EXHIBIT 4.3
EMM DRAFT OF OCTOBER 13, 2005
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SUNTECH POWER HOLDINGS CO., LTD.
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY
RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF _______________, 2005
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EXHIBIT 4.3
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS..............................................1
SECTION 1.1 American Depositary Shares..........................1
SECTION 1.2 Article; Section....................................2
SECTION 1.3 Beneficial Owner....................................2
SECTION 1.4 Commission..........................................2
SECTION 1.5 Company.............................................2
SECTION 1.6 Custodian...........................................2
SECTION 1.7 deposit, deliver, execute, issue, register,
surrender, transfer, withdraw or cancel.............2
SECTION 1.8 Deposit Agreement...................................2
SECTION 1.9 Depositary; Corporate Trust Office..................3
SECTION 1.10 Deposited Securities................................3
SECTION 1.11 Dollars.............................................3
SECTION 1.12 Foreign Registrar...................................3
SECTION 1.13 Owner...............................................3
SECTION 1.14 Receipts............................................3
SECTION 1.15 Registrar...........................................3
SECTION 1.16 Restricted Securities...............................3
SECTION 1.17 Securities Act......................................4
SECTION 1.18 Shares..............................................4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS...........................4
SECTION 2.1 Form and Transferability of Receipts................4
SECTION 2.2 Deposit of Shares...................................5
SECTION 2.3 Execution and Delivery of Receipts..................5
SECTION 2.4 Transfer of Receipts; Combination and Split-up of
Receipts............................................5
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares......5
SECTION 2.6 Limitations on Execution and Delivery, Transfer
and Surrender of Receipts...........................5
SECTION 2.7 Lost Receipts, etc..................................5
SECTION 2.8 Cancellation and Destruction of Surrendered
Receipts............................................5
SECTION 2.9 Pre-Release of Receipts.............................5
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ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS
OF RECEIPTS............................................................5
SECTION 3.1 Filing Proofs, Certificates and Other Information...5
SECTION 3.2 Liability of Owner for Taxes........................5
SECTION 3.3 Warranties on Deposit of Shares.....................5
ARTICLE 4. THE DEPOSITED SECURITIES.................................5
SECTION 4.1 Cash Distributions..................................5
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.....5
SECTION 4.3 Distributions in Shares.............................5
SECTION 4.4 Rights..............................................5
SECTION 4.5 Conversion of Foreign Currency......................5
SECTION 4.6 Fixing of Record Date...............................5
SECTION 4.7 Voting of Deposited Securities......................5
SECTION 4.8 Changes Affecting Deposited Securities..............5
SECTION 4.9 Reports.............................................5
SECTION 4.10 Lists of Owners.....................................5
SECTION 4.11 Withholding.........................................5
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY...........5
SECTION 5.1 Maintenance of Office and Transfer Books by the
Depositary..........................................5
SECTION 5.2 Prevention or Delay in Performance by the
Depositary or Company...............................5
SECTION 5.3 Obligations of the Depositary, the Custodian and
the Company.........................................5
SECTION 5.4 Resignation and Removal of the Depositary...........5
SECTION 5.5 The Custodians......................................5
SECTION 5.6 Notices and Reports.................................5
SECTION 5.7 Distribution of Additional Shares, Rights, etc......5
SECTION 5.8 Indemnification.....................................5
SECTION 5.9 Charges of Depositary...............................5
SECTION 5.10 Retention of Depositary Documents...................5
SECTION 5.11 Exclusivity.........................................5
SECTION 5.12 List of Restricted Securities Owners................5
ARTICLE 6. AMENDMENT AND TERMINATION................................5
SECTION 6.1 Amendment...........................................5
SECTION 6.2 Termination.........................................5
ARTICLE 7. MISCELLANEOUS............................................5
SECTION 7.1 Counterparts........................................5
SECTION 7.2 No Third Party Beneficiaries........................5
SECTION 7.3 Severability........................................5
SECTION 7.4 Owners and Beneficial Owners as Parties; Binding
Effect..............................................5
SECTION 7.5 Notices.............................................5
SECTION 7.6 Governing Law.......................................5
SECTION 7.7 Compliance with U.S. Securities Laws................5
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent
for Service of Process..............................5
SECTION 7.9 Arbitration.........................................5
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of ________________, 2005 among SUNTECH
POWER HOLDINGS CO., LTD., incorporated under the laws of the Cayman Islands
(herein called the Company), THE BANK OF NEW YORK, a New York banking
corporation (herein called the Depositary), and all Owners and Beneficial Owners
from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in
the form of Exhibit A annexed hereto, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1. DEFINITIONS.
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A annexed hereto, until there shall occur
a distribution upon Deposited Securities covered by Section 4.3 or a change in
Deposited Securities covered by Section 4.8 with respect to which additional
Receipts are not executed and delivered, and thereafter American Depositary
Shares shall evidence the amount of Shares or Deposited Securities specified in
such Sections.
SECTION 1.2 Article; Section.
Wherever references are made in this Deposit Agreement to an "Article"
or "Articles" or to a "Section" or "Sections", such references shall mean an
article or articles or a section or sections of this Deposit Agreement, unless
otherwise required by the context.
SECTION 1.3 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.4 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.5 Company.
The term "Company" shall mean Suntech Power Holdings Co., Ltd.,
incorporated under the laws of the Cayman Islands, and its successors.
SECTION 1.6 Custodian.
The term "Custodian" shall mean the principal Hong Kong office of The
Hongkong and Shanghai Banking Corporation Limited, as agent of the Depositary
for the purposes of this Deposit Agreement, and any other firm or corporation
which may hereafter be appointed by the Depositary pursuant to the terms of
Section 5.5, as substitute or additional custodian or custodians hereunder, as
the context shall require and shall also mean all of them collectively.
