Exhibit (a)(ii) KEPPEL CORPORATION LIMITED CITIBANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of May 31, 1989
Exhibit (a)(ii)
KEPPEL CORPORATION LIMITED
CITIBANK, N.A.,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
_____________________
_____________________
Dated as of May 31, 1989
TABLE OF CONTENTS
W I T N E S S E T H:
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1
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ARTICLE I DEFINITIONS
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1
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Section 1.1
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Company
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1
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Section 1.2
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Depositary
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1
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Section 1.3
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Principal Office
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1
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Section 1.4
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Custodian; Custodians
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1
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Section 1.5
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2
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Section 1.6
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Ordinary Shares
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2
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Section 1.7
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Deposited Securities
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2
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Section 1.8
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Receipts
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2
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Section 1.9
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American Depositary Shares
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2
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Section 1.10
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Holder
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2
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Section 1.11
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Xxxxxxxxx
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0
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Section 1.12
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Dollars; S$
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2
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Section 1.13
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Securities Act of 1933
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2
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Section 1.14
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Securities Exchange Act of 1934
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2
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Section 1.15
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Commission
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2
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ARTICLE II FORM OF RECEIPTS, DEPOSIT OF ORDINARY SHARES, EXECUTION AND DELIVERY; TRANSFER AND SURRENDER OF RECEIPTS
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3
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Section 2.1
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Form and Transferability of Receipts
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3
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Section 2.2
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Deposit of Ordinary Shares
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3
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Section 2.3
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Execution and Delivery of Receipts
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4
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Section 2.4
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Transfer of Receipts; Combination and Split-up of Receiptβs
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5
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Section 2.5
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Surrender of Receipts and Withdrawal of Ordinary Shares
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5
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Section 2.6
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Limitations on Execution and Delivery, Transfer, Etc. of Receipts; Suspension of Delivery, Transfer, Etc
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6
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Section 2.7
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Last Receipts, Etc
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6
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Section 2.8
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Cancellation and Destruction of Surrendered Receipts
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6
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ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS
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6
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Section 3.1
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Filing Proofs, Certificates and Other Information
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6
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Section 3.2
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Liability of Holder for Taxes
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7
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Section 3.3
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Warranties on Deposit of Ordinary Shares
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7
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Section 3.4
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Disclosure of Beneficial Ownership
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7
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Section 3.5
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Compliance with Information Requests
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8
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ARTICLE IV THE DEPOSITED SECURITIES
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8
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Section 4.1
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Power of Attorney
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8
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Section 4.2
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Cash Distributions; Withholding
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8
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Section 4.3
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Distributions Other Than Cash or Ordinary Shares
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9
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Section 4.4
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Distributions in Ordinary Shares
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9
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Section 4.5
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Rights
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9
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Section 4.6
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Conversion of Foreign Currency
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10
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Section 4.7
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Fixing of Record Date
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11
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Section 4.8
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Voting of Deposited Securities
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11
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Section 4.9
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Charges Affecting Deposited Securities
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12
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Section 4.10
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Available Information
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12
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Section 4.11
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Reports
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12
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Section 4.12
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Lists of Receipt Holders
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13
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Section 4.13
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Withholding
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13
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ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
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13
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Section 5.1
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Maintenance of Office and Transfer Books by the Depositary
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13
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Section 5.2
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Prevention or Delay in Performance by the Depositary or the Company
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14
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Section 5.3
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Obligations of the Depositary, the Custodian and the Company
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14
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Section 5.4
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Resignation and Removal of the Depositary; Appointment of Successor Depositary
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15
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Section 5.5
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The Custodian
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15
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Section 5.6
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Notices and Reports
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16
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Section 5.7
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Issuance of Additional Ordinary Shares Etc
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16
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Section 5.8
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Indemnification
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17
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Section 5.9
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Charges of Depositary
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17
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ARTICLE VI AMENDMENT AND TERMINATION
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17
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Section 6.1
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Amendment
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17
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Section 6.2
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Termination
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18
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ARTICLE VII MISCELLANEOUS
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18
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Section 7.1
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Counterparts
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18
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Section 7.2
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No Third Party Beneficiaries
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18
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Section 7.3
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Severability
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18
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Section 7.4
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Holders and Parties; Binding Effect
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19
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Section 7.5
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Notices
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19
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Section 7.6
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Governing Law
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19
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Exhibit A
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A-1
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Exhibit B
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B-1
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DEPOSIT AGREEMENT dated as of May 31, 1989, among KEPPEL CORPORATION LIMITED, a corporation organized under the laws of the Republic of Singapore (the βCompanyβ), CITIBANK, N.A., a national banking association organized under the laws of the United States of America (the βDepositaryβ), and all Holders from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide for the, deposit of Ordinary Shares, S$1.00 par value per share, (βOrdinary Sharesβ) of the Company from time to time with the Depositary or with the Custodian, which at the date hereof is the Singapore office of the Depositary (the βCustodianβ), as agent of the Depositary for the purposes set forth in this Deposit Agreement, for the creation of American Depositary Shares representing the Ordinary Shares so deposited and for the execution and delivery of American Depositary Receipts in respect of the American Depositary Shares.
