AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 1 dated
as
of July , 2007 (the "Amendment") to the Deposit Agreement dated as of January
23, 1995 (the "Deposit Agreement"), among The Hong Kong and China Gas Company
Limited, incorporated under the laws of Hong Kong (the "Company"), JPMorgan
Chase Bank, N.A., as depositary (the "Depositary"), and all Holders from time
to
time of American Depositary Receipts issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to Section 6.01 of the Deposit Agreement, the Company and the
Depositary desire to amend certain terms of the Deposit Agreement and
Receipts.
NOW,
THEREFORE, for
good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS
TO DEPOSIT AGREEMENT
SECTION
2.01. Deposit
Agreement.
All
references in the Deposit Agreement to the term ADeposit
Agreement@
shall,
as of the Effective Date (as herein defined), refer to the Deposit Agreement
as
amended by this Amendment.
SECTION
2.02. Article
I
of the Deposit Agreement is amended as follows:
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The
following definition shall be inserted into Article I prior to definition
of the term ADeposit
Agreement@:
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The
terms
"deliver",
"execute",
"issue",
Aregister@,
Asurrender@,
Atransfer@
or
Acancel@,
when
used with respect to Direct Registration Receipts, shall refer to an entry
or
entries or an electronic transfer or transfers in the Direct Registration
System.
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(b)
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The
following definitions shall be inserted into Article I after the
definition of the term ADeposited
Securities@:
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The
term
"Direct
Registration Receipt"
means a
Receipt, the ownership of which is recorded on the Direct Registration System.
The
term
"Direct
Registration System"
means
the system for the
uncertificated
registration of ownership of securities established by The Depository Trust
Company ("DTC") and utilized by the Depositary pursuant to which the Depositary
may record the ownership of Receipts without the issuance of a certificate,
which ownership shall be evidenced by periodic statements issued by the
Depositary to the Holders entitled thereto. For purposes hereof, the Direct
Registration System shall include access to the Profile Modification System
maintained by DTC which provides for automated transfer of ownership between
DTC
and the Depositary.
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(c)
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The
following definition shall be inserted into Article I after the definition
of the term AHolder@:
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The
term
"Receipt
Register"
means
the register maintained by the Depositary for the registration of transfer,
combination and split-up of Receipts, and, in the case of Direct Registration
Receipts, shall include the Direct Registration System.
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(d)
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The
definition of Receipts is amended in its entirety to read as
follows:
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The
term
"Receipts"
shall
mean the American Depositary Receipts executed and delivered hereunder. Receipts
may be either in physical certificated form or Direct Registration Receipts.
Receipts in physical certificated form shall be in substantially the form of
Exhibit A hereto, evidencing American Depositary Shares, as the same may be
amended from time to time in accordance with the provisions hereof. References
to AReceipts@
shall
include Direct Registration Receipts, unless the context otherwise
requires.
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(e)
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After
giving effect to the amendments made hereby all of the definitions
are
renumbered sequentially to reflect such
amendments.
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2
SECTION
2.03. Section
2.01 of the Deposit Agreement is amended in its entirety to read
as
follow:
SECTION
2.01. Form
and Transferability of Receipts.
(a) Certificated
Receipts.
Receipts in certificated form shall be engraved or printed or lithographed
on
steel-engraved borders and shall be substantially in the form set forth in
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions as herein-after provided. Receipts may be issued in denominations
of
any number of American Depositary Shares. Receipts in certificated form shall
be
executed by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary. Unless so executed, no Receipt in
certificated form shall be entitled to any benefits under this Deposit Agreement
or be valid or obligatory for any purpose. The Depositary shall maintain a
Receipt Register in which each Receipt so executed and delivered as hereinafter
provided and the transfer of each such Receipt shall be registered. Receipts
in
certificated form bearing the facsimile signature of anyone who was at any
time
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such Receipts. Receipts in certificated form may, with the prior
written consent of the Company (which consent shall not be unreasonably
withheld), be endorsed with or have incorporated in the text thereof such
legends or recitals or changes not inconsistent with this Deposit Agreement
as
may be required by the Depositary in respect of its obligations hereunder or
as
may be required to comply with any applicable law or regulations or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be traded or to conform with any usage with respect thereto, or
to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
(b)
Direct
Registration Receipts.