SECTION 1.7 deposit, deliver, execute, issue, register, surrender,
transfer, withdraw or cancel.
The terms "deposit", "deliver", "execute", "issue", "register",
"surrender", "transfer", "withdraw" or "cancel", when used with respect to
Shares, shall refer, where the context requires, to an entry or entries or an
electronic transfer or transfers in an account or accounts maintained by
institutions authorized under the laws of the Cayman Islands to effect transfers
of securities and not to the physical transfer of certificates representing the
Shares.
SECTION 1.8 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
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SECTION 1.9 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
SECTION 1.10 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.5.
SECTION 1.11 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.12 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.13 Owner.
The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.14 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.15 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed by the Depositary to register Receipts and transfers of Receipts as
herein provided.
SECTION 1.16 Restricted Securities.
The term "Restricted Securities" shall mean collectively or
individually, as the context may require, Shares, or Receipts representing such
Shares, which are acquired directly or indirectly from the Company or its
affiliates (as defined in Rule 144 under the Securities Act) in a transaction or
chain of transactions not involving any public offering or which are subject to
resale limitations under Regulation D under that Act or both, or which are held
directly or indirectly by an officer, director (or persons performing similar
functions) or other affiliate of the Company, or which would require
registration under the Securities Act in connection with the public offer and
sale thereof in the United
States, or which are subject to other restrictions on sale or deposit under the
laws of the United States, the People's Republic of China, the Cayman Islands or
Hong Kong, or under a shareholder agreement or the Memorandum and Articles of
Association of the Company unless the sale of such Shares in the United States
would be covered by an effective registration statement under the Securities
Act.
SECTION 1.17 Securities Act.
The term "Securities Act" shall mean the United States Securities Act
of 1933, as from time to time amended.
SECTION 1.18 Shares.
The term "Shares" shall mean Ordinary Shares in registered form of the
Company, heretofore validly issued and outstanding and fully paid, nonassessable
and that were not issued in violation of any pre-emptive rights of the holders
of outstanding Shares or hereafter validly issued and outstanding and fully
paid, nonassessable and that were not issued in violation of any pre-emptive
rights of the holders of outstanding Shares or interim certificates representing
such Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary;
provided, however, that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are countersigned by the
manual or facsimile signature of a duly authorized officer of the Registrar. The
Depositary shall maintain books on which each Receipt so executed and delivered
as hereinafter provided and the transfer of each such Receipt shall be
registered. Receipts bearing the manual or facsimile signature of a duly
authorized signatory of the Depositary who was at any time a proper signatory of
the Depositary shall bind the Depositary, notwithstanding that such signatory
has ceased to hold such office prior to the execution and delivery of such
Receipts by the Registrar or did not hold such office on the date of issuance of
such Receipts.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange (which, for all purposes
hereof, shall include the New York Stock
Exchange) upon which American Depositary Shares may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of New York; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement, Shares
or evidence of rights to receive Shares may be deposited by delivery thereof to
any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may reasonably be required by the
Depositary or the Custodian in accordance with the provisions of this Deposit
Agreement, and, if the Depositary requires, together with a written order
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order, a Receipt or Receipts for the
number of American Depositary Shares representing such deposit. 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 the Cayman Islands or the People's Republic of China which is then performing
the function of the regulation of currency exchange. If required by the
Depositary, Shares presented for deposit at any time, whether or not the
transfer books of the Company or the Foreign Registrar, if applicable, are
closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or at such other place or
places as the Depositary shall determine.
SECTION 2.3 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Company or the Foreign
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the Company or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
above specified, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees and expenses of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.9, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may, with notice given as promptly as practicable to
the Company, appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of Receipts at designated transfer offices
on behalf of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary. The Depositary
shall require each co-transfer agent that it appoints under this Section 2.4 to
give notice in writing to the Depositary accepting such appointment and agreeing
to abide by the applicable terms of this Deposit Agreement.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
Upon surrender at the Corporate Trust Office of the Depositary
of a Receipt for the purpose of withdrawal of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and
upon payment of the fee of the Depositary for the surrender of Receipts as
provided in Section 5.9 and payment of all taxes and governmental charges
payable in connection with such surrender and withdrawal of the Deposited
Securities, and subject to the terms and conditions of this Deposit Agreement,
the Owner of such Receipt shall be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates for Shares in the
name of such Owner or as ordered by him or by certificates properly endorsed or
accompanied by proper instruments of transfer to such Owner or as ordered by him
and (b) any other securities, property and cash to which such Owner is then
entitled in respect of such Receipts to such Owner or as ordered by him. Such
delivery shall be made, as hereinafter provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided,
the amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery to such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or distributions with respect to the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, or of any proceeds
of sale of any dividends, distributions or rights, which may at the time be held
by the Depositary.
At the request, risk and expense of any Owner so surrendering a
Receipt, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates, if applicable, and other proper
documents of title for, the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt to the Depositary for delivery at
the Corporate Trust Office of the Depositary. Such direction shall be given by
letter or, at the request, risk and expense of such Owner, by cable, telex or
facsimile transmission.
The Depositary shall not deliver the Deposited Securities except (i)
upon surrender of Receipts under this Section 2.5, (ii) in a surrender of the
Deposited Securities to the Company or its agent in a transaction to which
Section 4.8 applies or (iii) in connection with a sale of the Deposited
Securities permitted under Section 3.2, 4.3, 4.4, 4.11 or 6.2.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax, stamp duty 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 herein provided, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Depositary
may establish consistent with the provisions of this Deposit Agreement,
including, without limitation, this Section 2.6.
