ACTIONS SEMICONDUCTOR CO., LTD. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of November , 2005
TABLE
OF CONTENTS
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Page
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| PARTIES |
1
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| RECITALS |
1
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| Section 1. | Certain Definitions | |
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(a)
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ADR
Register
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1
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(b)
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ADRs;
Direct Registration ADRs
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1
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(c)
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ADS
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1
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(d)
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Custodian
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1
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(e)
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Deliver,
execute, issue et al.
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1
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(f)
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Delivery
Order
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1
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(g)
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Deposited
Securities
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1
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(h)
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Direct
Registration System
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2
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(i)
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Holder
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2
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(j)
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Securities
Act of 1933
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2
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(k)
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Securities
Exchange Act of 1934
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2
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(l)
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Shares
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2
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(m)
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Transfer
Office
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2
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(n)
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Withdrawal
Order
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2
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Section
2.
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ADRs
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2
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| Section 3. | Deposit of Shares |
2
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| Section 4. | Issue of ADRs |
2
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| Section 5. | Distributions on Deposited Securities |
3
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| Section 6. | Withdrawal of Deposited Securities |
3
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| Section 7. | Substitution of ADRs |
4
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| Section 8. | Cancellation and Destruction of ADRs |
4
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| Section 9. | The Custodian |
4
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| Section 10. | Co-Registrars and Co-Transfer Agents |
4
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| Section 11. | Lists of Holders. |
4
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| Section 12. | Depositary's Agents |
5
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| Section 13. | Successor Depositary |
5
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| Section 14. | Reports |
5
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| Section 15. | Additional Shares |
5
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| Section 16. | Indemnification |
5
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| Section 17. | Notices |
5
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| Section 18. | Miscellaneous |
5
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| Section 19. | Consent to Jurisdiction |
5
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| TESTIMONIUM |
7
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| SIGNATURES |
7
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i
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Page
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EXHIBIT
A
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FORM
OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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(1) Issuance
of
ADRs
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A-2
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(2) Withdrawal
of
Deposited Securities
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A-2
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(3) Transfers
of
ADRs
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A-2
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(4) Certain
Limitations
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A-3
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(5) Taxes
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A-4
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(6) Disclosure
of
Interests
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A-4
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(7) Charges
of
Depositary
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A-4
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(8) Available
Information
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A-5
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(9) Execution
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's Office
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A-6
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| FORM OF REVERSE OF ADR |
A-7
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(10) Distributions
on
Deposited Securities
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A-7
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(11) Record
Dates
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A-8
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(12) Voting
of
Deposited Securities
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A-8
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(13) Changes
Affecting
Deposited Securities
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A-8
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(14) Exoneration
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A-8
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(15) Resignation
and Removal of Depositary; the Custodian
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A-9
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(16) Amendment
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A-9
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(17) Termination
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A-10
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(18) Appointment
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A-10
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ii
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DEPOSIT
AGREEMENT dated as of November , 2005 (the "Deposit Agreement")
among
ACTIONS SEMICONDUCTOR CO., LTD., a Cayman Islands exempted company, and
its
successors (the "Company"), JPMORGAN CHASE BANK, N.A., as depositary hereunder
(the "Depositary"),
and all holders from time to time of American Depositary Receipts issued
hereunder
("ADRs") evidencing American Depositary Shares ("ADSs") representing deposited
Shares
(defined below). The Company hereby appoints the Depositary as depositary
for
the Deposited
Securities and hereby authorizes and directs the Depositary to act in accordance
with the
terms
set forth in this Deposit Agreement. All capitalized terms used herein
have the
meanings
ascribed to them in Section 1 or elsewhere in this Deposit Agreement. The
parties hereto
agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(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.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents
the right to receive ten Shares and a pro rata share in any other Deposited
Securities.
(d) "Custodian"
means
the agent or agents of the Depositary (singly or collectively, as
the
context requires) and any additional or substitute Custodian appointed
pursuant
to Section 9.
(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.
(f) "Delivery
Order"
is
defined in Section 3.
(g) "Deposited
Securities"
as of
any time means all Shares at such time deposited under
this Deposit Agreement and any and all other Shares, securities, property
and
cash at such time
held
by the Depositary or the Custodian in respect or in lieu of such deposited
Shares and other
Shares, securities, property and cash.