NOW, THEREFORE, in consideration of the premises, the parties agree as follows:
ARTICLE I
The following definitions shall for all purposes, unless otherwise clearly indicated, apply to the respective terms used in this Deposit Agreement:
Section 1.4 Custodian; Custodians. The term βCustodianβ shall mean, as of the date hereof, the Singapore office of the Depositary as custodian and agent of the Depositary for the purposes of this Deposit Agreement, and any other firm or corporation which may be appointed by the Depositary pursuant to the terms of Section 5.05, as a substitute or an additional custodian or custodians hereunder, as the context shall require and the term βCustodianβ shall mean all of them, collectively.
Section 1.5 Deposit Agreement. The term βDeposit Agreementβ shall mean this instrument as it may from time to time be amended in accordance with the terms hereof and all instruments supplemental hereto.
Section 1.7 Deposited Securities. The term βDeposited Securitiesβ as of any time shall mean Ordinary Shares at such time deposited under this Deposit Agreement and any and all other securities, property and cash received by the Depositary or the Custodian in respect thereof and at such time held hereunder, subject in the case of cash to the provisions of Section 4.06.
Section 1.11 Registrar. The term βRegistrarβ shall mean any bank or trust company having an office in the Borough of Manhattan, The City of New York, which shall be appointed by the Depositary to register Receipts and transfers of Receipts as herein provided, and shall include any co-registrar appointed by the Depositary, upon the request or with the approval of the Company, for such purposes.
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ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF ORDINARY SHARES,
EXECUTION AND DELIVERY; TRANSFER AND SURRENDER
OF RECEIPTS
Section 2.1 Form and Transferability of Receipts. Definitive Receipts shall be engraved or printed or lithographed on steel-engraved borders and shall be substantially in the form set forth In Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. Such Receipts shall be executed and dated by the Depositary by the manual signature of a duly authorized officer of the Depositary; provided, however, that such signature may be a facsimile if a Registrar for the Receipts shall have been appointed and such Receipts are countersigned by the manual signature of a duly authorized officer of the Registrar and dated by such officer. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose, unless such Receipt shall have been executed by the Depositary by the manual signature of a duly authorized officer or, if a Registrar shall have been appointed, by the manual signature of a duly authorized officer of the Registrar, and such execution of any Receipt by manual signature shall be conclusive evidence, and the only evidence, that such Receipt has been duly executed and delivered hereunder. The Depositary shall maintain books in which each Receipt so executed and delivered as hereinafter provided and the transfer of each such Receipt shall be registered. Receipts bearing the facsimile signature of a duly authorized officer of the Depositary, who was at any time a proper officer of the Depositary, shall bind the Depositary, notwithstanding the fact that such officer has ceased to hold such office prior to the execution of such Receipts by the Registrar and their delivery or such officer did not hold such office at the date of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be necessary to enable the Depositary to perform its obligations hereunder or as may be required to comply with any applicable law or regulations thereunder or with the rules and regulations of any securities exchange or market upon which American Depositary Shares may be traded or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject by reason of the date of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to each American Depositary Share evidenced thereby), when such Receipt is properly endorsed or accompanied by proper instruments of transfer, shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that the Depositary, notwithstanding any notice to the contrary, may treat the Holder thereof as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes.