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 are closed as provided in Section 5.1, 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 this Deposit Agreement, or for any other reason, subject to the
provisions of Section 7.7. Notwithstanding any other provision of this Deposit
Agreement or the Receipts, the surrender of outstanding Receipts and withdrawal
of Deposited Securities may not be suspended subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting, or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
and (iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities.
Without limitation of the foregoing, the Depositary shall not knowingly accept
for deposit under this Deposit Agreement any Shares required to be registered
under the provisions of the Securities Act for public sale in the United States,
unless a registration statement is in effect as to such Shares.
SECTION 2.7 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.9 Pre-Release of Receipts.
The Depositary may, notwithstanding Section 2.3, execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release").
The Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial rights, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts,
as the case may be), other than in satisfaction of such Pre-Release, (b) at all
times fully collateralized with cash, U.S. government securities or such other
collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (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 Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; provided, however, that
the Depositary reserves the right to disregard such limit from time to time as
it deems reasonably appropriate, and may, with the prior written consent of the
Company, change such limit for purposes of general application. The Depositary
will also set Dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case-by-case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or Beneficial
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 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 in writing, the Depositary shall, as promptly as practicable, provide
the Company, at the expense of the Company, with copies of any such proofs,
certificates or other information it receives pursuant to this section, unless
prohibited by applicable law.
SECTION 3.2 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner of such Receipt to the Depositary. The Depositary
may refuse to effect any transfer of such 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 thereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by such 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 of such Receipt shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor, if applicable, are validly issued, fully paid, nonassessable and were
not issued in violation of any pre-emptive 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 the Shares are eligible
for deposit in accordance with this Deposit Agreement and the General
Instructions to Form F-6 under the Securities Act, and Receipts evidencing
American Depositary Shares representing the Shares would not be, Restricted
Securities. All representations and warranties deemed made under this Section
3.3 shall survive the deposit of Shares and delivery or surrender of Receipts.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.5, convert such dividend or distribution into Dollars
and shall distribute the amount thus received (net of the fees and expenses of
the Depositary as provided in Section 5.9 hereof, if applicable) to the Owners
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively; provided,
however, that in the event that the Company or the Depositary shall be required
to withhold and does withhold from such cash dividend or such other cash
distribution an amount on account of taxes, the amount distributed to the Owner
of the Receipts evidencing American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
The Company or its agent will remit to the
appropriate governmental agency in the Cayman Islands or the People's Republic
of China all amounts withheld and owing to such agency. The Depositary will
forward to the Company or its agent such information from its records as the
Company may reasonably request to enable the Company or its agent to file
necessary reports with governmental agencies, and the Depositary or the Company
or its agent may file any such reports necessary to obtain benefits under the
applicable tax treaties for the Owners of Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9, whenever
the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4, the Depositary shall, subject to all
applicable laws, cause the securities or property received by it to be
distributed to the Owners entitled thereto, after deduction or upon payment of
any fees and expenses of the Depositary or any taxes or other governmental
charges, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, 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 entitled thereto,
or if for any other reason (including, but not limited to, any requirement that
the Company or the Depositary withhold an amount on account of taxes or other
governmental charges or that such securities must be registered under the
Securities Act in order to be distributed to Owners or Beneficial Owners) 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 and expenses of the
Depositary as provided in Section 5.9) shall be distributed by the Depositary to
the Owners entitled thereto as in the case of a distribution received in cash.
The Depositary may refuse to effect any distribution of securities under this
Section 4.2 unless it has received an opinion of United States counsel for the
Company that is satisfactory to the Depositary that the distribution does not
require registration under the Securities Act.
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Company shall so request in writing, distribute to the Owners of outstanding
Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively,
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 and the payment of fees and
expenses of the Depositary as provided in Section 5.9. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary shall use reasonable efforts to sell the amount of Shares represented
by the aggregate of such fractions and distribute any net proceeds to the Owners
entitled to them, all in the manner and subject to the conditions described in
Section 4.1. 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.
SECTION 4.4 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
entitled to them or in disposing of such rights on behalf of any Owners
otherwise entitled to them and making the net proceeds available 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. If at the time of the offering of
any rights the Depositary determines in its reasonable 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.
In circumstances in which rights would otherwise not be distributed,
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 hereunder, 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.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
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 and
expenses of the Depositary and any other charges 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 this Deposit Agreement, and shall, pursuant
to Section 2.3 of this Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
section, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such laws.
If the Depositary determines in its reasonable discretion that it is
not lawful and feasible to make such rights available to all or certain Owners,
it may sell the rights, 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 and expenses of the
Depositary as provided in Section 5.9 and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of this 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 will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act with respect to a distribution to Owners
or are registered under the provisions of such Act; provided, however, that
nothing in this Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under the Securities Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration; provided, however, that the Company
will have no obligation to cause its counsel to issue such opinion at the
request of such Owner.
The Depositary shall not be responsible for any reasonable failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
SECTION 4.5 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian 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 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.
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 or the Custodian 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
without excessively burdensome or otherwise unreasonable efforts, or if any such
approval or license is not obtained within a reasonable period as determined by
the Depositary, or if there are foreign exchange controls in place that prohibit
such conversion, 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.
SECTION 4.6 Fixing of Record Date.
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
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which date shall be the same date, to the extent
practicable, as the record date for the Deposited
Securities or if different, as close thereto as practicable (a) for the
determination of the Owners 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, (b) on or
after which each American Depositary Share will represent the changed number of
Shares or (c) for any other matter. Subject to the provisions of Sections 4.1
through 4.5 and to the other terms and conditions of this Deposit Agreement, the
Owners on such record date shall be entitled, as the case may be, to receive the
amount distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively and to give
voting instructions and to act in respect of any other such matter.
