EFFECTIVE April 23, 2007, THE
COMPANYS PAR VALUE CHANGED
FROM
RM0.50 TO RM0.10
Exhibit A to Deposit Agreement
No
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents five (5) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF THE
PAR VALUE OF M$0.5 EACH OF
GENTING BERHAD
(INCORPORATED UNDER THE LAWS
OF MALAYSIA)
The Bank of New York as depositary
(hereinafter called the Depositary), hereby
certifies that , or registered assigns IS THE
OWNER OF
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary Shares of
the par value of M$0.5 each (herein called
Shares) of Genting Berhad, incorporated
under the laws of Malaysia (herein called the
Company). At the date hereof, each
American Depositary Share represents five
(5) Shares which are either deposited or
subject to deposit under the deposit
agreement at the Kuala Lumpur, Malaysia
office of Malayan Banking Berhad (herein
called the Custodian). The Depositarys
Corporate Trust Office is located at a
different address than its principal executive
office. Its Corporate Trust Office is located
at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X.
10286, and its principal executive office is
located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X.
10286.
THE DEPOSITARYS CORPORATE
TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX,
X.X. 10286
1. THE DEPOSIT
AGREEMENT.
This American Depositary Receipt is
one of an issue (herein called Receipts), all
issued and to be issued upon the terms and
conditions set forth in the deposit agreement,
dated as August 4, 1999 (herein called the
Deposit Agreement), by and among the
Company, the Depositary, and all Owners
and holders from time to time of Receipts
issued thereunder, each of whom by
accepting a Receipt agrees to become a party
thereto and become bound by all the terms
and conditions thereof. The Deposit
Agreement sets forth the rights of Owners
and holders of the Receipts and the rights
and duties of the Depositary in respect of the
Shares deposited thereunder and any and all
other securities, property and cash from time
to time received in respect of such Shares
and held thereunder (such Shares, securities,
property, and cash are herein called
Deposited Securities). Copies of the
Deposit Agreement are on file at the
Depositarys Corporate Trust Office in New
York City and at the office of the Custodian.
The statements made on the face and
reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement
and are qualified by and subject to the
detailed provisions of the Deposit
Agreement, to which reference is hereby
made. Capitalized terms not defined herein
shall have the meanings set forth in the
Deposit Agreement.
2. SURRENDER OF
RECEIPTS AND WITHDRAWAL OF
SHARES.
Upon surrender at the Corporate
Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the
Depositary provided in this Receipt, and
subject to the terms and conditions of the
Deposit Agreement, the Owner 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 (a) certificates in
the name of the Owner hereof or as ordered
by him or by the delivery of certificates
properly endorsed or accompanied by proper
instruments of transfer and (b) any other
securities, property and cash to which such
Owner is then entitled in respect of this
Receipt. Such delivery will be made at the
option of the Owner hereof, either at the
office of the Custodian or at the Corporate
Trust Office of the Depositary, provided that
the forwarding of certificates for Shares or
other Deposited Securities for such delivery
at the Corporate Trust Office of the
Depositary shall be at the risk and expense
of the Owner hereof.
3. TRANSFERS, SPLITUPS,
AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is
registrable on the books of the Depositary at
its Corporate Trust Office by the Owner
hereof in person or by a duly authorized
attorney, upon surrender of this Receipt
properly endorsed for transfer or
accompanied by proper instruments of
transfer and funds sufficient to pay any
applicable transfer taxes and the fees and
expenses of the Depositary and upon
compliance with such regulations, if any, as
the Depositary may establish for such
purpose. This Receipt may be split into
other such Receipts, or may be combined
with other such Receipts into one Receipt,
representing the same aggregate number of
American Depositary Shares as the Receipt
or Receipts surrendered. As a condition
precedent to the execution and delivery,
registration of transfer, splitup, combination,
or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, the
Custodian, or Registrar may require payment
from the presentor 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 Shares being deposited or
withdrawn) and payment of any applicable
fees as provided in this Receipt, may require
the production of proof satisfactory to it as
to the identity and genuineness of any
signature and may also require compliance
with any regulations the Depositary may
establish consistent with the provisions of
the Deposit Agreement or this Receipt,
including, without limitation, paragraphs (6)
and (22) of this Receipt.
The delivery of Receipts against
deposits of Shares generally or against
deposits of particular Shares may be
suspended, or the transfer of Receipts in
particular instances may be refused, or the
registration of transfer of outstanding
Receipts generally may be suspended, during
any period when the transfer books of the
Depositary, the Company or the Foreign
Registrar are closed, or if any such action is
deemed necessary or advisable by the
Depositary or the Company 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 the Deposit Agreement or
this Receipt, or for any other reason, subject
to paragraph (22) hereof. The surrender of
outstanding Receipts and withdrawal of
Deposited Securities may not be suspended
except as permitted by General Instruction
I.A. (1) to Form F6 (as such instruction or its
equivalent may be amended from time to
time) under the Securities Act of 1933.
