the
Company. If, for any reason, the Authorized Agent named above or its successor
shall no longer serve as agent of the Company to receive service of process in
New York, the Company shall promptly appoint a successor acceptable to the
Depositary, so as to serve and will promptly advise the Depositary
thereof. In the event the Company fails to continue such designation
and appointment in full force and effect, the Company hereby waives personal
service of process upon it and consents that any such service of process may be
made by certified or registered mail, return receipt requested, directed to the
Company at its address last specified for notices hereunder, and service so made
shall be deemed completed seven (7) days after the same shall have been so
mailed. Notwithstanding the foregoing, any action based on this
Deposit Agreement may be instituted by the Depositary or any Holder in any
competent court in Singapore.
4
To the
extent that the Company or any of its properties, assets or revenues may have or
may hereafter be entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, 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, or from execution of judgment, or other legal process or proceeding
for the giving of any relief or for the enforcement of any judgment, in any
jurisdiction in which proceedings may at any time be commenced, with respect to
its obligations, liabilities or other matter under or arising out of or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or this
Deposit Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
EACH
PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
5
SECTION
2.10. Paragraph (1) of the form of ADR is amended to read as
follows:
(1) Issuance of
ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit of: (a) Shares in form satisfactory to the Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash, government
securities or such other collateral as the Depositary deems appropriate held by
the Depositary for the benefit of Holders (but such collateral shall not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
represents and agrees in writing with the Depositary that such recipient or its
customer (a) beneficially owns such Shares, (b) assigns all beneficial right,
title and interest therein to the Depositary, (c) holds such Shares for the
account of the Depositary and (d) will deliver such Shares to the Custodian as
soon as practicable and promptly upon demand therefor and (iii) all Pre-released
ADRs evidence not more than 30% of all ADSs (excluding those evidenced by
Pre-released ADRs), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may retain for its own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its office. Every person
depositing Shares under the Deposit Agreement represents and warrants that such
Shares are validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933 ("Restricted Securities")
unless at the time of deposit the requirements of paragraphs (c), (e), (f) and
(h) of Rule 144 shall not apply and such Shares may be freely transferred and
may otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. To the extent the person depositing
Shares is an Aaffiliate@ of
the Company as such term is defined in Rule 144, the person also represents and
warrants that upon the sale of the ADSs, all of the provisions of Rule 144 which
enable the Shares to be freely sold (in the form of ADSs) will be fully complied
with and, as a result thereof, all of the ADSs issued in respect of such Shares
will not be on the sale thereof, Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
of ADRs. The Depositary will not knowingly accept for deposit under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance with such Act.
6
SECTION 2.11. The
first sentence of Paragraph (2) of the form of ADR is amended to read as
follows;
Subject
to paragraphs (4) and (5), upon surrender of (i) a certificated ADR in form
satisfactory to the Depositary at the Transfer Office or (ii) proper
instructions and documentation in the case of a Direct Registration ADR, the
Holder hereof is entitled to delivery at, or to the extent in dematerialized
form from, the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR.
SECTION
2.12. Paragraph (5) of the form of ADR is amended to include
the following at the conclusion thereof:
Each
Holder of an ADR or an interest therein agrees to 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.