SECTION 4.7 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the discretion of the Depositary and shall contain
(a) such information as is contained in such notice of meeting, and (b) a
statement that the Owners as of the close of business on a specified record date
will be entitled, subject to any applicable provision of the People's Republic
of China and Cayman Islands law and of the Memorandum and Articles of
Association of the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares and (c) a
statement as to the manner in which such instructions may be given. Upon the
written request of an Owner of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose (the "Instruction
Date"), the Depositary shall endeavor, in so far as practicable, to vote or
cause to be voted the amount of Shares or other Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt in accordance with
the instructions set forth in such request. The Depositary shall not vote or
attempt to exercise the right to vote that attaches to such Shares or other
Deposited Securities other than in accordance with such instructions.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
if the Company requests the Depositary to act under the preceding paragraph, the
Company shall give the Depositary notice of any such meeting not less than 30
days prior to the meeting date.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the first paragraph of this
Section 4.7 sufficiently prior to the Instruction Date to ensure that the
Depositary will vote the Shares or Deposited Securities in accordance with the
provisions of that paragraph.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not apply,
upon any change in nominal value, change in par value, split-up, 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 this Deposit Agreement, and American Depositary Shares shall thenceforth
represent, in addition to the existing Deposited Securities, if any, 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 execute and deliver additional Receipts as in the case of a
dividend in Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.9 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office, as promptly as practicable after receipt, any reports
and communications, including any proxy soliciting material, received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send to the
Owners copies of such reports furnished by the Company pursuant to Section 5.6.
Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the
expense of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
The Company or its agent will remit to the appropriate governmental
agencies in the Cayman Islands and the People's Republic of China all amounts
withheld and owing to such agencies. The Depositary will forward to the Company
or its agent such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental agencies, and the Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Owners of Receipts.
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 entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners and the Company, provided that such
inspection shall not be for the purpose of communicating with Owners in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the Receipts.
The Depositary may close the transfer books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder or at the reasonable written request of the Company.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or, with notice given as promptly as practicable to the
Company, appoint a Registrar or one or more co-registrars for registry of
American Depositary Shares in accordance with any requirements of that exchange
or exchanges. The Depositary shall require each Registrar and co-registrar that
it appoints under this Section 5.1 to give notice in writing to the Depositary
accepting such appointment and agreeing to abide by the applicable terms of this
Deposit Agreement.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or
Company.
Neither the Depositary nor the Company nor any of their respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or Beneficial Owner of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States, the People's
Republic of China or any other country, or of any governmental or regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the Memorandum and Articles of Association of the
Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any act
of God or war or terrorism or other circumstances beyond its control, the
Depositary or the Company shall be prevented, delayed 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 this Deposit Agreement or the Deposited
Securities it is provided shall be done or performed; nor shall the Depositary
or the Company or any of their respective directors, officers, employees, agents
or affiliates incur any liability to any Owner or Beneficial Owner of any
Receipt by reason of any non-performance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this 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 this 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, 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, in each such
case without liability to the Company or the Depositary.
SECTION 5.3 Obligations of the Depositary, the Custodian and the Company.
Neither the Company, nor its directors, officers, employees and agents
assume any obligation nor shall it or any of them be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners, except that the
Company agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
Neither the Depositary nor its directors, officers, employees and
agents assume any obligation nor shall it or any of them be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner of any
Receipt (including, without limitation, liability with respect to the validity
or worth of the Deposited Securities), except that the Depositary agrees to
perform its obligations specifically set forth in this Deposit Agreement without
negligence or bad faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts that in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expenses 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 any
other person believed by it in good faith to be competent to give such advice or
information.
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 any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
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.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
SECTION 5.4 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder 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 hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days
prior written notice of such removal, which shall become effective upon the
later to occur of (i) the 120th day after delivery of the notice to the
Depositary or (ii) the appointment of a successor depositary and its acceptance
of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use reasonable efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon the effectiveness of
such resignation there would be no Custodian acting hereunder, the Depositary
shall, promptly after receiving such notice, appoint a substitute custodian or
custodians, each of which shall thereafter be a Custodian hereunder. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners to do so, it may appoint a substitute or additional custodian or
custodians, each of which shall thereafter be one of the Custodians hereunder.
Upon demand of the Depositary any Custodian shall deliver such of the Deposited
Securities held by it as are requested of it to any other Custodian or such
substitute or additional custodian or custodians. Each such substitute or
additional custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.6 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English, if not
already in English, to the extent required pursuant to any regulation of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the
Depositary will arrange for the mailing, at the Company's expense, of copies of
such notices, reports and communications to all Owners. The Company will timely
provide the Depositary with the quantity of such notices, reports, and
communications, as requested by the Depositary from time to time, in order for
the Depositary to effect such mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
If the Company or any affiliate of the Company determines to make any
issuance or distribution of (1) additional Shares, (2) rights to subscribe for
Shares, (3) securities convertible into Shares, or (4) rights to subscribe for
such securities (each a "Distribution"), the Company shall notify the Depositary
in writing in English as promptly as practicable and in any event before the
Distribution starts and, if requested in writing by the Depositary, the Company
shall promptly furnish to the Depositary a written opinion from U.S. counsel for
the Company that is reasonably satisfactory to the Depositary, stating whether
or not the Distribution requires, or, if made in the United States, would
require, registration under the Securities Act of 1933. If, in the opinion of
that counsel, the Distribution requires, or, if made in the United States, would
require, registration under the Securities Act of 1933, that counsel shall
furnish to the Depositary a written opinion as to whether or not there is a
registration statement under the Securities Act of 1933 in effect that will
cover that Distribution.