Without limitation of the foregoing, the
Depositary shall not knowingly accept for
deposit under the Deposit Agreement any
Shares required to be registered under the
provisions of the Securities Act of 1933,
unless a registration statement is in effect as
to such Shares.
4. LIABILITY OF OWNER
FOR TAXES.
If any tax or other governmental
charge shall become payable with respect to
any Receipt or any Deposited Securities
represented hereby, such tax or other
governmental charge shall be payable by the
Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer
of this Receipt or any withdrawal of
Deposited Securities represented by
American Depositary Shares evidenced by
such Receipt until such payment is made,
and may withhold any dividends or other
distributions, or may sell for the account of
the Owner hereof any part or all of the
Deposited Securities represented by the
American Depositary Shares evidenced by
this Receipt, and may apply such dividends
or other distributions or the proceeds of any
such sale in payment of such tax or other
governmental charge and the Owner hereof
shall remain liable for any deficiency.
5. WARRANTIES OF
DEPOSITORS.
Every person depositing Shares
under the Deposit Agreement shall be
deemed thereby to represent and warrant that
such Shares and each certificate therefor are
validly issued, fully paid, non assessable,
and free of any preemptive rights of the
holders of outstanding Shares and that the
person making such deposit is duly
authorized so to do. Every such person shall
also be deemed to represent that Shares
deposited by that person are not restricted
securities. Such representations and
warranties shall survive the deposit of
Shares and issuance of Receipts.
6. FILING PROOFS,
CERTIFICATES, AND OTHER
INFORMATION.
Any person presenting Shares for
deposit or any Owner of a Receipt may be
required from time to time to file with the
Depositary or the Custodian such proof of
citizenship or residence, exchange control
approval, or such information relating to the
registration on the books of the Company or
the Foreign Registrar, if applicable, to
execute such certificates and to make such
representations and warranties, as the
Depositary or the Company may deem
necessary or proper. The Depositary may
withhold the delivery or registration of
transfer of any Receipt or the distribution of
any dividend or sale or distribution of rights
or of the proceeds thereof or the delivery of
any Deposited Securities until such proof or
other information is filed or such certificates
are executed or such representations and
warranties made. If requested, the
Depositary shall provide the Company, in a
timely manner, with copies or originals, if
necessary and appropriate of (i) any such
proofs of citizenship or residence, or
exchange control approval which it receives
and (ii) any other information or documents
which the Company may reasonably request
and which the Depositary shall request from
the Owners. No Share shall be accepted for
deposit unless accompanied by evidence
satisfactory to the Depositary that any
necessary approval has been granted by any
governmental body in Malaysia which is
then performing the function of the
regulation of currency exchange.
7. CHARGES OF
DEPOSITARY.
The Company agrees to pay the fees,
reasonable expenses and outofpocket
charges of the Depositary and those of any
Registrar only in accordance with
agreements in writing entered into between
the Depositary and the Company from time
to time. The Depositary shall present its
statement for such charges and expenses to
the Company once every three months. The
charges and expenses of the Custodian are
for the sole account of the Depositary.
The following charges shall be
incurred by any party depositing or
withdrawing Shares or by any party
surrendering Receipts or to whom Receipts
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 Receipts or
Deposited Securities or a distribution of
Receipts pursuant to Section 4.3 of the
Deposit Agreement), whichever applicable:
(1) taxes and other governmental charges,
(2) such registration fees as may from time
to time be in effect for the registration of
transfers of Shares generally on the share
register of the Company or Foreign Registrar
and applicable to transfers of Shares to the
name of the Depositary or its nominee or the
Custodian or its nominee on the making of
deposits or withdrawals under the Deposit
Agreement, (3) such cable, telex and
facsimile transmission expenses as are
expressly provided in the Deposit
Agreement, (4) such expenses as are
incurred by the Depositary in the conversion
of foreign currency pursuant to Section 4.5
of the Deposit Agreement, (5) a fee not in
excess of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for
the execution and delivery of Receipts
pursuant to Section 2.3, 4.3 or 4.4 of the
Deposit Agreement and the surrender of
Receipts pursuant to Section 2.5 or 6.2 of
the Deposit Agreement, (6) a fee not in
excess of $.02 or less per American
Depositary Share (or portion thereof) for any
cash distribution made pursuant to the
Deposit Agreement including, but not
limited to Sections 4.1 through 4.4 thereof
and, (7) a fee not in excess of $1.50 or less
per certificate for a Receipt or Receipts for
transfers made pursuant to Section 2.4 of the
Deposit Agreement and (8) a fee for the
distribution of securities pursuant to Section
4.2 of the Deposit Agreement, such fee
being in an amount equal to the fee for the
execution and delivery of American
Depositary Shares referred to above which
would have been charged as a result of the
deposit of such securities (for purposes of
this clause (8) treating all such securities as
if they were Shares), but which securities are
instead distributed by the Depositary to
Owners and (9) any other charge payable by
the Depositary, any of the Depositarys
agents, including the Custodians, or the
agents of the Depositarys agents in
connection with the servicing of Shares or
other Deposited Securities (which charge
shall be assessed against Owners of record
as of the date or dates set by the Depositary
in accordance with Section 4.06 of the
Deposit Agreement and shall be collected at
the sole discretion of the Depositary by
billing such Owners for such charge or by
deducting such charge from one or more
cash dividends or other cash distributions).