SECTION
2.13. Paragraph (7) of the form of ADR is amended to include
the following immediately after the second sentence thereof:
The
following additional charges shall be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering ADSs, to whom ADSs
are issued (including, without limitation, issuance pursuant to a stock dividend
or stock split declared by the Company or an exchange of stock regarding the
ADSs or the Deposited Securities or a distribution of ADSs pursuant to paragraph
(10)), whichever is applicable (i) a fee of U.S.$0.05 or less per ADS for any
Cash distribution made pursuant to the Deposit Agreement, (ii) a fee of
U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution or sale of securities pursuant to paragraph
(10) hereof, such fee being in an amount equal to the fee for the execution and
delivery of ADSs referred to above which would have been charged as a result of
the deposit of such securities (for purposes of this paragraph (7) treating all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary to
Holders entitled thereto, (iv) an aggregate fee of
U.S.$0.05 or less per ADS per calendar year (or portion thereof) for services
performed by the Depositary in administering the ADRs (which fee may be charged
on a periodic basis during each calendar year and shall be assessed against
Holders as of the record date or record dates set by the Depositary during each
calendar year and shall be payable at the sole discretion of the Depositary by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions); provided, however that the aggregate of the fees
charged in any given calendar year under this (iv) when combined with fees
collected under (i) of this paragraph above on the payment of dividends declared
by the Company shall not exceed $0.05 per ADS per calendar year, and (v)
reimbursement of such fees, charges and expenses as are incurred by the
Depositary and/or any of the Depositary's agents (including, without limitation,
the Custodian and expenses incurred on behalf of Holders in connection with
compliance with foreign exchange control regulations or any law or regulation
relating to foreign investment) in connection with the servicing of the Shares
or other Deposited Securities, the delivery of Deposited Securities or otherwise
in connection with the Depositary's or its Custodian's compliance with
applicable law, rule or regulation (which charge shall be assessed on a
proportionate basis against Holders as of the record date or dates set by the
depositary and shall be payable at the sole discretion of the Depositary by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions).
7
SECTION 2.14. The
third and fourth sentences of Paragraph (8) of the form of ADR are amended to
read as follows:
The
Company publishes information in English required to maintain the exemption from
registration under Rule 12g3-2(b) under the Securities Exchange Act of 1934 on
its Internet Web site (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/) or through an electronic
information delivery system generally available to the public in its primary
trading market. The Depositary does not assume any duty to determine if the
Company is complying with the current requirements of Rule 12g3-2(b)
under the Securities Exchange Act of 1934 or to take any action if the Company
is not complying with those requirements.
SECTION
2.15. Paragraph (11) of the form of ADR is amended to read as
follows:
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for in paragraph
(7) hereof as well as for the determination of the Holders who shall be entitled
to receive any distribution on or in respect of Deposited Securities, to give
instructions for the exercise of any voting rights, to receive any notice or to
act in respect of other matters and only such Holders shall be so entitled or
obligated.
8
SECTION
2.16. Paragraph (12) of the form of ADR is amended to include
the following at the conclusion thereof:
There is
no guarantee that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable such Holder to return any
voting instructions to the Depositary in a timely manner.
SECTION
2.17. Paragraph (14) of the form of ADR is amended to read as
follows:
(14) Exoneration. The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if any present or future law, rule, regulation, fiat, order or
decree of the United States, Singapore or any other country, or of
any governmental or regulatory authority or any securities exchange or market or
automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act of
God, war, terrorism or other circumstance beyond its control shall prevent,
delay or subject to any civil or criminal penalty any act which the Deposit
Agreement or this ADR provides shall be done or performed by it or them
(including, without limitation, voting pursuant to paragraph (12) hereof), or
(ii) by reason of any exercise or failure to exercise any discretion given it in
the Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary shall not be liable for
the acts or omissions made by any securities depository, clearing agency or
settlement system in Singapore in connection with or arising out of book-entry
settlement of Deposited Securities or otherwise. The Depositary, its agents
and the Company may rely and shall be protected in acting upon any written
notice, request, direction or other document believed by them to be genuine and
to have been signed or presented by the proper party or parties. The
Depositary and its agents will not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, for the manner in
which any such vote is cast or for the effect of any such vote. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in ADRs. Notwithstanding anything to the contrary
set forth in the Deposit Agreement or an ADR, the Depositary and its agents may
fully respond to any and all demands or requests for information maintained by
or on its behalf in connection with the Deposit Agreement, any Holder or
Holders, any ADR or ADRs or otherwise related hereto to the extent such
information is requested or required by or pursuant to any lawful authority,
including without limitation laws, rules, regulations, administrative or
judicial process, banking, securities or other regulators. None of the
Depositary, the Custodian or the Company shall be liable for the failure by any
Holder or beneficial owner to obtain the benefits of credits on the basis of
non-U.S. tax paid against such Holder=s
or beneficial owner=s
income tax liability. The Depositary and the Company shall not incur any
liability for any tax consequences that may be incurred by Holders and
beneficial owners on account of their ownership of the ADRs or
ADSs. The Company has agreed to indemnify the Depositary
and its agents under certain circumstances and the Depositary has agreed to
indemnify the Company under certain circumstances. Neither the
Company nor the Depositary nor any of their respective agents shall be liable to
Holders or beneficial owners of interests in ADSs for any indirect, special,
punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
9
SECTION 2.18. The
form of ADR is amended to include the following as Paragraphs (18 ) and (19)
thereof:
(18)
Appointment. Each
Holder and each person holding an interest in ADSs, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and the applicable ADR(s), 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 the Deposit
Agreement and the applicable ADR(s), 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
the Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness
thereof.