Section 2.2 Deposit of Ordinary Shares. Subject to the terms and conditions of this Deposit Agreement, Ordinary Shares may be deposited by any person including the Depositary in its individual capacity by delivery thereof to the Custodian, accompanied by any appropriate instrument or instruments of transfer or endorsement, in form satisfactory to such Custodian, together with all such certifications as may be required by the Depositary or such Custodian in accordance with the provisions of this Deposit Agreement, and together with a written order directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order a Receipt or Receipts for the number of American Depositary Shares representing the Ordinary Shares so deposited. No Ordinary Shares shall be accepted for deposit unless accompanied by evidence satisfactory to the Depositary (which may be an opinion of counsel) that any necessary approval has been granted by the governmental agency in the Republic of Singapore, if any, which is then performing the function of the regulation of currency exchange. If required by the Depositary, Ordinary Shares presented for deposit at any time, whether or not the transfer books of the Company are closed, shall also be accompanied by an agreement or assignment, or other instrument satisfactory to the Depository, which will provide for the prompt transfer to the Depositary of any dividend or right to subscribe for additional Ordinary Shares or to receive other property which any person in whose name the Ordinary Shares are or have been recorded may thereafter receive upon or in respect of any such deposited Ordinary Shares, or in lieu thereof, such agreement of Indemnity or other agreement as shall be satisfactory to the Depositary.
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At the request and risk and expense of any holder of Ordinary Shares, and for the account of such holder, the Depositary may receive Ordinary Shares to be deposited, together with the other instruments herein specified, for the purpose of forwarding such Ordinary Shares to the Custodian for deposit hereunder.
Upon each delivery to a Custodian of Ordinary Shares to be deposited hereunder, together with the other documents above specified, such Custodian shall, as soon as transfer and recordation can be accomplished; request the Company, to transfer and record the Ordinary Shares being deposited in the name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for the account and to the order of the Depositary or at such other place or places as the Depositary shall determine.
Section 2.3 Execution and Delivery of Receipts. Upon receipt by a Custodian of a deposit pursuant to Section 2.02 hereunder (and in addition, if the transfer books of the Company are open, a proper acknowledgement or other evidence from the Company satisfactory to the Depositary that any Deposited Securities have been recorded upon the books of the Company in the name of the Depositary or its nominee or such Custodian or its nominee), together with the other documents required as above specified, such Custodian shall notify the Depositary of such deposit and the person or persons to whom or upon whose written order a Receipt or Receipts are deliverable in respect thereof and the number of American Depositary Shares to be evidenced thereby. Such notification shall be made by letter or, at the request and risk and expense of the person making, the deposit, by cable, telex or facsimile transmission. Upon receiving such notice from such Custodian, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver at its principal Office to or upon the order of the person or persons named in the notice delivered to the Depositary, a Receipt or Receipts, registered in the name or names requested by such person or persons and evidencing in the aggregate the number of American Depositary Shares to which such person is entitled, but only upon payment to the Depositary of the fee of the Depositary for the issuance, execution and delivery of such Receipt or Receipts (as set forth on Exhibit B hereto) and of all taxes and governmental charges and fees payable in connection with such deposit and the transfer of the deposited Ordinary Shares.
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Section 2.4 Transfer of Receipts; Combination and Split-up of Receiptβs. The Depositary, subject to the terms and conditions of this Deposit Agreement, shall register transfers of Receipts on its transfer books, upon any surrender of a Receipt by the Holder thereof in person or by duly authorized attorney, properly endorsed or accompanied by proper instruments of transfer and duly stamped as may be required by the laws of the State of New York and of the United States of America. Thereupon the Depositary shall execute a new Receipt or Receipts and deliver the same to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose of effecting a split-up or combination of such Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of American Depositary Shares requested, representing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered.