Notwithstanding anything in this Deposit Agreement or in the Receipt to the
contrary, at such time as is permitted within the Profile or comparable system
of The Depository Trust Company, American Depositary Shares shall be evidenced
by Direct Registration Receipts, unless certificated Receipts are specifically
requested by the Holder and for no additional fee. Holders shall be bound by
the
terms and conditions of this Deposit Agreement and of the form of Receipt,
regardless of whether their Receipts are Direct Registration Receipts or
certificated Receipts.
(c)
Transferability.
Title
to a Receipt (and to the Deposited Securities represented by the American
Depositary Shares evidenced thereby), when properly endorsed (in the case of
Receipts in certificated form) or upon delivery to the Depositary of properly
executed instruments of transfer, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided
that
until a Receipt shall be transferred on the Receipt Register as provided in
Section 2.03, the Company and the Depositary, notwithstanding any notice to
the
contrary, may treat the Holder thereof as the absolute owner thereof for the
purpose of determining the person entitled to any distribution or notice and
for
all other purposes.
3
SECTION
2.04. The
first
paragraph of Section 2.02 of the Deposit Agreement is amended
by inserting the following immediately after the words AReceipt
or Receipts@
in the
first sentence thereof: to
the
extent permissible through the Direct Registration System (or, if specifically
requested, certificated Receipts)
SECTION
2.05. Section
2.04 of the Deposit Agreement is amended by:
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(a)
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replacing
"on its transfer books" with "on the Receipt Register" in the first
sentence thereof.
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(b)
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inserting
the following after the words Atime
to time@
in
the first sentence thereof:
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upon
receipt at any of its designated transfer offices of proper instruments of
transfer or
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(c)
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inserting
the following at the conclusion
thereof:
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At
the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated Receipt with a Direct Registration Receipt, or vice versa, execute
and deliver a certificated Receipt or a Direct Registration Receipt, as the
case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or Direct Registration Receipt, as the
case may be, substituted.
SECTION
2.06. Section
2.05 of the Deposit Agreement is amended by replacing the
first
sentence thereof with the following:
Upon
receipt at the Depositary's Office or at such other offices as the Depositary
may designate of a Holder's written order directing the Depositary to cause
the
Deposited Securities represented by the American Depositary Shares evidenced
by
a Receipt to be withdrawn and delivered to or upon the written order of the
person or persons designated in such order along with a certificated Receipt
(properly endorsed in blank or accompanied by proper instruments of transfer
in
blank, to the extent required by the Depositary) or, in the case of a Direct
Registration Receipt, proper instruments of transfer in blank, to the extent
required by the Depositary, and the fee of the Depositary for cancellation
of
Receipts, the Depositary shall (i) cancel such certificated Receipt or make
a
notation on the Direct Registration System reflecting the cancellation of such
Direct Registration Receipts, as the case may be, and (ii) direct the Custodian
to deliver without unreasonable delay, subject to this Deposit Agreement, the
Company's constituent documents, and to the provisions of or governing Deposited
Securities, to or upon the written order of the person or persons designated
in
such order, the Deposited Securities at the time represented by the American
Depositary Shares evidenced by such Receipt, and the Custodian shall so deliver
such Deposited Securities, at the office of the Custodian, except that the
Depositary may, at the request, risk and expense of the Holder make delivery
of
such Deposited Securities without unreasonable delay to such person or persons
at the Depositary's Office or at any other place specified by the Holder in
such
order.