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(19)
Waiver. EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
SECTION 2.19. The
form of ADR, reflecting the amendments set forth herein and some
clarifying amendments thereto is amended and restated to read as set forth as
Exhibit A hereto.
ARTICLE
III
REPRESENTATIONS AND
WARRANTIES
SECTION 3.01. Representations
and Warranties of the Company. The Company represents
and warrants to, and agrees with, the Depositary and the Holders,
that:
(a) This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and the Form F-6 as executed and delivered by the Company in connection
herewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to applicable bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b) In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement, and any other document
furnished hereunder or thereunder in Singapore, neither of such agreements needs
to be filed or recorded with any court or other authority in Singapore, nor does
any stamp or similar tax need to be paid in Singapore on or in respect of such
agreements; and
(c)
All
of the information provided to the Depositary by the Company in connection with
this Amendment is true, accurate and correct.
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ARTICLE
IV
MISCELLANEOUS
SECTION 4.01. Effective
Date. This Amendment is dated as of the date set forth above
and shall be effective on the date hereof, provided the changes set forth in
Section 2.13 hereof shall not become effective until thirty days after notice
thereof has been provided to the Holders.
SECTION 4.02. Indemnification. The
parties hereto shall be entitled to all of the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement in connection with any and all
liability it or they may incur as a result of the terms of this Amendment and
the transactions contemplated herein.
SECTION 4.03. Governing
Law; Jurisdiction. This Amendment
and all outstanding and hereinafter issued ADRs shall be governed by
and construed in accordance with the laws of the State of New
York. Any dispute, legal suit, action or proceeding arising out of or
based upon the Deposit Agreement (as amended by the Amendment) or the
transactions contemplated thereby shall be submitted to the exclusive
jurisdiction of the Courts of New York, New York.
SECTION 4.04. Outstanding
ADRs. ADRs issued prior or subsequent to the date
hereof, which do not reflect the changes to the form of ADR effected hereby, do
not need to be called in for exchange and may remain outstanding until such time
as the Holders thereof choose to surrender them for any reason under the Deposit
Agreement. The Depositary is authorized and directed to take any and
all actions deemed necessary to effect the foregoing.
SECTION 4.05. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original and all of which together shall constitute one
instrument.
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IN WITNESS WHEREOF, the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth above and all
Holders shall become parties hereto by holding ADSs
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DBS
GROUP HOLDINGS LTD.
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By:
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| Name: | |||
| Title: | |||
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JPMORGAN CHASE BANK, N.A.
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By:
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| Name: | |||
| Title: | |||
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EXHIBIT
A
ANNEXED
TO AND INCORPORATED
IN AMENDMENT NO. 1 TO
DEPOSIT AGREEMENT
[FORM OF
FACE OF ADR]
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______
Number
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No.
of
ADSs:
|
|
Each
ADS represents
Four
Shares
CUSIP:
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AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
DBS GROUP
HOLDINGS LTD.