Section 2.5 Surrender of Receipts and Withdrawal of Ordinary Shares. Upon surrender at the Principal Office of the Depositary of a Receipt for the purpose of withdrawal of the Deposited Securities represented thereby, and upon payment of the fee of the Depositary for the cancellation of Receipts (as set forth on Exhibit B hereto) and subject to the terms and conditions of this Deposit Agreement, the Holder of such Receipt shall be entitled to delivery, to him or upon his order, of the Deposited Securities at the time represented by such Receipt. Delivery of such Deposited Securities may be made by the delivery of certificates to such Holder or as ordered by him. Such delivery shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary to be properly endorsed in blank or accompanied by proper instruments of transfer in blank, and the Holder thereof shall execute and deliver 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 a person or persons designated in such order. Thereupon the Depositary shall direct the Custodian to deliver at the office of the Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this Deposit Agreement, to or upon the written order of the person or persons designated in the order delivered to the Depositary as provided above, the Deposited Securities represented by such Receipt, except that the Depositary may make delivery to such person or persons at the Principal Office of the Depositary of any dividends or distributions with respect to the Deposited Securities represented by such Receipt, or of any proceeds of sale of any dividends, distributions or rights,, which may at the time be held by the Depositary.
At the request, risk and expense of any Holder so surrendering a Receipt, and for the account of such Holder, the Depositary shall direct the Custodian to forward a certificate or certificates and other proper documents of title for the Deposited Securities represented by such Receipt 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.
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Section 2.6 Limitations on Execution and Delivery, Transfer, Etc. of Receipts; Suspension of Delivery, 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 payment from the presenter of the Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee, with respect to Ordinary Shares being deposited or withdrawn) and payment of any applicable fees as herein provided, may require the production of proof satisfactory to it as to the identity and genuineness of any signature and may also require compliance with such regulations, if any, as the Depositary may establish consistent with the provisions of this Deposit Agreement.
The delivery of Receipts against deposits of Ordinary Shares generally or against deposits of particular Ordinary Shares may be suspended, or the delivery of Receipts against the deposit of particular Ordinary Shares may be withheld, or the registration of transfer of Receipts in particular instances may be refused, or the registration of transfer or the surrender of outstanding Receipts generally may be suspended, during any period when the transfer books of the Depositary or the Company 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 or of any government or governmental body or commission, or under any provision of this Deposit Agreement. Without limitation of the foregoing, the Depositary shall not knowingly accept for deposit under this Deposit Agreement any Ordinary Shares required to be registered under the provisions of the Securities Act of 1933, unless a registration statement is in effect as to such Ordinary Shares.
Section 2.7 Last Receipts, Etc. In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall execute and deliver a new Receipt of like tenor, in exchange and substitution for such mutilated Receipt upon cancellation thereof, or in lieu of and in substitution for such destroyed, lost or stolen Receipt, upon the Holder thereof filing with the Depositary (a) a request for such exchange and delivery before the Depositary has notice that the Receipt has been acquired by a bona fide purchaser and (b) a sufficient indemnity bond and satisfying any other reasonable requirements imposed by the Depositary.
Section 2.8 Cancellation and Destruction of Surrendered Receipts. All Receipts surrendered to the Depositary shall be cancelled by the Depositary. The Depositary is authorized to destroy Receipts so cancelled.
ARTICLE III
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(1)
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the background, and identity, residence, and citizenship of, and the nature of such beneficial ownership by, such person and all other persons by whom or on whose behalf the purchases have been or are to be effected; and
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(2)
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the number of Ordinary Shares and Receipts which are beneficially owned, and the number of Ordinary Shares and Receipts concerning which there is a right to acquire, directly, by (i) such person, and (ii) by each associate of such person, giving the background, identity, residence, and citizenship of each such associate.
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If any material change occurs in the facts set forth in the statements provided to the Company pursuant to this Section, the person making such statement shall, within 2 days of becoming aware of, such change, send to the Company at the address set forth in Section 7.05, by registered or certified mail, an amendment setting forth such changes.