The Depositary, subject to Paragraph
(8) hereof, may own and deal in any class of
securities of the Company and its affiliates
and in Receipts.
8. PRERELEASE OF
RECEIPTS
Notwithstanding Section 2.3 of the
Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the
receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement (PreRelease). The
Depositary may, pursuant to Section 2.5 of
the Deposit Agreement, deliver Shares upon
the receipt and cancellation of Receipts
which have been PreReleased, whether or
not such cancellation is prior to the
termination of such PreRelease or the
Depositary knows that such Receipt has
been PreReleased. The Depositary may
receive Receipts in lieu of Shares in
satisfaction of a PreRelease. Each
PreRelease will be (a) preceded or
accompanied by a written representation
from the person to whom Receipts are to be
delivered that such person, or its customer,
owns the Shares or Receipts to be remitted,
as the case may be, (b) at all times fully
collateralized with cash or such other
collateral as the Depositary deems
appropriate, (c) terminable by the Depositary
on not more than five (5) business days
notice, and (d) subject to such further
indemnities and credit regulations as the
Depositary deems appropriate. The number
of American Depositary Shares which are
outstanding at any time as a result of
PreReleases will not normally exceed thirty
percent (30%) of the Shares deposited under
the Deposit Agreement provided, however,
that the Depositary reserves the right to
change or disregard such limit from time to
time as it deems appropriate.
The Depositary may retain for its
own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and
every successive holder and Owner of this
Receipt by accepting or holding the same
consents and agrees, that title to this Receipt
when properly endorsed (in the case of
Receipts 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 a negotiable instrument, provided,
however, that the Depositary,
notwithstanding any notice to the contrary,
may treat the person in whose name this
Receipt is registered on the books of the
Depositary as the absolute owner hereof for
the purpose of determining the person
entitled to distribution of dividends or other
distributions or to any notice provided for in
the Deposit Agreement or for all other
purposes.
10. VALIDITY OF
RECEIPT.
This Receipt in certificated form
shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory
for any purpose, unless this Receipt shall
have been executed by the Depositary by the
manual or facsimile signature of a duly
authorized signatory of the Depositary or, if
a Registrar for the Receipts shall have been
appointed, countersigned by the manual or
facsimile signature of a duly authorized
officer of the Registrar.
11. REPORTS INSPECTION
OF TRANSFER BOOKS.
The Company currently furnishes the
Securities and Exchange Commission
(hereinafter called the Commission) with
certain public reports and documents
required by foreign law or otherwise under
Rule 12g32(b) under the Securities
Exchange Act of 1934. Such reports and
communications will be available for
inspection and copying by holders and
Owners at the public reference facilities
maintained by the Commission located at
000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X.
00000.
The Depositary will make available
for inspection by Owners of Receipts at its
Corporate Trust Office any reports and
communications, including any proxy
soliciting material, received from the
Company which are both (a) received by the
Depositary or the Custodian as the holder of
the Deposited Securities and (b) made
generally available to the holders of such
Deposited Securities by the Company. The
Depositary will also send to Owners of
Receipts copies of such reports when
furnished by the Company pursuant to the
Deposit Agreement. Any such reports and
communications, including any such proxy
soliciting material, furnished to the
Depositary by the Company shall be
furnished in English.
The Depositary will keep books for
the registration of Receipts and transfers of
Receipts which at all reasonable times shall
be open for inspection by the Owners of
Receipts and the Company, provided that
such inspection shall not be for the purpose
of communicating with Owners of Receipts
in the interest of a business or object other
than the business of the Company or a
matter related to the Deposit Agreement or
the Receipts.
12. DIVIDENDS AND
DISTRIBUTIONS.
Whenever the Depositary receives
any cash dividend or other cash distribution
on any Deposited Securities, the Depositary
will, if at the time of receipt thereof any
amounts received in a foreign currency can
in the judgment of the Depositary be
converted on a reasonable basis into United
States dollars transferable to the United
States, and subject to the Deposit
Agreement, convert such dividend or
distribution into dollars and will distribute
the amount thus received (net of the fees of
the Depositary as provided in Section 5.9 of
the Deposit Agreement) to the Owners of
Receipts entitled thereto, provided, however,
that in the event that the Company or the
Depositary is required to withhold and does
withhold from any cash dividend or other
cash distribution in respect of any Deposited
Securities an amount on account of taxes,
the amount distributed to the Owners of the
Receipts evidencing American Depositary
Shares representing such Deposited
Securities shall be reduced accordingly.