4
SECTION
2.07. Section
2.07 of the Deposit Agreement is amended in its entirety to read as
follows:
In
case
any Receipt in certificated form shall be mutilated, destroyed, lost or stolen,
the Depositary shall issue a new Receipt through the Direct Registration System
or, as the Holder may specifically request, execute and deliver a new Receipt
of
like tenor, in either case in exchange and substitution for such mutilated
Receipt upon cancellation thereof, or in lieu of and in substitution for such
destroyed or lost or stolen Receipt, unless the Depositary has notice that
such
Receipt has been acquired by a bona fide purchaser, upon the Holder thereof
filing with the Depositary (a) a request for such execution and delivery and
(b)
a sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence satisfactory
to the Depositary of such destruction or loss or theft of such Receipt, the
authenticity thereof and the Holder's ownership thereof.
SECTION
2.08. Section
5.01 of the Deposit Agreement is amended by replacing "register" in the
paragraph (b) with "Receipt Register".
5
SECTION
2.09. Section
5.09 of the Deposit Agreement is amended to read as follows:
The
Depositary may collect from (i) each person to whom American Depositary Shares
are issued, including, without limitation, issuances against deposits
of Shares, issuances in respect of Share distributions, rights and other
distributions under the Deposit Agreement, issuances pursuant to a stock
dividend or stock split declared by the Company, or issuances pursuant to a
merger, exchange of securities or any other transaction or event affecting
the American Depositary Shares or the Deposited Securities, and (ii) each
person surrendering American Depositary Shares for withdrawal of Deposited
Securities or whose American Depositary Shares are cancelled or reduced for
any
other reason, U.S.$5.00 for each 100 American Depositary Shares (or portion
thereof) issued, delivered, reduced, cancelled or surrendered (as the case
may be). The Depositary may sell (by public or private sale) sufficient
securities and property received in respect of Share distributions, rights
and
other distributions prior to such deposit to pay such charge. The following
additional charges shall be incurred by the Holders, by any party depositing
or
withdrawing Shares or by any party surrendering American Depositary Shares,
to
whom American Depositary Shares 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 American Depositary Shares or the Deposited
Securities or a distribution of American Depositary Shares pursuant to paragraph
(10)), whichever is applicable (i) a fee of U.S.$0.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant
to
the Deposit Agreement, (ii) to the extent not prohibited by the rules of the
primary stock exchange upon which the American Depositary Shares are listed,
a
fee of U.S.$1.50 per Receipt or Receipts for transfers made under the Deposit
Agreement, (iii) a fee for the distribution or sale of securities, 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 hereof treating all such securities
as if they were Shares) but which securities or the net cash proceeds from
the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
an
aggregate fee of U.S.$0.02 per American Depositary Share (or portion thereof)
per calendar year for services performed by the depositary in administering
the
Receipt program (which fee may be charged on a periodic basis during each
calendar year and shall be assessed against holders of Receipts as of the record
date or record dates set by the depositary during each calendar year and shall
be payable at the sole discretion of the Depositary by billing such Holders
or
by deducting such charge from one or more cash dividends or other cash
distributions), and (v) such fees and expenses as are incurred by the Depositary
(including without limitation expenses incurred on behalf of Holders in
connection with compliance with foreign exchange control regulations or any
law
or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. The Company will pay all
other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
Receipts or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees
in
respect of the Shares as of the date of the Deposit Agreement), (iv) expenses
of
the Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency), (v) overhead expenses
and
any other expenses (including, without limitation, salaries and benefits to
employees) incident to the administration in the ordinary course of this Deposit
Agreement, and (vi) any other charge payable by any of the Depositary, any
of
the Depositary's agents, including, without limitation, the Custodian, or the
agents of the Depositary's agents in connection with the servicing of the Shares
or other Deposited Securities (which charge shall be assessed against Holders
as
of the record date or dates set by the Depositary and shall be payable at the
sole discretion of the Depositary by billing such Holders or by deducting such
charge from one or more cash dividends or other cash distributions). Such
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary.
6
SECTION
2.10. All
but
the first sentence of Section 5.10 of the Deposit Agreement are
deleted.