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When two or more persons act as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of an issuer, such syndicate of group shall be deemed a βpersonβ for the purposes of this Section.
In determining, for purposes of this Section, the percentage of Ordinary Shares, the Ordinary Shares shall be deemed to consist of the amount of the outstanding Ordinary Shares, exclusive of any Ordinary Shares held by or for the account of the Company or a subsidiary of then Company.
ARTICLE IV
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(i)
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if at the time of the offering of any rights the Depositary determines that it is lawful and feasible to make such rights available to Holders of Receipts by means of warrants or otherwise, the Depositary shall distribute warrants or other instruments therefor in such form as it may determine to the Holders entitled thereto, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively, or employ such other method as it may deem feasible in order to facilitate the exercise, sale or transfer of rights by such Holders; or
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(ii)
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if at the time of the offering of any rights the Depositary determines that it is not lawful or not feasible to make such rights available to Holders of Receipts by means of warrants or otherwise, or if the rights represented by such warrants or such other instruments are not exercised and appear to be about to lapse, the Depositary in its discretion may sell such rights or such warrants or other instruments at public or private sale, at such place or places and upon such terms as it may deem proper, and allocate the proceeds of such sales for account of the Holders of Receipts otherwise entitled to such rights, warrants or other instruments upon an averaged or other practicable basis without regard to any distinctions among such Holders because of exchange restrictions or the date of delivery of any Receipt or Receipts, or otherwise.
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If registration under the Securities Act of 1933 of the securities to which any rights relate is required in order for the company to offer such rights to Holders of Receipts and to sell the represented by such rights, the Depositary will not offer such rights to the Holders of Receipts unless and until an appropriate registration statement under such Act is in effect, or unless the offering and sale of such securities to the Holders of such Receipts are exempt from registration under the provisions of such Act.
If such conversion with regard to a particular Holder or distribution can be effected only with the approval or license of any government or agency thereof, the Depositary shall file such application for approval or license, if any, as it may deem desirable.
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If at any time the Depositary shall determine that in its judgment any foreign currency received by the Depositary is not convertible on a reasonable basis into dollars distributable to the Holders of Receipts entitled thereto, or if any approval or license of any government or authority or agency thereof which is required for such conversion is denied or in the opinion of the Depositary is not obtainable, or if any such approval or license is not obtained within a reasonable period as determined by the Depositary, the Depositary may distribute the foreign currency (or an appropriate document evidencing the right to receive such foreign currency) received by the Depositary to, or in its discretion may hold such foreign currency for the respective accounts of, the Holders of Receipts entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be effected for distribution to some Holders of Receipts entitled thereto, the Depositary may in its discretion make such conversion and distribution in dollars to the extent permissible to the Holders of Receipts for whom such conversion and distribution is practicable and may distribute the balance of the foreign currency received by the Depositary to, or hold such balance for the account of, the Holders of Receipts for whom such conversion and distribution is not practicable.
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The Depositary agrees not to vote the Ordinary Shares or other Deposited Securities evidenced by a Receipt unless it receives instructions from the Holder of such Receipt.
In addition, upon the express written request of the Company, the Depositary agrees to furnish, without, however, thereby relieving the Company of its obligation under the Securities Exchange Act of 1934 to do so, and without incurring any liability for failure to do so, to the Commission copies of any specified annual or other periodic reports and other notices or communications which the Depositary receives from the Company. The Depositary shall also furnish to the Commission semi-annually, beginning on or before six months after the effective date of any registration statement filed with the Commission under the Securities Act of 1933 relating to the Receipts, the following information in tabular form:
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(1)
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The number of American Depositary Shares evidenced by Receipts issued during the period covered by the report;
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(2)
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The number of American Depositary Shares evidenced by Receipts retired during the period covered by the report;
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(3)
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The total amount of American Depositary Shares evidenced by Receipts remaining outstanding at the end of the six-month period; and
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(4)
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The total number of Holders of Receipts at the end of the six-month period.