The Company agrees with the Depositary that neither the Company nor
any entity or person controlled by, controlling or under common control with the
Company will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
or the Company furnishes to the Depositary a written opinion from U.S. counsel
for the Company, which counsel shall be reasonably satisfactory to the
Depositary, stating that the Shares to be deposited could be offered and sold
publicly by the holder in the United States without further registration of
those Shares under the Securities Act.
SECTION 5.8 Indemnification.
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
fees and expenses of counsel) which may arise out of (a) any registration with
the Commission of Receipts, American Depositary Shares or Deposited Securities
or the offer or sale thereof in the United States or (b) acts performed or
omitted, pursuant to the provisions of this 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.
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.09 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release, or (ii) 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 American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Company), as applicable, furnished in writing 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.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expense of
counsel), which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall promptly (and in no event more than ten (10) days after receipt of notice
of such Proceeding) notify the party obligated to provide such indemnification
(the "Indemnitor") of such Proceeding. The failure of the Indemnitee to so
notify the Indemnitor shall not impair the Indemnitee's ability to seek
indemnification from the Indemnitor (but only for costs, expenses and
liabilities incurred after such notice) unless such failure adversely affects
the Indemnitor's ability to adequately oppose or defend such Proceeding. Upon
receipt of such notice from the Indemnitee, the Indemnitor shall be entitled to
participate in such Proceeding and, to the extent that it shall so desire and
provided no conflict of interest exists as specified in subparagraph (b) below
or there are no other defenses available to Indemnitee as specified in
subparagraph (d) below, to assume the defense thereof with counsel reasonably
satisfactory to the Indemnitee (in which case all attorney's fees and expenses
shall be borne by the Indemnitor and the Indemnitor shall in good faith defend
the Indemnitee). The Indemnitee shall have the right to employ separate counsel
in any such Proceeding and to participate in the defense thereof, but the fees
and expenses of such counsel shall be borne by the Indemnitee unless (a) the
Indemnitor agrees in writing to pay such fees and expenses, (b) the Indemnitee
shall have reasonably and in good faith concluded that
there is a conflict of interest between the Indemnitor and the Indemnitee in the
conduct of the defense of such action, (c) the Indemnitor fails, within ten (10)
days prior to the date the first response or appearance is required to be made
in such Proceeding, to assume the defense of such Proceeding with counsel
reasonably satisfactory to the Indemnitee or (d) there are legal defenses
available to Indemnitee that are different from or are in addition to those
available to the Indemnitor. No compromise or settlement of such Proceeding may
be effected by either party without the other party's consent unless (i) there
is no finding or admission of any violation of law and no effect on any other
claims that may be made against such other party and (ii) the sole relief
provided is monetary damages that are paid in full by the party seeking the
settlement. Neither party shall have any liability with respect to any
compromise or settlement effected without its consent, which shall not be
unreasonably withheld. The Indemnitor shall have no obligation to indemnify and
hold harmless the Indemnitee from any loss, expense or liability incurred by the
Indemnitee as a result of a default judgment entered against the Indemnitee
unless such judgment was entered after the Indemnitor agreed, in writing, to
assume the defense of such Proceeding.
SECTION 5.9 Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket 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), or by Owners, as applicable: (1) taxes, stamp duty 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 or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals hereunder, (3) such cable,
telex and facsimile transmission expenses as are expressly provided in this
Deposit Agreement, (4) such expenses as are incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.5, (5) a fee 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 and the surrender
of Receipts pursuant to Section 2.5 or 6.2, (6) to the extent permitted by the
exchange on which the American Depositary Shares may be listed for trading, a
fee 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 hereof, (7) a fee for the distribution of securities
pursuant to Section 4.2, 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 7 treating all such securities as if they were Shares)
but which securities are instead distributed by the Depositary to Owners, (8)
any other charge payable by the Depositary, any of the Depositary's agents,
including the Custodian, or the agents of the Depositary's agents in connection
with the servicing of Shares or other Deposited Securities (which charge shall
be assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.6 and shall be payable 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 Section 2.9 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Company reasonably requests that such papers be retained for a longer period or
be delivered to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
Subject to Sections 5.4 and 6.2, the Company agrees not to appoint any
other depositary for issuance of American or global depositary receipts so long
as The Bank of New York is acting as Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who beneficially own Restricted Securities. The Company agrees to advise in
writing each of the persons or entities so listed that such Restricted
Securities are ineligible for deposit hereunder. The Depositary may rely on such
a list or update but shall not be liable for any action or omission made in
reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION.
SECTION 6.1 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary without the consent of Owners and Beneficial Owners
in any respect which they may deem necessary or desirable. Any amendment which
shall impose or increase any fees or charges (other than taxes and other
governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment shall
have been given to the Owners of outstanding Receipts. Every Owner 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.
SECTION 6.2 Termination.
The Depositary shall at any time at the direction of the Company
terminate this 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 this
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time 60 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 Section 5.4. 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, 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 this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in this 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 this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of six months
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, 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 this Deposit Agreement, except for its
obligations to the Company under Section 5.8 and 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 this
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of this Deposit Agreement, the Company shall be discharged from all
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.8 and 5.9 hereof.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1 Counterparts.
This Deposit Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Beneficial Owner of a Receipt during business hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto (which shall include the Owners and Beneficial Owners) and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person, except as otherwise specifically provided in this Agreement with
respect to co-transfer agents and the Custodian.
SECTION 7.3 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Owners and Beneficial Owners as Parties; Binding Effect.
The Owners and Beneficial Owners of Receipts from time to time shall
be parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.5 Notices.