Subject to the provisions of Sections
4.11 and 5.9 of the Deposit Agreement,
whenever the Depositary or the Custodian
receives any distribution other than a
distribution described in Sections 4.1, 4.3 or
4.4 of the Deposit Agreement, the
Depositary will cause the securities or
property received by it to be distributed to
the Owners of Receipts entitled thereto, in
any manner that the Depositary may deem
equitable and practicable for accomplishing
such distribution provided, however, that if
in the opinion of the Depositary such
distribution cannot be made proportionately
among the Owners of Receipts entitled
thereto, or if for any other reason the
Depositary deems such distribution not to be
feasible, the Depositary may adopt such
method as it may deem equitable and
practicable for the purpose of effecting such
distribution, including, but not limited to,
the public or private sale of the securities or
property thus received, or any part thereof,
and the net proceeds of any such sale (net of
the fees of the Depositary as provided in
Section 5.9 of the Deposit Agreement) shall
be distributed by the Depositary to the
Owners of Receipts entitled thereto as in the
case of a distribution received in cash
pursuant to Section 4.1 of the Deposit
Agreement. If requested by the Company
and if practicable, the Depositary shall notify
the Company of such sale and give the
Company, subject to Malaysian Law, an
opportunity to participate in any such sale on
the same terms as otherwise available to
third parties.
If any distribution consists of a
dividend in, or free distribution of, Shares,
the Depositary may and shall if the
Company shall so request, distribute to the
Owners of outstanding Receipts entitled
thereto, additional Receipts evidencing an
aggregate number of American Depositary
Shares representing the amount of Shares
received as such dividend or free
distribution subject to the terms and
conditions of the Deposit Agreement with
respect to the deposit of Shares and the
issuance of American Depositary Shares
evidenced by Receipts, including the
withholding of any tax or other
governmental charge as provided in Section
4.11 of the Deposit Agreement and the
payment of the fees of the Depositary as
provided in Section 5.9 of the Deposit
Agreement. In lieu of delivering Receipts
for fractional American Depositary Shares in
any such case, the Depositary will sell the
amount of Shares represented by the
aggregate of such fractions and distribute the
net proceeds, all in the manner and subject
to the conditions set forth in the Deposit
Agreement. If additional Receipts are not so
distributed, each American Depositary Share
shall thenceforth also represent the
additional Shares distributed upon the
Deposited Securities represented thereby.
In the event that the Depositary
determines that any distribution in property
(including Shares and rights to subscribe
therefor) is subject to any tax or other
governmental charge which the Depositary
is obligated to withhold, the Depositary may
by public or private sale dispose of all or a
portion of such property (including Shares
and rights to subscribe therefor) in such
amounts and in such manner as the
Depositary deems necessary and practicable
to pay any such taxes or charges, and the
Depositary shall distribute the net proceeds
of any such sale after deduction of such
taxes or charges to the Owners of Receipts
entitled thereto.
13. CONVERSI0N OF
FOREIGN CURRENCY.
Whenever the Depositary shall
receive foreign currency, by way of
dividends or other distributions or the net
proceeds from the sale of securities, property
or rights, and if at the time of the receipt
thereof the foreign currency so received can
in the judgment of the Depositary be
converted on a reasonable basis into Dollars
and the resulting Dollars transferred to the
United States, the Depositary shall convert
or cause to be converted, by sale or in any
other manner that it may determine, such
foreign currency into Dollars, and such
Dollars shall be distributed to the Owners
entitled thereto subject to Section 4.01 of the
Deposit Agreement or, if the Depositary
shall have distributed any warrants or other
instruments which entitle the holders thereof
to such Dollars, then to the holders of such
warrants and/or instruments upon surrender
thereof for cancellation. Such distribution
may be made upon an averaged or other
practicable basis without regard to any
distinctions among Owners on account of
exchange restrictions, the date of delivery of
any Receipt or otherwise and shall be net of
any expenses of conversion into Dollars
incurred by the Depositary as provided in
Section 5.9 of the Deposit Agreement.
If such conversion 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.
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 transferable to the United States, or
if any approval or license of any government
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 uninvested and
without liability for interest thereon for the
respective accounts of, the Owners entitled
to receive the same.
If any such conversion of foreign
currency, in whole or in part, cannot be
effected for distribution to some of the
Owners entitled thereto, the Depositary may
in its discretion make such conversion and
distribution in Dollars to the extent
permissible to the Owners entitled thereto
and may distribute the balance of the foreign
currency received by the Depositary to, or
hold such balance uninvested and without
liability for interest thereon for the
respective accounts of, the Owners entitled
thereto.