(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.
(i) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(j) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(k) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
(l) "Shares"
mean
the ordinary shares of the Company, and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at the discretion of the Depositary in accordance with its customary practices
in its American
depositary receipt business, or at the request of the Company typewritten
and
photocopied
on plain or safety paper, and shall be substantially in the form set forth
in
the form of ADR,
with
such changes as may be required by the Depositary or the Company to comply
with
their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations
or restrictions to which any particular ADRs are subject. ADRs may be issued
in
denominations
of any number of ADSs. ADRs in certificated form shall be executed by the
Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary. ADRs
in
certificated form bearing the facsimile signature of anyone who was at
the time
of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that
such
officer has ceased to hold such office prior to the delivery of such
ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the
form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration
ADRs,
unless certificated
ADRs are specifically requested by the Holder.
2
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the
form
of ADR, regardless of whether their ADRs are Direct Registration ADRs or
certificated ADRs.
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the
Depositary to issue to, or upon the written order of, the person or persons
designated in such order
a
Direct Registration ADR or ADRs evidencing the number of ADSs representing
such
deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer
in respect of such deposited Shares; (c) instruments assigning to the Custodian
or its nominee
any distribution on or in respect of such deposited Shares or indemnity
therefor; and (d) proxies
entitling the Custodian to vote such deposited Shares. As soon as practicable
after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant
to
paragraph (10)
or
(13) of the form of ADR, the Custodian shall present such Deposited Securities
for registration
of transfer into the name of the Custodian or its nominee, to the extent
such
registration
is practicable, at the cost and expense of the person making such deposit
(or
for whose benefit
such deposit is made) and shall obtain evidence satisfactory to it of such
registration. Deposited
Securities shall be held by the Custodian for the account and to the order
of
the Depositary
at such place or places and in such manner as the Depositary shall reasonably
determine.
Deposited Securities may be delivered by the Custodian to any person only
under
the circumstances
expressly contemplated in this Deposit Agreement. 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.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary
of such deposit and of the information contained in any related Delivery
Order
by letter,
first class airmail postage prepaid, or, at the request, risk and expense
of the
person making the
deposit, by cable, telex or facsimile transmission. After receiving such
notice
from the Custodian,
the Depositary, subject to this Deposit Agreement, shall properly issue
at the
Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested
and evidencing the aggregate number of ADSs to which such person is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its
reasonable discretion that any distribution pursuant to paragraph (10)
of the
form of ADR is not
reasonably practicable with respect to any Holder, the Depositary may make
such
distribution as
it so
deems reasonably practicable, including the distribution of foreign currency,
securities or property
(or appropriate documents evidencing the right to receive foreign currency,
securities or property)
or the retention thereof as Deposited Securities with respect to such Holder's
ADRs (without
liability for interest thereon or the investment thereof).
3
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal
of the Deposited Securities represented by the ADSs evidenced thereby,
the
Depositary
may require proper endorsement in blank of such ADR (or duly executed
instruments of
transfer thereof in blank) and the Holder's written order directing the
Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn
and
delivered
to, or upon the written order of, any person designated in such order (a
"Withdrawal Order").
Directions from the Depositary to the Custodian to deliver Deposited Securities
shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder,
by cable, telex or facsimile transmission. Delivery of Deposited Securities
may
be made by
the
delivery of certificates (which, if required by law shall be properly endorsed
or accompanied
by properly executed instruments of transfer or, if such certificates may
be
registered,
registered in the name of such Holder or as ordered by such Holder in any
Withdrawal Order)
or
by such other means as the Depositary may deem reasonably practicable,
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.
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration
ADR in exchange and substitution for any mutilated certificated ADR upon
cancellation
thereof or in lieu of and in substitution for such destroyed, lost or stolen
certificated ADR,
unless the Depositary has notice that such ADR has been acquired by a bona
fide
purchaser, upon
the
Holder thereof filing with the Depositary a request for such execution
and
delivery and a sufficient
indemnity bond and satisfying any other reasonable requirements imposed
by the
Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy ADRs
in
certificated form
so
cancelled in accordance with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from
time
to time appoint
one or more agents to act for it as Custodian hereunder. Each Custodian
so
appointed (other
than JPMorgan Chase Bank, N.A.) shall give written notice to the Company
and the
Depositary
accepting such appointment and agreeing to be bound by the applicable terms
hereof. Any
Custodian may resign from its duties hereunder by at least 30 days written
notice to the Depositary.