Any and all notices to be given to the Company shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to Suntech Power Holdings
Co., Ltd., 00-0 Xxxxxxxxxx Xxxxx Xxxx, Xxx Xxxxxxxx, Xxxx, Xxxxxxx Xxxxxxxx
000000, China: Attention: _________, or any other place to which the Company may
have transferred its principal office with notice to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office with notice to the
Company.
Any and all notices to be given to any Owner shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for Receipts of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York without regard to conflicts of
laws, rules or principles thereof.
SECTION 7.7 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Company and the Depositary each agrees that it will not exercise any rights
it has under this Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
SECTION 7.8 Submission to Jurisdiction; Appointment of Agent for Service of
Process.
The Company hereby (i) irrevocably designates and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as the Company's
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to the Shares or Deposited Securities, the American
Depositary Shares, the
Receipts or this Agreement, (ii) consents and submits to the jurisdiction of any
state or federal court in the State of New York in which any such suit or
proceeding may be instituted, and (iii) agrees that service of process upon said
authorized agent shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. The Company agrees to deliver,
upon the execution and delivery of this Deposit Agreement, a written acceptance
by such agent of its appointment as such agent. The Company further agrees to
take any and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or this Agreement remains in force. 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) days
after the same shall have been so mailed.
SECTION 7.9 Arbitration.
In the event the Depositary is advised that a judgment of a court in
the United States may not be recognized, the following provisions shall apply:
(i) Any controversy, claim or cause of action brought by any party or
parties hereto against any other party or parties hereto arising out of or
relating to the Deposit Agreement shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
(ii) The place of the arbitration shall be the City of Xxx Xxxx, Xxxxx
xx Xxx Xxxx, Xxxxxx Xxxxxx of America, and the language of the arbitration shall
be English.
(iii) The number of arbitrators shall be three, each of whom shall be
disinterested in the dispute or controversy, shall have no connection with any
party thereto, and shall be an attorney experienced in international securities
transactions. Each party shall appoint one arbitrator and the two arbitrators
shall select a third arbitrator who shall serve as chairperson of the tribunal.
If a dispute, controversy or cause of action shall involve more than two
parties, the parties shall attempt to align themselves in two sides (i.e.,
claimant and respondent), each of which shall appoint one arbitrator as if there
were only two parties to such dispute, controversy or cause of action. If either
or both parties fail to select an arbitrator, or if such alignment (in the event
there is more than two parties) shall not have occurred, within sixty (60)
calendar days after the initiating party serves the arbitration demand or the
two arbitrators fail to select a third arbitrator within sixty (60) calendar
days of the selection of the second arbitrator, the American Arbitration
Association shall appoint the arbitrator or arbitrators in accordance with its
rules. The
parties and the American Arbitration Association may appoint the arbitrators
from among the nationals of any country, whether or not a party is a national of
that country.
(iv) The arbitrators shall have no authority to award damages not
measured by the prevailing party's actual damages and shall have no authority to
award any consequential, special or punitive damages, and may not, in any event,
make any ruling, finding or award that does not conform to the terms and
conditions of this Deposit Agreement.
(v) In the event any third-party action or proceeding is instituted
against the Depositary relating to or arising from any act or failure to act by
the Company, the Company hereby submits to the personal jurisdiction of the
court or administrative agency in which such action or proceeding is brought.
IN WITNESS WHEREOF, SUNTECH POWER HOLDINGS CO., LTD. and THE BANK OF
NEW YORK have duly executed this agreement as of the day and year first set
forth above and all Owners and Beneficial Owners shall become parties hereto
upon acceptance by them of Receipts issued in accordance with the terms hereof.
SUNTECH POWER HOLDINGS
CO., LTD.
By:
-------------------
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:
-------------------
Name:
Title:
Exhibit A to Deposit Agreement
NO. ___________________________________
AMERICAN DEPOSITARY SHARES
(EACH AMERICAN DEPOSITARY SHARE
REPRESENTS ___ (___) DEPOSITED SHARE[(S)])
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES,
PAR VALUE $0.01 PER SHARE, OF
SUNTECH POWER HOLDINGS CO., LTD.
(INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS)
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 (herein called Shares) of Suntech Power
Holdings Co., Ltd., incorporated under the laws of the Cayman Islands (herein
called the Company). At the date hereof, each American Depositary Share
represents _____ (__) Share[(s)] which are either deposited or subject to
deposit under the Deposit Agreement referred to below at the principal Hong Kong
office of The Hongkong and Shanghai Banking Corporation Limited (herein called
the Custodian). The Depositary's 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. 00000, and its principal
executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
A-1
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 of _______________, 2005 (the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners 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 Beneficial Owners 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 Depositary's 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 amount of
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 for Shares in the name of the Owner
hereof or as ordered by him or by certificates properly endorsed or accompanied
by proper instruments of transfer to such Owner or as ordered by him and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of this Receipt to such Owner or as ordered by him. 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. Notwithstanding any other provision of the Deposit Agreement
or this Receipt, the surrender of outstanding Receipts and withdrawal of
Deposited Securities may be suspended only for (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities.
A-2
3. TRANSFERS, SPLIT-UPS, 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 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, evidencing 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, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt of a sum sufficient to reimburse it for any tax, stamp duty 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.
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 are closed as provided in Section 5.1 of the
Deposit Agreement, 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. 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 for public sale in the
United States, 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
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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,
if applicable, are validly issued, fully paid, nonassessable and were not issued
in violation of any pre-emptive 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 the Shares are eligible for
deposit in accordance with the Deposit Agreement and the General Instructions to
Form F-6 under the Securities Act, and Receipts evidencing American Depositary
Shares representing the Shares would not be, Restricted Securities. All
representations and warranties deemed made under Section 3.3 of the Deposit
Agreement shall survive the deposit of Shares and delivery or surrender of
Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial 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 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 in writing, the
Depositary shall, as promptly as practicable, provide the Company, at the
expense of the Company, with copies of any such proofs, certificates or other
information it receives pursuant to this Article, unless prohibited by
applicable law. 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 the Cayman Islands or in th People's Republic
of China 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 out-of-pocket
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.