(Incorporated
under the
laws of
the Republic of Singapore)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of the
United States, as depositary hereunder (the "Depositary"), hereby certifies that
is the registered owner (a "Holder") of
American Depositary Shares ("ADSs"), each (subject to paragraph
(13)) representing four (4) ordinary shares (including the rights to receive
Shares described in paragraph (1), "Shares" and, together with any other
securities, cash or property from time to time held by the Depositary in respect
or in lieu of deposited Shares, the "Deposited Securities"), of DBS Group
Holdings Ltd., a corporation organized under the laws of the Republic of
Singapore (the "Company"), deposited under the Deposit Agreement dated as of
September 20, 1999 (as amended from time to time, the "Deposit Agreement") among
the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder ("ADRs"), each of whom by accepting an ADR
becomes a party thereto. The Deposit Agreement and this ADR (which
includes the provisions set forth on the reverse hereof) shall be governed by
and construed in accordance with the laws of the State of New York.
A-1
(1) Issuance of
ADRs. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so
issue ADRs for delivery at the Transfer Office (defined in paragraph (3)) only
against deposit of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash, government
securities or such other collateral as the Depositary deems appropriate held by
the Depositary for the benefit of Holders (but such collateral shall not
constitute "Deposited Securities"), (ii) each recipient of Pre-released ADRs
represents and agrees in writing with the Depositary that such recipient or its
customer (a) beneficially owns such Shares, (b) assigns all beneficial right,
title and interest therein to the Depositary, (c) holds such Shares for the
account of the Depositary and (d) will deliver such Shares to the Custodian as
soon as practicable and promptly upon demand therefor and (iii) all Pre-released
ADRs evidence not more than 30% of all ADSs (excluding those evidenced by
Pre-released ADRs), provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary may retain for its own
account any earnings on collateral for Pre-released ADRs and its charges for
issuance thereof. At the request, risk and expense of the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may deliver ADRs at a place other than its office. Every person
depositing Shares under the Deposit Agreement represents and warrants that such
Shares are validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933 ("Restricted Securities")
unless at the time of deposit the requirements of paragraphs (c), (e), (f) and
(h) of Rule 144 shall not apply and such Shares may be freely transferred and
may otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. To the extent the person depositing
Shares is an Aaffiliate@ of
the Company as such term is defined in Rule 144, the person also represents and
warrants that upon the sale of the ADSs, all of the provisions of Rule 144 which
enable the Shares to be freely sold (in the form of ADSs) will be fully complied
with and, as a result thereof, all of the ADSs issued in respect of such Shares
will not be on the sale thereof, Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
of ADRs. The Depositary will not knowingly accept for deposit under
the Deposit Agreement any Shares required to be registered under the Securities
Act of 1933 and not so registered; the Depositary may refuse to accept for such
deposit any Shares identified by the Company in order to facilitate the
Company's compliance with such Act.
(2) Withdrawal of Deposited
Securities. Subject to paragraphs (4) and (5), upon surrender
of (i) a certificated ADR in form satisfactory to the Depositary at the Transfer
Office or (ii) proper instructions and documentation in the case of a Direct
Registration ADR, the Holder hereof is entitled to delivery at, or to the extent
in dematerialized form from, the Custodian's office of the Deposited Securities
at the time represented by the ADSs evidenced by this
ADR. At the request, risk and expense of the Holder
hereof, the Depositary may deliver such Deposited Securities at such other place
as may have been requested by the Holder. Notwithstanding any other
provision of the Deposit Agreement or this ADR, the withdrawal of Deposited
Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from time
to time) under the Securities Act of 1933.