SECTION
2.11. The
address of the Depositary set forth in Section 7.05(b) of theDeposit
Agreement is amended to read as follows:
JPMorgan
Chase Bank, N.A., 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ADR
Administration
SECTION
2.12. Exhibit
B
and all references thereto in the Deposit Agreement are hereby deleted.
ARTICLE
III
AMENDMENTS
TO THE FORM OF RECEIPT
SECTION
3.01.
The
form
of American Depositary Receipt in Exhibit A to the Deposit Agreement
(the "Form of Receipt") is amended as provided in this Article.
SECTION
3.02. All
references in the Form of Receipt to "deliver",
"deposit","surrender",
"transfer"
or
"withdraw",
when
used with respect to the Shares refer, where the context requires, to an entry
or entries or an electronic transfer or transfers and not to the
physicaltransfer
of certificates representing the Shares.
SECTION
3.03. The
first
sentence of Paragraph (3) of the Form of Face of Receipt is amended
by (a) replacing "register" with "Receipt Register" and (b) by replacing
"Receipt register" with "Receipt Register".
SECTION
3.04. Paragraph
(8) of the Form of Face of Receipt is amended to read as follows:
7
The
Depositary may collect from (i) each person to whom American Depositary Shares
are issued, including, without limitation, issuances against deposits
of Shares, issuances in respect of Share distributions, rights and other
distributions under the Deposit Agreement, issuances pursuant to a stock
dividend or stock split declared by the Company, or issuances pursuant to a
merger, exchange of securities or any other transaction or event affecting
the American Depositary Shares or the Deposited Securities, and (ii) each
person surrendering American Depositary Shares for withdrawal of Deposited
Securities or whose American Depositary Shares are cancelled or reduced for
any
other reason, U.S.$5.00 for each 100 American Depositary Shares (or portion
thereof) issued, delivered, reduced, cancelled or surrendered (as the case
may be). The Depositary may sell (by public or private sale) sufficient
securities and property received in respect of Share distributions, rights
and
other distributions prior to such deposit to pay such charge. The following
additional charges shall be incurred by the Holders, by any party depositing
or
withdrawing Shares or by any party surrendering American Depositary Shares,
to
whom American Depositary Shares 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 American Depositary Shares or the Deposited
Securities or a distribution of American Depositary Shares pursuant to paragraph
(10)), whichever is applicable (i) a fee of U.S.$0.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant
to
the Deposit Agreement, (ii) to the extent not prohibited by the rules of the
primary stock exchange upon which the American Depositary Shares are listed,
a
fee of U.S.$1.50 per Receipt or Receipts for transfers made under the Deposit
Agreement, (iii) a fee for the distribution or sale of securities, 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 hereof treating all such securities
as if they were Shares) but which securities or the net cash proceeds from
the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
an
aggregate fee of U.S.$0.02 per American Depositary Share (or portion thereof)
per calendar year for services performed by the depositary in administering
the
Receipt program (which fee may be charged on a periodic basis during each
calendar year and shall be assessed against holders of Receipts as of the record
date or record dates set by the depositary during each calendar year and shall
be payable at the sole discretion of the Depositary by billing such Holders
or
by deducting such charge from one or more cash dividends or other cash
distributions), and (v) such fees and expenses as are incurred by the Depositary
(including without limitation expenses incurred on behalf of Holders in
connection with compliance with foreign exchange control regulations or any
law
or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. The Company will pay all
other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
Receipts or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees
in
respect of the Shares as of the date of the Deposit Agreement), (iv) expenses
of
the Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency), (v) overhead expenses
and
any other expenses (including, without limitation, salaries and benefits to
employees) incident to the administration in the ordinary course of the Deposit
Agreement, and (vi) any other charge payable by any of the Depositary, any
of
the Depositary's agents, including, without limitation, the Custodian, or the
agents of the Depositary's agents in connection with the servicing of the Shares
or other Deposited Securities (which charge shall be assessed against Holders
as
of the record date or dates set by the Depositary and shall be payable at the
sole discretion of the Depositary by billing such Holders or by deducting such
charge from one or more cash dividends or other cash distributions). Such
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary.