The Depositary may discharge any Custodian at any time upon notice to the
Custodian
being discharged. Any Custodian ceasing to act hereunder as Custodian shall
deliver, upon
the
instruction of the Depositary, all Deposited Securities held by it to a
Custodian continuing
to act. If the Custodian resigns or is discharged from its duties hereunder
with
respect to
any
Deposited Securities and no other Custodian has previously been appointed
hereunder, the Depositary
shall promptly appoint a substitute custodian that is authorized to act
as
custodian hereunder.
The Depositary shall give notice of any changes in Custodian to the Holders
and
the Company.
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may, after consultation with the Company if practicable, appoint
and
remove (i) co-registrars to register ADRs and transfers, combinations
and split-ups of ADRs and to countersign ADRs in accordance with the terms
of
any
such
appointment and (ii) co-transfer agents for the purpose of effecting transfers,
combinations
and split-ups of ADRs at designated transfer offices in addition to the
Transfer
Office
on
behalf of the Depositary. Each co-registrar or co-transfer agent (other
than
JPMorgan Chase
Bank, N.A.) shall give notice in writing to the Company and the Depositary
accepting such appointment
and agreeing to be bound by the applicable terms of this Deposit
Agreement.
4
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and its agents and the ADR Register, take copies thereof and require the
Depositary and
its
agents to supply copies of such portions of such records as the Company
may
request. The Depositary
or its agent shall furnish to the Company promptly upon the written request
of
the Company,
a list of the names, addresses and holdings of ADSs by all Holders as of
a date
within seven
days of the Depositary's receipt of such request.
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify
the
Company
of such appointment and shall remain responsible for the performance of
such
obligations
as if no agent were appointed.
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder by
90
days prior written notice of its election so to do delivered to the Company.
The
Depositary may
at
any time be removed by the Company by 90 days prior written notice of such
removal. Notwithstanding
anything to the contrary contained herein, in case at any time the Depositary
acting
hereunder shall resign or be removed, it shall continue to act as Depositary
for
the purpose of
terminating this Deposit Agreement pursuant to paragraph (17) of the form
of
ADR. Any bank or
trust
company into or with which the Depositary may be merged or consolidated,
or to
which the
Depositary shall transfer substantially all its American depositary receipt
business, shall be the successor
of the Depositary without the execution or filing of any document or any
further
act.
14.
Reports.
On or
before the first date on which the Company makes any communication
available to holders of Deposited Securities, by publication or otherwise,
the
Company
shall transmit to the Depositary a copy thereof in English or with an English
translation or
summary. The Company has delivered to the Depositary, the Custodian and
any
Transfer Office,
a
copy of all provisions of or governing the Shares and any other Deposited
Securities issued
by
the Company or any affiliate of the Company and, promptly upon any change
thereto, the
Company shall deliver to the Depositary, the Custodian and any Transfer
Office,
a copy (in English
or with an English translation) of such provisions as so changed. The Depositary
and its agents
may rely upon the Company's delivery thereof for all purposes of this Deposit
Agreement.
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or
under
common control with the Company shall issue additional Shares, rights to
subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities
or shall deposit any Shares under this Deposit Agreement, except under
circumstances complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable efforts
to comply with written instructions of the Company not to accept for deposit
hereunder any Shares identified in such instructions at such times and
under
such circumstances as may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with securities
laws in the United States.
5
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary
and its agents against any loss, liability or expense (including reasonable
fees
and expenses
of counsel) which may arise out of acts performed or omitted, in connection
with
the provisions
of this Deposit Agreement and of the ADRs, as the same may be amended,
modified
or supplemented
from time to time in accordance herewith (i) by either the Depositary or
its
agents or
their
respective directors, employees, agents and affiliates, except, subject
to the
penultimate paragraph
of this Section 16, for any liability or expense directly arising out of
its
negligence or bad
faith, or (ii) by the Company or any of its directors, employees, agents
or
affiliates.