A-2
(3) Transfers of
ADRs. The Depositary or its agent will keep, at a designated
transfer office in the Borough of Manhattan, The City of New York (the "Transfer
Office"), (a) a register (the "ADR Register") for the registration, registration
of transfer, combination and split-up of ADRs, and, in the case of Direct
Registration ADRs, shall include the Direct Registration System, which at all
reasonable times will be open for inspection by Holders and the Company for the
purpose of communicating with Holders in the interest of the business of the
Company or a matter relating to the Deposit Agreement and (b) facilities for the
delivery and receipt of ADRs. The term ADR Register includes the Direct
Registration System. Title to this ADR (and to the Deposited
Securities represented by the ADSs evidenced hereby), when properly endorsed in
the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of negotiable instruments under the laws of the State of New
York; provided
that the Depositary, notwithstanding any notice to the contrary, may treat the
person in whose name this ADR is registered on the ADR Register as the absolute
owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer and duly stamped as may be required by applicable
law; provided
that the Depositary may close the ADR Register at any time or from time to time
when deemed expedient by it or requested by the Company. At the
request of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain
Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any
stock transfer or other tax or other governmental charge, (ii) any stock
transfer or registration fees in effect for the registration of transfers of
Shares or other Deposited Securities upon any applicable register and (iii) any
applicable charges as provided in paragraph (7) of this ADR; (b) the production
of proof satisfactory to it of (i) the identity and genuineness of any signature
and (ii) such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit
Agreement. The issuance of ADRs, the acceptance of deposits of
Shares, the registration, registration of transfer, split-up or combination of
ADRs or, subject to the last sentence of paragraph (2), the withdrawal of
Deposited Securities may be suspended, generally or in particular instances,
when the ADR Register or any register for Deposited Securities is closed or when
any such action is deemed advisable by the Depositary or the
Company.
A-3
(5) Taxes. If
any tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by the ADSs evidenced hereby or any distribution thereon, such tax
or other governmental charge shall be paid by the Holder hereof to the
Depositary. The Depositary may refuse to effect any registration,
registration of transfer, split-up or combination hereof or, subject to the last
sentence of paragraph (2), any withdrawal of such Deposited Securities until
such payment is made. The Depositary may also deduct from any
distributions on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder
hereof prior to such sale), and may apply such deduction or the proceeds of any
such sale in payment of such tax or other governmental charge, the Holder hereof
remaining liable for any deficiency, and shall reduce the number of ADSs
evidenced hereby to reflect any such sales of Shares. In connection
with any distribution to Holders, the Company will remit to the appropriate
governmental authority or agency all amounts (if any) required to be withheld
and owing to such authority or agency by the Company; and the Depositary and the
Custodian will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or agency
by the Depositary or the Custodian. If the Depositary determines that
any distribution in property other than cash (including Shares or rights) on
Deposited Securities is subject to any tax that the Depositary or the Custodian
is obligated to withhold, the Depositary may dispose of all or a portion of such
property in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto. Each
Holder of an ADR or an interest therein agrees to 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.
(6) Disclosure of
Interests. To the extent that the provisions of or governing
any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and other
securities and may provide for blocking transfer, voting or other rights to
enforce such disclosure or limits, Holders and all persons holding ADRs agree to
comply with all such disclosure requirements and ownership limitations and to
cooperate with the Depositary in the Depositary's compliance with any Company
instructions in respect thereof, and the Depositary will use reasonable efforts
to comply with such Company instructions.