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The Depositary shall also furnish to the Commission the name of each dealer known to the Depositary depositing Ordinary Shares against issuance of Receipts during the period covered by the report. The Company shall furnish the Depositary with the names of each such dealer known to the Company, and the Depositary shall include in its report to the Commission the names of such dealer or dealers which are supplied by the Company.
ARTICLE V
Section 5.1 Maintenance of Office and Transfer Books by the Depositary. Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall maintain in the Borough of Manhattan, The City of New York, facilities for the execution and delivery, registration, registration of transfers and surrender of Receipts in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books for the registration of Receipts and transfers of Receipts which at all reasonable times shall be open for inspection by the Holders of Receipts, provided that such inspection shall not to the Depositaryβs knowledge be for the purpose of communicating with Holders of Receipts in the interest of a business or object other than the business of the Company or a matter related to this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are listed on one or more stock exchanges in the United States, the Depositary shall act as Registrar or, with the approval of the Company, appoint a Registrar or one or more co-registrars for registry of such Receipts in accordance with any requirements of such exchange or exchanges. Such Registrar or co-registrars may be removed and a substitute or substitutes appointed by the Depositary upon the request or with the approval of the Company.
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The Depositary assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to Holders of Receipts (including without limitation, liability with respect to the validity or worth of the Deposited Securities), except than it agrees to use its best judgment and to act in good faith in the performance of its duties set forth in this Deposit Agreement.
Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the Receipts, which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required, and no Custodian shall be under any obligation whatsoever with respect to such proceedings, the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action or non-action by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Ordinary Shares for deposit, any Holder of a Receipt, or any other person believed by it in good faith to be competent to give such advice or information.
The Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any such vote is cast or the effect of any such vote, provided that any such action or omission is in good faith and in accordance with the terms of this Deposit Agreement.
The Depositary may own and deal in any class of securities of the Company and its affiliates and in Receipts.
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No disclaimer of liability under the Securities Act of 1933 is intended by any provision of this Deposit Agreement.
The Depositary may at any time be removed by the Company by written notice of such removal effective upon the appointment of a successor depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, The City of New York. Every successor depositary shall 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; but such predecessor, nevertheless, upon payment of all sums due it and on the written request of the Company shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Deposited Securities to such successor, and shall deliver to such successor a list of the Holders of all outstanding Receipts. Any such successor depositary shall promptly mail notice of its appointment to the Holders of Receipts.
Any corporation into or with which the Depositary may be merged or consolidated the successor of the Depositary without the execution or filing of any document or any further act.
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Upon the appointment of any successor depositary hereunder, any Custodian then acting hereunder shall forthwith become, without any further act or writing, the agent hereunder of such successor depositary and the appointment of such successor depositary shall in no way impair the authority of each Custodian hereunder; but the successor depositary so appointed shall, nevertheless, on the written request of any Custodian, execute and deliver to such Custodian all such instruments as may be proper to give to such Custodian full and complete power and authority as agent hereunder of such successor depositary.
The Depositary will arrange for the prompt transmittal by the Custodian to the Depositary of such notices and any other reports and communications which are made generally available by the Company to holders of its Ordinary Shares, and arrange for the mailing of copies thereof to all Holders of Receipts. The Company shall pay the reasonable expenses in connection, with the transmittal of such notices, reports and communications by the Custodian to the Depositary and the mailing of the copies, thereof to the Holders of Receipts.
The Company agrees that it will determine whether future issuances for cash of (1) additional Ordinary Shares, (2) rights to subscribe for Ordinary Shares, (3) securities convertible into or exchangeable for Ordinary Shares, or (4) rights to subscribe for securities convertible into or exchangeable for Ordinary Shares (in each event other than as a dividend or distribution set forth above), are such as to make it necessary for a Registration Statement under the Securities Act of 1933 covering such securities to be in effect. If the Company determines that an issuance of such securities is required to be registered under the Securities Act of 1933, the Company will register such issuance to the extent necessary, alter the terms of the issuance to avoid the registration requirements of the Securities Act of 1933 or direct the Depositary to take specific measures with respect to the acceptance for deposit of Ordinary Shares to prevent such issuance from being made in violation of the registration requirements of such act.