14. RIGHTS.
In the event that the Company shall
offer or cause to be offered to the holders of
any Deposited Securities any rights to
subscribe for additional Shares or any rights
of any other nature, the Depositary shall
have discretion as to the procedure to be
followed in making such rights available to
any Owners or in disposing of such rights on
behalf of any Owners and making the net
proceeds available in Dollars to such
Owners or, if by the terms of such rights
offering or, for any other reason, the
Depositary may not either make such rights
available to any Owners or dispose of such
rights and make the net proceeds available to
such Owners, then the Depositary shall
allow the rights to lapse provided, however,
if at the time of the offering of any rights the
Depositary determines in its discretion that it
is lawful and feasible to make such rights
available to all Owners or to certain Owners
but not to other Owners, the Depositary may
distribute, to any Owner to whom it
determines the distribution to be lawful and
feasible, in proportion to the number of
American Depositary Shares held by such
Owner, warrants or other instruments
therefor in such form as it deems
appropriate. If the Depositary determines in
its discretion that it is not lawful and feasible
to make such rights available to certain
Owners, it may sell the rights or warrants or
other instruments in proportion to the
number of American Depositary Shares held
by the Owners to whom it has determined it
may not lawfully or feasibly make such
rights available, and allocate the net
proceeds of such sales (net of the fees of the
Depositary as provided in Section 5.9 of the
Deposit Agreement) for the account of such
Owners otherwise entitled to such rights,
warrants or other instruments, upon an
averaged or other practical basis without
regard to any distinctions among such
Owners because of exchange restrictions or
the date of delivery of any Receipt or
otherwise. The Depositary shall not be
responsible for any failure to determine that
it may be lawful or feasible to make such
rights available to Owners in general or any
Owner in particular.
If an Owner of Receipts requests the
distribution of warrants or other instruments
in order to exercise the rights allocable to
the American Depositary Shares of such
Owner under the Deposit Agreement, the
Depositary will make such rights available
to such Owner upon written notice from the
Company to the Depositary that (a) the
Company has elected in its sole discretion to
permit such rights to be exercised and (b)
such Owner has executed such documents as
the Company has determined in its sole
discretion are reasonably required under
applicable law. Upon instruction pursuant
to such warrants or other instruments to the
Depositary from such Owner to exercise
such rights, upon payment by such Owner to
the Depositary for the account of such
Owner of an amount equal to the purchase
price of the Shares to be received upon the
exercise of the rights, and upon payment of
the fees of the Depositary as set forth in such
warrants or other instruments, the
Depositary shall, on behalf of such Owner,
exercise the rights and purchase the Shares,
and the Company shall cause the Shares so
purchased to be delivered to the Depositary
on behalf of such Owner. As agent for such
Owner, the Depositary will cause the Shares
so purchased to be deposited pursuant to
Section 2.2 of the Deposit Agreement, and
shall, pursuant to Section 2.3 of the Deposit
Agreement, execute and deliver to such
Owner Restricted Receipts.
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 Owners and
sell the securities upon the exercise of such
rights, the Depositary will not offer such
rights to the Owners unless and until such a
registration statement is in effect, or unless
the offering and sale of such securities to the
Owners of such Receipts are exempt from
registration under the provisions of such
Act.
15. RECORD DATES.
Whenever any cash dividend or other
cash distribution shall become payable or
any distribution other than cash shall be
made, or whenever rights shall be issued
with respect to the Deposited Securities, or
whenever for any reason the Depositary
causes a change in the number of Shares that
are represented by each American
Depositary Share, or whenever the
Depositary shall receive notice of any
meeting of holders of Shares or other
Deposited Securities, the Depositary shall
fix a record date (a) for the determination of
the Owners of Receipts who shall be (i)
entitled to receive such dividend,
distribution or rights or the net proceeds of
the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights
at any such meeting, or (b) on or after which
each American Depositary Share will
represent the changed number of Shares,
subject to the provisions of the Deposit
Agreement.
16. VOTING OF
DEPOSITED
SECURITIES.
(i) As soon as practicable
after receipt of notice of any meeting or
solicitations of consents or proxies of
holders of Shares or other Deposited
Securities, the Depositary shall mail to the
Owners a notice containing (a) such
information as is contained in the notice
received by the Depositary, (b) a statement
that each Owner at the close of business on a
specified record date will be entitled, subject
to paragraph (23) hereof and any applicable
provision of Malaysian law and the
provisions of the Memorandum and Articles
of Association of the Company and the
provisions of or governing Deposited
Securities, to instruct the Depositary as to
the exercise of voting rights, if any,
pertaining to the Deposited Securities
represented by the American Depositary
Shares evidenced by such Owners Receipts
and (c) a statement as to the manner in
which such instructions may be given,
including, when applicable, an express
indication that instructions may be given (or,
if applicable, deemed given in accordance
with subparagraph (ii) of this paragraph if no
instruction is received) to the Depositary to
give a discretionary proxy to a person
designated by the Company. Upon the
written request of an Owner on such record
date, received on or before the date
established by the Depositary for such
purpose, the Depositary shall endeavor
insofar as practicable and permitted under
applicable law and the provisions of the
Memorandum and Articles of Association of
the Company and the provisions of or
governing Deposited Securities to vote or
cause to be voted the Deposited Securities
represented by the American Depositary
Shares evidenced by such Owners Receipts
in accordance with any nondiscretionary
instructions set forth in such request,
including the instruction to give a
discretionary proxy to a person designated
by the Company. The Depositary shall not
itself exercise any voting discretion over any
Deposited Securities.