A-4
(7) Charges of
Depositary. The Depositary may charge each person to whom ADRs
are issued against deposits of Shares, including deposits in respect of Share
Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), and each person surrendering ADRs for withdrawal of Deposited
Securities, U.S. $5.00 for each 100 ADSs (or portion thereof) evidenced by the
ADRs delivered or surrendered. The Depositary may sell (by public or private
sale) sufficient securities and property received in respect of Share
Distributions, Rights and Other Distributions prior to such deposit to pay such
charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADSs, to whom ADSs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i) a
fee of U.S.$0.05 or less per ADS for any Cash distribution made pursuant to the
Deposit Agreement, (ii) a fee of U.S.$1.50 per ADR or ADRs for transfers made
pursuant to paragraph (3) hereof, (iii) a fee for the distribution or sale of
securities pursuant to paragraph (10) hereof, such fee being in an amount equal
to the fee for the execution and delivery of ADSs referred to above which would
have been charged as a result of the deposit of such securities (for purposes of
this paragraph (7) treating all such securities as if they were Shares) but
which securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Holders entitled thereto, (iv) an aggregate fee of
U.S.$0.05 or less per ADS per calendar year (or portion thereof) for services
performed by the Depositary in administering the ADRs (which fee may be charged
on a periodic basis during each calendar year and shall be assessed against
Holders as of the record date or record dates set by the Depositary during each
calendar year and shall be payable at the sole discretion of the Depositary by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions); provided, however that the aggregate of the fees
charged in any given calendar year under this (iv) when combined with fees
collected under (i) of this paragraph above on the payment of dividends declared
by the Company shall not exceed $0.05 per ADS per calendar year, and (v)
reimbursement of such fees, charges and expenses as are incurred by the
Depositary and/or any of the Depositary's agents (including, without limitation,
the Custodian and expenses incurred on behalf of Holders in connection with
compliance with foreign exchange control regulations or any law or regulation
relating to foreign investment) in connection with the servicing of the Shares
or other Deposited Securities, the delivery of Deposited Securities or otherwise
in connection with the Depositary's or its Custodian's compliance with
applicable law, rule or regulation (which charge shall be assessed on a
proportionate basis against Holders as of the record date or dates set by the
depositary and shall be payable at the sole discretion of the Depositary by
billing such Holders or by deducting such charge from one or more cash dividends
or other cash distributions). The Company will pay all other charges
and expenses of the Depositary and any agent of the Depositary (except the
Custodian) pursuant to agreements from time to time between the Company and the
Depositary, except (i) stock transfer or other taxes and other governmental
charges (which are payable by Holders or persons depositing Shares), (ii) cable,
telex and facsimile transmission and delivery charges incurred at the request of
persons depositing Shares, or Holders delivering Shares, ADRs or Deposited
Securities (which are payable by such persons or Holders), (iii) transfer or
registration fees for the registration of transfer of Deposited Securities on
any applicable register in connection with the deposit or withdrawal of
Deposited Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited Securities; there are no such fees in respect of the
Shares as of the date of the Deposit Agreement) and (iv) expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency). These
charges may be changed in the manner indicated in paragraph (16).
A-5
(8) Available
Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The Depositary will mail copies
of such communications (or English translations or summaries thereof) to Holders
when furnished by the Company. The Company publishes information in
English required to maintain the exemption from registration under Rule
12g3-2(b) under the Securities Exchange Act of 1934 on its Internet Web site
(▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/) or through an electronic information delivery system
generally available to the public in its primary trading market. The Depositary
does not assume any duty to determine if the Company is complying
with the current requirements of Rule 12g3-2(b) under the Securities Exchange
Act of 1934 or to take any action if the Company is not complying with those
requirements.
(9) Execution. This
ADR shall not be valid for any purpose unless executed by the Depositary by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
| Dated: |
JPMORGAN
CHASE BANK, N.A., as Depositary
|
||
| By | |||
The
Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-6
[FORM OF
REVERSE OF ADR]
(10) Distributions on Deposited
Securities. Subject to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute by mail to each Holder entitled
thereto on the record date set by the Depositary therefor at such Holder's
address shown on the ADR Register, in proportion to the number of Deposited
Securities (on which the following distributions on Deposited Securities are
received by the Custodian) represented by ADSs evidenced by such Holder's
ADRs: (a) Cash. Any
U.S. dollars available to the Depositary resulting from a cash dividend or other
cash distribution or the net proceeds of sales of any other distribution or
portion thereof authorized in this paragraph (10) ("Cash"), on an averaged or
other practicable basis, subject to (i) appropriate adjustments for taxes
withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary's expenses in
(1) converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines that
such conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made on
a reasonable basis, (3) obtaining any approval or license of any governmental
authority required for such conversion or transfer, which is obtainable at a
reasonable cost and within a reasonable time and (4) making any sale by public
or private means in any commercially reasonable manner. (b) Shares. (i)
Additional ADRs evidencing whole ADSs representing any Shares available to the
Depositary resulting from a dividend or free distribution on Deposited
Securities consisting of Shares (a "Share Distribution") and (ii) U.S. dollars
available to it resulting from the net proceeds of sales of Shares received in a
Share Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights. (i)
Warrants or other instruments in the discretion of the Depositary representing
rights to acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent that
the Company timely furnishes to the Depositary evidence satisfactory to the
Depositary that the Depositary may lawfully distribute the same (the Company has
no obligation to so furnish such evidence), or (ii) to the extent the Company
does not so furnish such evidence and sales of Rights are practicable, any U.S.