The
indemnities set forth in the preceding paragraph shall apply to any liability
or
expense which
may
arise out of any misstatement or alleged misstatement or omission or alleged
omission in
any
registration statement, proxy statement, prospectus (or placement memorandum),
or preliminary
prospectus (or preliminary placement memorandum) relating to the offer
or sale
of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the
Depositary or its agents (other than the Company), as applicable, furnished
in
writing by the Depositary
and not materially changed or altered by the Company expressly for use
in any of
the foregoing
documents or (ii) if such information is provided, the failure to state
a
material fact necessary
to make the information provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend
and save harmless the Company against any loss, liability or expense (including
reasonable fees
and
expenses of counsel) incurred by the Company in respect of this Deposit
Agreement to the
extent such loss, liability or expense is due to the negligence or bad
faith of
the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR 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
The
obligations set forth in this Section 16 shall survive the termination
of this
Deposit Agreement
and the succession or substitution of any indemnified person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received
by such
Holder. Notice
to
the Depositary or the Company shall be deemed given when first received
by it at
the address
or facsimile transmission number set forth in (a) or (b), respectively,
or at
such other address
or facsimile transmission number as either may specify to the other by
written
notice:
6
| (a) |
JPMorgan
Chase Bank, N.A.
|
Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
| (b) |
Actions
Semiconductor Co. Ltd.
|
00-0,
Xx.0 XXX Xxxx
Xxxxxxx,
Xxxxxx
Xxxxxxxxx,
519805
The
People's Republic of China
Attention:
[CONTACT PERSON]
Fax:
[FACSIMILE]
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and
shall
not give any legal or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners of ADRs
from
time to time shall be parties to this Deposit Agreement and shall be bound
by
all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable
in
any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement
may be
executed
in any number of counterparts, each of which shall be deemed an original
and all
of which
shall constitute one instrument.
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 has
appointed Corporation Service Company ___________________ Xxx Xxxx, XX
00000, 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
five (5) New York business days
after the same shall have been so mailed. Notwithstanding the foregoing,
any
action based on
this
Agreement may be instituted by the Depositary or any Holder in any competent
court in The
Cayman Islands or the People's Republic of China.
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 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.
7
IN
WITNESS WHEREOF, ACTIONS SEMICONDUCTOR CO., LTD. and
JPMORGAN CHASE BANK, N.A. have duly executed this Deposit Agreement as
of the
day and
year
first above set forth and all holders of ADRs shall become parties hereto
upon
acceptance by
them
of ADRs issued in accordance with the terms hereof.
| ACTIONS SEMICONDUCTOR CO., LTD. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title | ||
| JPMORGAN CHASE BANK, N.A. | ||
| |
|
|
| By: | ||
|
Name: |
||
| Title: Vice President | ||
8
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
| ____ | No. of ADSs: |
| Number | |
|
_________
|
|
|
Each
ADS represents
|
|
|
Ten
Shares
|
|
|
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
(Incorporated
under the laws of The Cayman Islands)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under
the
laws of the United States of America , 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 ten 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 Actions Semiconductor Co. Ltd.,
.an
exempted company
organized under the laws of the Cayman Islands (the "Company"), deposited
under
the Deposit
Agreement dated as of November , 2005 (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 with the Custodian
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)
unless requested to cease doing so at least two business days prior to
a
proposed deposit, 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 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 agrees in writing with the Depositary
that such
recipient (a) 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 reasonably 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 unless at the time of deposit they may be freely transferred in accordance
with Rule 144(k)
and may otherwise be offered and sold freely in the United States or (B)
have
been registered
under the Securities Act of 1933. 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 the
securities laws of
the
United States.
(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 and neither the Depositary nor the Company
will
have any obligation
or be subject to any liability under the Deposit Agreement to any holder
of an
ADR, unless
such holder is the Holder thereof. 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 aggregate number of ADSs surrendered for split-up or
combination, 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 reasonably necessary or advisable by it in good faith or reasonably
requested by the Company.
The Depositary shall endeavor to notify the Company of such times that
it closes
the ADR
Register outside of the ordinary course of business. 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
substituted ADSs as those evidenced by the certificated ADR or Direct
Registration ADR,
as
the case may be.
(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 of any signatory 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 reasonably advisable
by
the Depositary.