(ii) If after complying
with the procedures set forth in this
paragraph the Depositary does not receive
instructions from the Owner of a Receipt on
or before the date established by the
Depositary for such purpose, the Depositary
shall give a discretionary proxy for the
Shares evidenced by such Receipt to a
person designated by the Company.
(iii) There can be no assurance that
Owners generally or any Owner in particular
will receive the notice described in this
Article sufficiently prior to the Instruction
Date to ensure that the Depositary will vote
the Shares or Deposited Securities in
accordance with the provisions set forth in
this Article.
17. CHANGES AFFECTING
DEPOSITED
SECURITIES.
In circumstances where the
provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in
nominal value, change in par value, splitup,
consolidation, or any other reclassification
of Deposited Securities, or upon any
recapitalization, reorganization, merger or
consolidation, or sale of assets affecting the
Company or to which it is a party, any
securities which shall be received by the
Depositary or a Custodian in exchange for or
in conversion of or in respect of Deposited
Securities shall be treated as new Deposited
Securities under the Deposit Agreement, and
American Depositary Shares shall
thenceforth represent the new Deposited
Securities so received in exchange or
conversion, unless additional Receipts are
delivered pursuant to the following sentence.
In any such case the Depositary may with
the Companys approval and shall if the
Company shall so request, execute and
deliver additional Receipts as in the case of
a dividend on the Shares, or call for the
surrender of outstanding Receipts to be
exchanged for new Receipts specifically
describing such new Deposited Securities.
18. LIABILITY OF THE
COMPANY AND
DEPOSITARY.
Neither the Depositary nor the
Company nor any of their directors,
employees, agents or affiliates shall incur
any liability to any Owner or holder of any
Receipt or any other person, if by reason of
any provision of any present or future law of
the United States or any other country, or of
any other governmental or regulatory
authority, or by reason of any provision,
present or future, of the Memorandum and
Articles of Association of the Company, or
by reason of any act of God or war or other
circumstances beyond its control, the
Depositary or the Company or any of their
directors, employees, agents or affiliates
shall be prevented or forbidden from or be
subject to any civil or criminal penalty on
account of doing or performing any act or
thing which by the terms of the Deposit
Agreement it is provided shall be done or
performed nor shall the Depositary or the
Company nor their agents incur any liability
to any Owner or holder of a Receipt or any
other person by reason of any
nonperformance or delay, caused as
aforesaid, in the performance of any act or
thing which by the terms of the Deposit
Agreement it is provided shall or may be
done or performed, or by reason of any
exercise of, or failure to exercise, any
discretion provided for in the Deposit
Agreement. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2, or
4.3 of the Deposit Agreement, or an offering
or distribution pursuant to Section 4.4 of the
Deposit Agreement, or for any other reason,
such distribution or offering may not be
made available to Owners of Receipts, and
the Depositary may not dispose of such
distribution or offering on behalf of such
Owners and make the net proceeds available
to such Owners, then the Depositary shall
not make such distribution or offering, and
shall allow any rights, if applicable, to lapse.
The Company and the Depositary shall not
be liable to any Owner for such distribution
or offering not being made available to the
Owners by reason of the terms of the
distribution or offer or for any other reason.
Neither the Company nor the Depositary
assumes any obligation nor shall either of
them or the agents of either of them be
subject to any liability under the Deposit
Agreement to Owners or holders of
Receipts, except that they agree to perform
their obligations specifically set forth in the
Deposit Agreement without gross negligence
or bad faith. The Depositary or its agents
shall not be subject to any liability with
respect to the validity or worth of the
Deposited Securities. Neither the
Depositary nor the Company nor their agents
shall be under any obligation to appear in,
prosecute or defend any action, suit, or other
proceeding in respect of any Deposited
Securities or 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 shall be furnished as often as may
be required, and the Custodian shall not 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 nonaction by it in reliance upon the
advice of or information from legal counsel,
accountants, any person presenting Shares
for deposit, any Owner or 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, the
Company, the Custodian and their agents
may rely and shall be protected in acting
upon any written notice, request or other
document believed by any of them to be
genuine and to have been signed and
presented by the proper party or parties. 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 nonaction is in good faith and
in accordance with the terms of the Deposit
Agreement. The Depositary shall not be
liable for any acts or omissions made by a
successor depositary whether in connection
with a previous act or omission of the
Depositary or in connection with a matter
arising wholly after the removal or
resignation of the Depositary, provided that
the Depositary exercised its best judgment
and good faith while it acted as Depositary.