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The Company agrees with the Depositary that neither the Company nor any company controlled by the Company will at any time deposit any Ordinary Shares, either upon original issuance of upon a sale of Ordinary Shares previously issued and reacquired by the Company or by any company under its control, unless a Registration Statement is in effect as to such ordinary Shares under the securities Act of 1933.
The Depositary agrees to indemnify the Company and hold it harmless from any liability or expense which may arise out of acts performed or omitted by the Depositary or its Custodian due to the negligence or bad faith of either the Depositary or the Custodian.
ARTICLE VI
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ARTICLE VII
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Any and all notices to be given to the Depositary shall be deemed to have been duly given if personally delivered or sent by mail, air courier or cable, telex or facsimile transmission, confirmed by letter, addressed to Citibank, N.A., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ADR Department, or to any other address which the Depositary may specify in writing.
Any and all notices to be given to any Holder of a Receipt shall be deemed to have been duly given if personally delivered or sent by mail or cable, telex or facsimile transmission, confirmed by letter, addressed to such Holder at the address of such Holder as it appears on the transfer books for Receipts of the Depositary, or, if such Holder shall have filed with the Depositary a written request that notices intended for such Holder be mailed to some other address, at the address specified in such request.
Delivery of a notice sent by mail, air courier or cable, telex or facsimile transmission shall be deemed to be effective at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a cable, telex or facsimile transmission) is deposited, postage prepaid, in a post-office letter box or delivered to an air courier service. The Depositary or the Company may, however, act upon any cable, telex or facsimile transmission received by it from the other or from any Holder of a Receipt, notwithstanding that such cable, telex or facsimile transmission shall not subsequently be confirmed by letter as aforesaid.
Section 7.6 Governing Law. This Deposit Agreement and the Receipts shall be interpreted and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by the laws of the State of New York.
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KEPPEL CORPORATION LIMITED
By /s/ Teo Soon Hoe
Title: Group Finance Officer
CITIBANK, N.A.
By /s/ Xxxx Xxxxxxx
Vice President
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EXHIBIT A
Number
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AMERICAN DEPOSITARY
SHARES
(EACH REPRESENTING
2 ORDINARY SHARES)
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[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES OF
KEPPEL CORPORATION LIMITED
(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 βDepositaryβ), hereby certifies that ______ is the owner of _____ American Depositary Shares, representing deposited ordinary shares or evidence of rights to receive ordinary shares, S$1.00 par value per share (βOrdinary Sharesβ), of Keppel Corporation Limited, a corporation organized under the laws of the Republic of Singapore (the βCompanyβ). At the date of the Deposit Agreement, each American Depositary Share represents 2 Ordinary Shares1 deposited under the Deposit Agreement (as hereafter defined) with the Custodian which at the date of execution of the Deposit Agreement is the Singapore office of the Depositary.
______________________
1 Subject to amendment as provided in Article IV of the Deposit Agreement.
A-1
(2) Surrender of Receipts and Withdrawal of Ordinary Shares. Upon surrender at the Principal Office of the Depositary of this Receipt, and upon payment of the fee of the Depositary provided in paragraph (6) of this Receipt, and subject to the terms and conditions of the Deposit Agreement, the Holder hereof is entitled, to delivery, to him or upon his order, of the Deposited Securities at the time represented by the American Depositary Shares for which this Receipt is issued. Delivery of such Deposited Securities may be made by the delivery of certificates or other appropriate evidence of title to the order of the Holder hereof or as ordered by him or by the delivery of certificates or other appropriate evidence of title endorsed or accompanied by proper instruments of transfer. Such delivery will be made without unreasonable delay and, at the option of the Holder hereof, either at the office of any Custodian or at the Principal Office of the Depositary, provided that the forwarding of Ordinary Shares or other Deposited Securities for such delivery at the corporate trust office of the Depositary in the Borough of Manhattan, The City of New York (the βPrincipal Officeβ) shall be at the risk and expense of the Holder hereof.