dollars available to the Depositary from the net proceeds of sales of Rights as
in the case of Cash, or (iii) to the extent the Company does not so furnish such
evidence and such sales cannot practicably be accomplished by reason of the
nontransferability of the Rights, limited markets therefor, their short duration
or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions. (i) Securities or property available to the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions and Rights ("Other Distributions"), by any
means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales of
Other Distributions as in the case of Cash. Such U.S. dollars
available will be distributed by checks drawn on a bank in the United States for
whole dollars and cents (any fractional cents being withheld without liability
for interest and added to future Cash distributions).
A-7
(11) Record
Dates. The Depositary may, after consultation with the Company
if practicable, fix a record date (which, to the extent applicable, shall be as
near as practicable to any corresponding record date set by the Company) for the
determination of the Holders who shall be responsible for the fee assessed by
the Depositary for administration of the ADR program and for any expenses
provided for in paragraph (7) hereof as well as for the determination of the
Holders who shall be entitled to receive any distribution on or in respect of
Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled or obligated.
(12) Voting of Deposited
Securities. As soon as practicable after receipt from the
Company of notice of any meeting or solicitation of consents or proxies of
holders of Shares or other Deposited Securities, the Depositary shall mail to
Holders a notice stating (a) such information as is contained in such notice and
any solicitation materials, (b) that each Holder on the record date set by the
Depositary therefor will be entitled to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and (c) the manner in
which such instructions may be given, including instructions to give a
discretionary proxy to a person designated by the Company. Upon
receipt of instructions of a Holder on such record date in the manner and on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any
voting discretion in respect of any Deposited Securities. There is no
guarantee that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable such Holder to return any
voting instructions to the Depositary in a timely manner.
(13) Changes Affecting Deposited
Securities. Subject to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended ADRs
(with or without calling this ADR for exchange) or cash, securities or property
on the record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby
authorized to surrender any Deposited Securities to any person and to sell by
public or private sale any property received in connection with) any
recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
A-8
(14) Exoneration. The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if any present or future law, rule, regulation, fiat, order or
decree of the United States, Singapore or any other country, or of
any governmental or regulatory authority or any securities exchange or market or
automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act of
God, war, terrorism or other circumstance beyond its control shall prevent,
delay or subject to any civil or criminal penalty any act which the Deposit
Agreement or this ADR provides shall be done or performed by it or them
(including, without limitation, voting pursuant to paragraph (12) hereof), or
(ii) by reason of any exercise or failure to exercise any discretion given it in
the Deposit Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding in respect of any Deposited Securities or this ADR, which in
its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary shall not be liable for
the acts or omissions made by any securities depository, clearing agency or
settlement system in Singapore in connection with or arising out of book-entry
settlement of Deposited Securities or otherwise. The Depositary, its agents
and the Company may rely and shall be protected in acting upon any written
notice, request, direction or other document believed by them to be genuine and
to have been signed or presented by the proper party or parties. The
Depositary and its agents will not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, for the manner in
which any such vote is cast or for the effect of any such vote. The
Depositary and its agents may own and deal in any class of securities of the
Company and its affiliates and in ADRs. Notwithstanding anything to the contrary
set forth in the Deposit Agreement or an ADR, the Depositary and its agents may
fully respond to any and all demands or requests for information maintained by
or on its behalf in connection with the Deposit Agreement, any Holder or
Holders, any ADR or ADRs or otherwise related hereto to the extent such
information is requested or required by or pursuant to any lawful authority,
including without limitation laws, rules, regulations, administrative or
judicial process, banking, securities or other regulators. None of the
Depositary, the Custodian or the Company shall be liable for the failure by any
Holder or beneficial owner to obtain the benefits of credits on the basis of
non-U.S. tax paid against such Holder=s
or beneficial owner=s
income tax liability. The Depositary and the Company shall not incur any
liability for any tax consequences that may be incurred by Holders and
beneficial owners on account of their ownership of the ADRs or
ADSs. The Company has agreed to indemnify the Depositary
and its agents under certain circumstances and the Depositary has agreed to
indemnify the Company under certain circumstances. Neither the
Company nor the Depositary nor any of their respective agents shall be liable to
Holders or beneficial owners of interests in ADSs for any indirect, special,
punitive or consequential damages. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision hereof.