The Company agrees to indemnify the
Depositary, its directors, employees, agents
and affiliates and any Custodian against, and
hold each of them harmless from, any
liability or expense (including, but not
limited to, the reasonable fees and expenses
of counsel) which may arise out of acts
performed or omitted, in accordance with
the provisions of the Deposit Agreement and
of the Receipts, as the same may be
amended, modified, or supplemented from
time to time, (i) by either the Depositary or a
Custodian or their respective directors,
employees, agents and affiliates, except for
any liability or expense arising out of the
negligence or bad faith of either of them, or
(ii) by the Company or any of its directors,
employees, agents and affiliates. No
disclaimer of liability under the Securities
Act of 1933 is intended by any provision of
the Deposit Agreement.
19. RESIGNATION AND
REMOVAL OF THE
DEPOSITARY
APPOINTMENT OF
SUCCESSOR
CUSTODIAN.
The Depositary, at its sole discretion,
may at any time resign as Depositary
thereunder by written notice of its election
so to do delivered to the Company, such
resignation to take effect upon the
appointment of a successor depositary and
its acceptance of such appointment as
provided in Section 5.4 of the Deposit
Agreement (which appointment shall be on
terms reasonably satisfactory to the
Company). The Depositary may at any time
be removed by the Company, at its sole
discretion, by written notice of such
removal, effective upon the appointment of a
successor depositary and its acceptance of
such appointment as provided in Section 5.4
of the Deposit Agreement. Whenever the
Depositary in its discretion determines that it
is in the best interest of the Owners of
Receipts to do so, it may, with the written
approval of the Company, appoint a
substitute or additional custodian or
custodians.
20. AMENDMENT.
The form of the Receipts and any
provisions of the Deposit Agreement may at
any time and from time to time be amended
by agreement between the Company and the
Depositary in any respect which they may
deem necessary or desirable (including,
without limitation, any change in the number
of Shares that are represented by each
American Depositary Share). Any
amendment which shall impose or increase
any fees or charges (other than taxes and
other governmental charges), or which shall
otherwise prejudice any substantial existing
right of Owners of Receipts, shall, however,
not become effective as to outstanding
Receipts until the expiration of thirty days
after notice of such amendment shall have
been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the
time any amendment so becomes effective
shall be deemed, by continuing to hold such
Receipt, 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
Owner of any Receipt to surrender such
Receipt and receive therefor the Deposited
Securities represented thereby except in
order to comply with mandatory provisions
of applicable law.
21. TERMINATION OF
DEPOSIT AGREEMENT.
The Depositary shall at any time at
the direction of the Company terminate the
Deposit Agreement by mailing notice of
such termination to the Owners of all
Receipts then outstanding at least 30 days
prior to the date fixed in such notice for such
termination. The Depositary may likewise
terminate the Deposit Agreement by mailing
notice of such termination to the Company
and the Owners of all Receipts then
outstanding if at any time 90 days shall have
expired after the Depositary shall have
delivered to the Company a written notice of
its election to resign and a successor
depositary shall not have been appointed and
accepted its appointment as provided in the
Deposit Agreement. On and after the date of
termination, the Owner of a Receipt will,
upon (a) surrender of such Receipt at the
Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the
surrender of Receipts referred to in Section
2.5 of the Deposit Agreement, and (c)
payment of any applicable taxes or
governmental charges, be entitled to
delivery, to him or upon his order, of the
amount of Deposited Securities represented
by the American Depositary Shares
evidenced by such Receipt. If any Receipts
shall remain outstanding after the date of
termination, the Depositary thereafter shall
discontinue the registration of transfers of
Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall
not give any further notices or perform any
further acts under the Deposit Agreement,
except that the Depositary shall continue to
collect dividends and other distributions
pertaining to Deposited Securities, shall sell
rights as provided in the Deposit Agreement,
and shall continue to deliver Deposited
Securities, together with any dividends or
other distributions received with respect
thereto and the net proceeds of the sale of
any rights or other property, in exchange for
Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the
Depositary for the surrender of a Receipt,
any expenses for the account of the Owner
of such Receipt in accordance with the terms
and conditions of the Deposit Agreement,
and any applicable taxes or governmental
charges). At any time after the expiration of
one year from the date of termination, the
Depositary may sell the Deposited Securities
then held under the Deposit Agreement and
may thereafter hold uninvested the net
proceeds of any such sale, together with any
other cash then held by it thereunder,
unsegregated and without liability for
interest, for the pro rata benefit of the
Owners of Receipts which have not
theretofore been surrendered, such Owners
thereupon becoming general creditors of the
Depositary with respect to such net
proceeds. After making such sale, the
Depositary shall be discharged from all
obligations under the Deposit Agreement,
except to account for such net proceeds and
other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the
Owner of such Receipt in accordance with
the terms and conditions of the Deposit
Agreement, and any applicable taxes or
governmental charges). Upon the
termination of the Deposit Agreement, the
Company shall be discharged from all
obligations under the Deposit Agreement
except for its obligations to the Depositary
with respect to indemnification, charges, and
expenses.