The Depositary may refuse to execute and to deliver Receipts, register the transfer of any Receipt, of make any distribution of, or related to, Deposited Securities until it has received such proof of citizenship, residence, exchange control approval or other information as it may deem necessary or proper. The delivery of Receipts against deposits of particular Ordinary Shares may be suspended, or the delivery of Receipts against the deposit of particular Ordinary Shares may be withheld or the registration of transfer of Receipts in particular instances may be refused, or the registration of transfer or the surrender of outstanding Receipts generally may be suspended, during any period when the transfer books of the Depositary or the Company are closed, if any such action is deemed necessary or advisable by the Depositary or the Company, at any time or from time to time in accordance with the Deposit Agreement. Without limitation of the foregoing, the Depositary will not knowingly accept for deposit under the Deposit Agreement any Ordinary Shares which, if sold by the Holder thereof in the United States or its territories, would be subject to the registration provisions of the United States Securities Act of 1933, as from time to time amended, unless a registration statement is in effect as to such Ordinary Shares.
A-2
All such charges may be changed by agreement between the Depositary and the Company at any time and from time to time, effective only after 90 daysβ notice thereof is given to Holders.
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(1)
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the background, and, identity, residence, and citizenship of, and the nature of such beneficial ownership by, such person and all other persons by whom or on whose behalf the purchases have been or are to be effected; and
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A-3
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(2)
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the number of Ordinary Shares and Receipts which are beneficially owned, and the number of Ordinary Shares and Receipts concerning which there is a right to acquire, directly, by (i) such person, and (ii) by each associate of such person, giving the background, identity, residence, and citizenship of each such associate.
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If any material change occurs in the facts set forth in the statement to the Company pursuant to this provision, the person making such statement shall, within 2 days of becoming aware of such change, send to the Company at the address set forth in the Deposit Agreement, by registered or certified mail, an amendment setting forth such changes.
When two or more persons act as a partnership, limited partnership, syndicate, or other group for the purpose of acquiring, holding, or disposing of securities of an issuer, such syndicate or group shall be deemed a βpersonβ for the purposes of this Section.
In determining, for purposes of this Section, the percentage of Ordinary Shares, the Ordinary Shares shall be deemed to consist of the amount of the outstanding Ordinary Shares, exclusive of any Ordinary Shares held by or for the account of the Company or a subsidiary of the Company.
Notwithstanding any other provision of the Deposit Agreement, each Holder agrees to comply with requests from the Company, pursuant to the Companies Act (Chapter 50), which are made to provide information as to the capacity in which such Holder owns Receipts and regarding the indentity of any other person interested in such Receipts and the nature of such interest and shall, in accordance with the provisions of the Memorandum and Articles of Association of the Company, forfeit the right to direct the voting of Ordinary Shares as to which compliance is not made. The Depositary agrees to use its reasonable efforts to comply with written requests received from the Company requesting that the Depositary forward any such request from the Company to the Holder and to forward to the Company, at the Companyβs expense, any responses to such requests received by the Depositary.
A-4
Dates:
Countersigned
By: ________________________
Authorized Officer
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CITIBANK, N.A.
as Depositary
By: ________________________
Vice President
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The address of the Principal Office of the Depositary is 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-5
(FORM OF REVERSE OF RECEIPT)
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
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A-7
A-8
A-9
EXHIBIT B
CHARGES OF THE DEPOSITARY
The Company, the Holders, the Beneficial Owners and the persons depositing Shares or surrendering ADSs for cancellation agree to pay the following fees of the Depositary:
Service
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Rate
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By Whom Paid
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(1) |
Receipt of deposits and issuance of Receipts
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$5.00 per 100 American Depositary Shares (or fraction thereof)
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Party to whom Receipts are issued
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(2) |
Delivery of deposited Ordinary Shares against surrender of Receipts
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$5.00 per 100 American Depositary Shares (or fraction thereof)
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Party surrendering Receipts
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Charges of the Depositary, plus out-of-pocket expenses such as printing, translation, stationery, postage, insurance, cables, etc., are to be paid by the Company in accordance with agreement in writing entered into between the Depositary and the Company from time to time.
B-1