A-9
(15) Resignation and Removal of
Depositary; the Custodian. The Depositary may resign as Depositary by
written notice of its election to do so delivered to the Company, or be removed
as Depositary by the Company by written notice of such removal delivered to the
Depositary; such resignation or removal shall take effect upon the appointment
of and acceptance by a successor depositary. The Depositary may
appoint substitute or additional Custodians and the term "Custodian" refers to
each Custodian or all Custodians as the context requires.
(16) Amendment. Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement may be
amended by the Company and the Depositary, provided that any
amendment that imposes or increases any fees or charges (other than stock
transfer or other taxes and other governmental charges, transfer or registration
fees, cable, telex or facsimile transmission costs, delivery costs or other such
expenses), or that shall otherwise prejudice any substantial existing right of
Holders, shall become effective 30 days after notice of such amendment shall
have been given to the Holders. Every Holder of an ADR at the time
any amendment to the Deposit Agreement so becomes effective shall be deemed, by
continuing to hold such ADR, to consent and agree to such amendment and to be
bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. 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 of 1933 or (b) the ADSs or Shares 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
prejudice any substantial rights of Holders. Notwithstanding
the foregoing, if any governmental body should adopt new laws, rules or
regulations which would require amendment or supplement of the Deposit Agreement
or the form of ADR to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the ADR at any time
in accordance with such changed rules. 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.
(17) Termination. The
Depositary shall, at the written direction of the Company, terminate the Deposit
Agreement and this ADR by mailing notice of such termination to the Holders at
least 30 days prior to the date fixed in such notice for such termination. The
Depositary may terminate this Deposit Agreement, after giving the notice set
forth in the preceding sentence of this paragraph (17) at any time after 30 days
has elapsed after the Depositary shall have delivered to the Company its written
resignation, provided that no
successor depositary shall have been appointed and accepted its appointment as
provided in Section 13 of the Deposit Agreement and paragraph (15) of this ADR
before the end of such 30 days. After the date so fixed for termination, the
Depositary and its agents will perform no further acts under the Deposit
Agreement and this ADR, except to receive and hold (or sell) distributions on
Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months
from the date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the pro rata benefit of the
Holders of ADRs not theretofore surrendered. After making such sale,
the Depositary shall be discharged from all obligations in respect of the
Deposit Agreement and this ADR, except to account for such net proceeds and
other cash. After the date so fixed for termination, the Company
shall be discharged from all obligations under the Deposit Agreement except for
its obligations to the Depositary and its agents.
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(18)
Appointment. Each
Holder and each person holding an interest in ADSs, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and the applicable ADR(s), 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 the Deposit
Agreement and the applicable ADR(s), 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
the Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness
thereof.
(19)
Waiver.
EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS)
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs,
THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE
BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY
OTHER THEORY).
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