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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), or by Owners, as applicable: (1) taxes,
stamp duty 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 or from 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 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) to the extent permitted by the exchange on which the American Depositary
Shares may be listed for trading, a fee 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 of the
Deposit Agreement, (7) 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 7 treating all such securities as if
they were Shares) but which securities are instead distributed by the Depositary
to Owners, (8) any other charge payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.6 of the Deposit Agreement and shall
be payable 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 Section 2.9 of the Deposit Agreement, may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may, notwithstanding Section 2.3 of the Deposit Agreement,
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.2 of the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to
Section 2.5 of the Deposit Agreement, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The
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Depositary may receive Receipts in lieu of Shares in satisfaction of a
Pre-Release. Each Pre-Release will be (a) preceded or accompanied by a written
representation and agreement from the person to whom Receipts are to be
delivered (the "Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns
the shares or Receipts to be remitted, as the case may be, (ii) assigns all
beneficial rights, title and interest in such Shares or Receipts, as the case
may be, to the Depositary in its capacity as such and for the benefit of the
Owners, and (iii) will not take any action with respect to such Shares or
Receipts, as the case may be, that is inconsistent with the transfer of
beneficial ownership (including, without the consent of the Depositary,
disposing of such Shares or Receipts, as the case may be), other than in
satisfaction of such Pre-Release, (b) at all times fully collateralized with
cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (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 Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited thereunder; provided, however, that the Depositary reserves the right
to disregard such limit from time to time as it deems reasonably appropriate,
and may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set Dollar limits with
respect to Pre-Release transactions to be entered into thereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities thereunder).
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 Owner and Beneficial
Owner of this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument; under the laws of New York; 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 and for all other purposes.
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10. VALIDITY OF RECEIPT.
This Receipt 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 signature of a duly
authorized signatory of the Depositary; provided, however, that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed,
and such Receipts are countersigned by the manual or facsimile signature of a
duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission (hereinafter called the "Commission").
Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office, as promptly as practicable after receipt, any
reports and communications, including any proxy soliciting material, received
from the Company which are both (a) received by the Depositary as the holder of
the Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary shall also send to the
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 shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners 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 shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, 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 shall distribute the
amount thus received (net of the fees and expenses of the Depositary as provided
in the Deposit Agreement, if applicable) to the Owners of Receipts entitled
thereto, provided, however, that in the event that the Company or the
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Depositary shall be required to withhold and does withhold from such cash
dividend or such 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 shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall, subject to all applicable laws, cause the securities or
property received by it to be distributed to the Owners of Receipts entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary or any taxes or other governmental charges, 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. The
Depositary may refuse to effect any distribution of securities under Section 4.2
of the Deposit Agreement unless it has received an opinion of United States
counsel for the Company that is satisfactory to the Depositary that the
distribution does not require registration under the Securities Act.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may 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 and expenses 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 shall use reasonable efforts to sell the amount of Shares
represented by the aggregate of such fractions and distribute any net proceeds
to the Owners entitled to them, 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.
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The Company or its agent will remit to the appropriate governmental
agencies in the Cayman Islands and the People's Republic of China all amounts
withheld and owing to such agencies. The Depositary will forward to the Company
or its agent such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental agencies, and the Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Owners of Receipts. 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. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian 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 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 or the Custodian 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
without excessively burdensome or otherwise unreasonable efforts, or if any such
approval or license is not obtained within a reasonable period as determined by
the Depositary, or if there are foreign exchange
A-9
controls in place that prohibit such conversion, 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
to them or in disposing of such rights on behalf of any Owners otherwise
entitled to them and making the net proceeds available 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. If at the time of the offering of any rights the
Depositary determines in its reasonable 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.
In circumstances in which rights would otherwise not be distributed, 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.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner 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,
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and upon payment of the fees and expenses of the Depositary and any other
charges 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 Receipts to such Owner. In the case of a distribution
pursuant to the second paragraph of this Article, such Receipts shall be
legended in accordance with applicable U.S. laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation and transfer under such
laws.
If the Depositary determines in its reasonable discretion that it is not
lawful and feasible to make such rights available to all or certain Owners, it
may sell the rights, 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 and expenses of the Depositary as
provided in Section 5.9 of the Deposit Agreement and all taxes and governmental
charges payable in connection with such rights and subject to the terms and
conditions 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 will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act with respect to a distribution to Owners or are
registered under the provisions of the Securities Act; provided, however, that
nothing in the Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner of Receipts requests distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under the Securities Act, the Depositary shall not effect such distribution
unless it has received an opinion from recognized counsel in the United States
for the Company upon which the Depositary may rely that such distribution to
such Owner is exempt from such registration; provided, however, that the Company
shall have no obligation to cause its counsel to issue such opinion at the
request of such Owner.