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 reasonably 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
comply with
any
reasonable Company instructions in respect thereof. The Company reserves
the
right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so
as to
permit the Company to deal directly with the Holder thereof as a holder
of
Shares and Holders
agree to comply with such instructions. The Depositary agrees to cooperate
with
the Company in its efforts to inform Holders of the Company's exercise
of its
rights under this paragraph
and agrees to consult with, and provide reasonable assistance without risk,
liability or expense
on the part of the Depositary, to the Company on the manner or manners
in which
it may enforce
such rights with respect to any Holder.
A-4
(7)
Charges
of Depositary.
The
Depositary may charge each person to whom ADSs 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 ADSs
for
withdrawal of Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion
thereof) 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
ADRs
or to whom
ADRs
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 ADRs
or the
Deposited Securities
or a distribution of ADRs pursuant to paragraph (10)), whichever is applicable
(i) to the extent
not prohibited by the rules of the primary stock exchange upon which the
ADSs
are listed, a
fee of
$0.02 or less per ADS (or portion thereof) for any Cash distribution made
pursuant to the Deposit
Agreement, (ii) to the extent not prohibited by the rules of the primary
stock
exchange upon
which the ADSs are listed, a fee of $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)
to
the extent not prohibited by the rules of the primary stock exchange
upon which the ADSs are listed, a fee of US$0.02 per ADS (or portion thereof)
per year for
the
services performed by the Depositary in administering the ADRs (which fee
shall
be assessed
against Holders as of the record date or dates set by the Depositary not
more
than once 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), and
(v)
such fees and expenses as are incurred by the Depositary (including without
limitation 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
delivery
of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance
with applicable law, rule or regulation. 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, or Holders delivering Shares, ADRs or Deposited
Securities (which are
payable by such persons or Holders), (iii) transfer or registration fees
for the
registration or 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), (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),
and
(v) any other charge payable by any of the Depositary, any of the
Depositary’s
agents,
including, without limitation,
the custodian, or the agents of the Depositary’s agents in connection with the
servicing of
the
Shares or other Deposited Securities (which charge shall be assessed 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). Such charges may at any time and from time to time
be
changed by agreement
between the Company and the Depositary
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 distribute
copies of such
communications (or English translations or summaries thereof) to Holders
when
furnished by
the
Company. The Company is subject to the periodic reporting requirements
of the
Securities Exchange
Act of 1934 and accordingly files certain reports with the United States
Securities and Exchange
Commission (the "Commission"). Such reports and other information may be
inspected
and copied at public reference facilities maintained by the Commission
located
at the date
hereof at 000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(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: | ||
|
Authorized Officer |
||
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-6
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent
reasonably practicable, the Depositary will distribute 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 reasonable 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
of Rights
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 reasonably equitable and practicable,
or
(ii)
to the extent the Depositary deems distribution of such securities or property
not to be reasonably
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.
Fractional cents
will be withheld without liability and dealt with by the Depositary in
accordance with its then
current practices. No distributions pursuant to this paragraph (10) shall
be
unreasonably withheld
or delayed by any action of the Company or the Depositary or any of their
respective agents.
The Company and the Depositary shall endeavor to consult in connection
with any
Share Distributions
and with respect to Rights.
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 distribute 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, subject to any applicable
provisions of Cayman Island
law, 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 reasonable 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, irrespective of
whether
such Deposited
Securities are surrendered or otherwise cancelled by operation of law,
rule,
regulation or
otherwise, 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.
(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 or regulation of the United
States, The Cayman
Islands, The People's Republic of China 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,
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. 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-8
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as
Depositary by 90 days prior written notice of its election to do so delivered
to
the Company, or be
removed as Depositary by the Company by 90 days prior written notice of
such
removal delivered
to the 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 agreement of the Company and the Depositary without the
consent
of Holders, 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
or
regulatory 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 laws, rules or regulations.
Such
amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before
a
notice of such amendment or supplement is given to Holders or within any
other
period of
time
as required for compliance.
(17)
Termination.
Upon
the resignation or removal of the Depositary pursuant to the Deposit
Agreement, the Depositary may, and 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.
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 and its obligations to the Company under Section
16 of
the Deposit Agreement.
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.
(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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