22. COMPLIANCE WITH
U.S. SECURITIES LAWS.
Notwithstanding anything in this
Receipt or the Deposit Agreement to the
contrary, the Company and the Depositary
have each agreed that it will not exercise any
rights it has under the Deposit Agreement or
the Receipt to permit the withdrawal or
delivery of Deposited Securities in a manner
which would violate the United States
securities laws, including, but not limited to
Section I.A(1) of the General Instructions to
the Form F6 Registration Statement, as
amended from time to time, under the
Securities Act of 1933.
23. DISCLOSURE OF
INTERESTS.
The Company may from time
to time request Owners or former Owners to
provide information as to the capacity in
which they own or owned Receipts and
regarding the identity of any other persons
then or previously interested in such
Receipts and the nature of such interest and
various other matters. Each Owner agrees to
provide any information requested by the
Company or the Depositary pursuant to this
paragraph (23) whether or not such person is
still an Owner at the time of such request.
The Depositary agrees, at the Companys
expense, to use reasonable efforts to comply
with written instructions received from the
Company requesting that the Depositary
forward any such requests to Owners or
former Owners and, at the Companys
expense, to forward to the Company any
responses to such requests received by the
Depositary.
The Company has advised
the Depositary and each Owner agrees that
pursuant to the Companies Act, 1965 of
Malaysia an Owner (i) who is or becomes
interested (within the meaning of the
Companies Act, 1965 of Malaysia or any
reenactment or amendment thereof (the
Act)) in 2% or more of the outstanding
Shares or (ii) who is or becomes a
substantial shareholder of the Company
within the meaning of the Act (a Substantial
Shareholder) or (iii) who is aware that
another person for whom it holds a Receipt
is so interested or (iv) who is aware that
another person for whom it holds a Receipt
is a Substantial Shareholder, shall within
fourteen days or such other time specified in
the Act, after becoming (i) interested in 2%
or more of the outstanding Shares or (ii) a
Substantial Shareholder or (iii) aware that it
holds a Receipt for a person so interested or
(iv) aware that another person for whom it
holds a Receipt is a Substantial Shareholder,
and thereafter upon any changes in such
interests, notify the Company and the Kuala
Lumpur Stock Exchange as required by the
Act. Each Owner further agrees to make
such disclosure of interests in Shares of the
Company as may be required to be made by
such Owner under any laws, regulations or
codes of practice applicable in Malaysia
(including but not limited to the Malaysian
Code on Takeovers and Mergers, 1987 and
any successor thereto) whether or not the
same may be enforceable against such
Owner.
The Depositary agrees that it
shall cooperate with the Company in
enforcing the provisions of the Act should
such legislation apply to the Company, and
any other laws, regulations or codes of
practice in Malaysia (including but not
limited to the Malaysian Code on Takeovers
and Mergers, 1987 and any successor
thereto) from time to time relating to
disclosure of interests, including sanctions
that may be invoked in the event an Owner
fails to provide certain requested
information concerning interests in Receipts
or Deposited Securities. The Depositary has
been advised by the Company that such
sanctions may include limitations on the
transfer of such Shares and limitations on
the payment of dividends on such Shares.
24. LIMITATION ON
PERCENTAGE OF
OUTSTANDING SHARES
THAT MAY BE
DEPOSITED.
Notwithstanding anything
herein to the contrary, the number of Shares
on deposit under the Deposit Agreement
shall not exceed 5% for so long as
Malaysian law requires (or any other
percentage limitation imposed under
Malaysian laws, regulations or codes of
practice) of the total number of Shares
outstanding from time to time, which total
number of Shares outstanding as of the date
of the Deposit Agreement is approximately
704,400,000. If substitute or additional
custodians are appointed pursuant to Section
5.5 of the Deposit Agreement, the aggregate
number of Shares on deposit with all
Custodians shall not exceed any such
limitation on the total number of Shares
outstanding from time to time. The
Company shall from time to time and upon
request inform the Depositary in writing of
any increase or decrease in such total
number and of any change in Malaysian law
relating to such limitation provided,
however, that, notwithstanding any such
decrease, the Depositary shall be under no
obligation to cause a corresponding decrease
in the number of Shares on deposit under the
Deposit Agreement. The Depositary shall
not be responsible for any change in the
limit of Shares to be accepted for deposit
under the Deposit Agreement until it has
received actual notice of such change in
writing from the Company and has had a
reasonable opportunity to so notify the
Custodian.
49
89710_8.DOC