The Depositary shall not be responsible for any reasonable failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
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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, or whenever the
Depositary shall find it necessary or convenient, the Depositary shall fix a
record date, which date shall be the same date, to the extent practicable, as
the record date for the Deposited Securities or if different, as close thereto
as practicable (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, (b) on or after which each
American Depositary Share will represent the changed number of Shares or (c) for
any other matter, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the discretion of the Depositary and shall contain
(a) such information as is contained in such notice of meeting, and (b) a
statement that the Owners as of the close of business on a specified record date
will be entitled, subject to any applicable provision of the People's Republic
of China and Cayman Islands law and of the Memorandum and Articles of
Association of the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares and (c) a
statement as to the manner in which such instructions may be given. Upon the
written request of an Owner of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose (the "Instruction
Date"), the Depositary shall endeavor, in so far as practicable, to vote or
cause to be voted the amount of Shares or other Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt in accordance with
the instructions set forth in such request. The Depositary shall not vote or
attempt to exercise the right to vote that attaches to such Shares or other
Deposited Securities other than in accordance with such instructions.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the first paragraph of Section 4.7 of the
Deposit Agreement sufficiently prior to the Instruction Date to ensure that the
Depositary will vote the Shares or Deposited Securities in accordance with the
provisions of that paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
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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,
split-up, 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, in addition to the existing Deposited Securities,
if any, 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 execute and deliver additional Receipts as in
the case of a dividend in 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 respective
directors, officers, employees, agents or affiliates shall incur any liability
to any Owner or Beneficial Owner of any Receipt, if by reason of any provision
of any present or future law or regulation of the United States, the People's
Republic of China or any other country, or of any governmental or regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the Memorandum and Articles of Association of the Company, or by reason of
any provision of any securities issued or distributed by the Company, or any
Offering or distribution thereof or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed 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 or Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company or
any of their respective directors, officers, employees, agents or affiliates
incur any liability to any Owner or Beneficial Owner of a Receipt by reason of
any non-performance 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 in each such case without
liability to the Company or the Depositary.
Neither the Company nor the Depositary nor any of their directors,
officers, employees, agents or affiliates assumes any obligation or shall be
subject to any liability
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under the Deposit Agreement to Owners or Beneficial Owners of Receipts, except
that the Company and the Depositary agree to perform their obligations
specifically set forth in the Deposit Agreement without negligence or bad faith.
The Depositary shall not be subject to any liability with respect to the
validity or worth of the Deposited Securities. Neither the Depositary nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the Receipts that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expenses 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 Beneficial Owner of a
Receipt, or any other person believed by it in good faith to be competent to
give such advice or information. The Depositary shall not be 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 any matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. 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. No disclaimer of liability
under the Securities Act is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
The Depositary may at any time resign as Depositary under the Deposit
Agreement 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 the Deposit Agreement. The
Depositary may at any time be removed by the Company by 120 days prior written
notice of such removal, which shall become effective upon the later to occur of
the (i) 120th day after delivery of the notice to the Depositary or (ii) the
appointment of a successor depositary and its acceptance of such appointment as
provided in 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 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 without the consent of Owners and Beneficial Owners in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees,
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cable, telex or facsimile transmission costs, delivery costs or other such
expenses), 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 30 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 60 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 and other property 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 six months 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
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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 for its obligations to the Company under
Section 5.8 of the Deposit Agreement and 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 under
Sections 5.8 and 5.9 of the Deposit Agreement.
23. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The Company has (i) irrevocably designated and appointed CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, as the Company's authorized agent
upon which process may be served in any suit or proceeding arising out of or
relating to the Shares or Deposited Securities, the American Depositary Shares,
the Receipts or this Agreement, (ii) consents and submits to the jurisdiction of
any state or federal court in the State of New York in which any such suit or
proceeding may be instituted, and (iii) agrees that service of process upon said
authorized agent shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. The Company agrees to deliver,
upon the execution and delivery of the Deposit Agreement, a written acceptance
by such agent of its appointment as such agent. The Company further agrees to
take any and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or the Deposit Agreement remains in force. 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 thereunder, and service so made shall be deemed completed
five (5) days after the same shall have been so mailed.
24. ARBITRATION.
In the event the Depositary is advised that a judgment of a court in the
United States court may not be recognized, the following provisions shall apply:
(i) Any controversy, claim or cause of action brought by any party or
parties hereto against any other party or parties hereto arising out of or
relating to the Deposit Agreement shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
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(ii) The place of the arbitration shall be the City of Xxx Xxxx, Xxxxx xx
Xxx Xxxx, Xxxxxx Xxxxxx of America, and the language of the arbitration shall be
English.
(iii) The number of arbitrators shall be three, each of whom shall be
disinterested in the dispute or controversy, shall have no connection with any
party thereto, and shall be an attorney experienced in international securities
transactions. Each party shall appoint one arbitrator and the two arbitrators
shall select a third arbitrator who shall serve as chairperson of the tribunal.
If a dispute, controversy or cause of action shall involve more than two
parties, the parties shall attempt to align themselves in two sides (i.e.,
claimant and respondent), each of which shall appoint one arbitrator as if there
were only two parties to such dispute, controversy or cause of action. If either
or both parties fail to select an arbitrator, or if such alignment (in the event
there is more than two parties) shall not have occurred, within sixty (60)
calendar days after the initiating party serves the arbitration demand or the
two arbitrators fail to select a third arbitrator within sixty (60) calendar
days of the selection of the second arbitrator, the American Arbitration
Association shall appoint the arbitrator or arbitrators in accordance with its
rules. The parties and the American Arbitration Association may appoint the
arbitrators from among the nationals of any country, whether or not a party is a
national of that country.
(iv) The arbitrators shall have no authority to award damages not measured
by the prevailing party's actual damages and shall have no authority to award
any consequential, special or punitive damages, and may not, in any event, make
any ruling, finding or award that does not conform to the terms and conditions
of the Deposit Agreement.
In the event any third-party action or proceeding is instituted against the
Depositary relating to or arising from any act or failure to act by the Company,
the Company hereby submits to the personal jurisdiction of the court or
administrative agency in which such action or proceeding is brought.
25. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under the Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
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