8
SECTION
3.05. Paragraph
(9) of the Form of Face of Receipt and paragraph (16) of the
form
of Reverse of Receipt are amended by replacing "register" with "Receipt
Register".
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
SECTION
4.01. Representations
and Warranties.
The
Company represents and warrants
to, and agrees with, the Depositary and the Holders, that:
(a)
This
Amendment, when executed and delivered by the Company, and the Deposit Agreement
and all other documentation executed and delivered by the Company in connection
therewith, will be and have been, respectively, duly and validly authorized,
executed and delivered by the Company, and constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
and
(b)
In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, and
any
other document furnished hereunder or thereunder in Hong Kong, neither of such
agreements need to be filed or recorded with any court or other authority in
Hong Kong, nor does any stamp or similar tax or governmental charge need to
be
paid in Hong Kong on or in respect of such agreements.
9
ARTICLE
V
MISCELLANEOUS
SECTION
5.01. Effective
Date.
This
Amendment is dated as of the date set forth above and shall be effective as
of
the date first set forth above (the "Effective Date"), provided the changes
set
forth in Sections 2.09 and 3.04 shall not become effective until thirty days
after the date notice thereof is first provided to Holders.
SECTION
5.02. Outstanding
Receipts.
Receipts issued prior or subsequent to the date hereof, which do not reflect
the
changes to the form of Receipt effected hereby (as set forth in Exhibit A
hereto), do not need to be called in for exchange and may remain outstanding
until such time as the Holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing, including the
printing or overstamping of the form of Receipt to reflect the changes to the
form of Receipt effected hereby.
SECTION
5.03. Indemnification.
The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 5.08 of the Deposit Agreement, as amended hereby in
connection with any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
10
SECTION
5.04. Ratification.
Except
as expressly amended hereby, the terms, covenants and conditions of the Deposit
Agreement, as originally executed, shall remain in full force and effect.
IN
WITNESS WHEREOF,
the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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HONG
KONG AND CHINA GAS COMPANY
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LIMITED
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.
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By:
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Name:
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Title:
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11
Exhibit
A
[FORM
OF
FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
THE
HONG
KONG AND CHINA GAS COMPANY LIMITED
(Incorporated
under the laws of Hong Kong)
No.
_____________
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary (the “Depositary”), hereby certifies that
_______________ is the owner of _______ American Depositary Shares, representing
deposited ordinary shares of H.K.$0.25 each, including rights to receive such
ordinary shares (“Shares”), of THE HONG KONG AND CHINA GAS COMPANY LIMITED, a
corporation organized under the laws of Hong Kong (the “Company”). At the date
hereof, each American Depositary Share represents one Share deposited under
the
Deposit Agreement (hereinafter defined) at the Hong Kong office of The Hongkong
and Shanghai Banking Corporation Limited, as Custodian (the “Custodian”).
Capitalized terms used herein that are not defined herein shall have the
meanings assigned to them in the Deposit Agreement.
(1)
The
Deposit Agreement.
This
American Depositary Receipt is one of the receipts (the “Receipts”) executed and
delivered pursuant to the Deposit Agreement dated as of January 23, 1995 (as
amended from time to time, the “Deposit Agreement”) by and among the Company,
the Depositary and all registered holders (“Holders”) from time to time of
Receipts, each of whom by accepting a Receipt becomes a party thereto, bound
by
all applicable terms and provisions thereof and hereof. The Deposit Agreement
sets forth the rights of Holders and the rights and duties of the Depositary
in
respect of the Shares deposited thereunder and any and all other securities,
property and cash (except cash held pursuant to clause (i) of paragraph 4(b))
from time to time received in respect of such Shares and held thereunder (such
Shares, securities, property and cash, collectively, the “Deposited
Securities”). Copies of the Deposit Agreement and of the Company’s provisions of
or governing Deposited Securities are on file at the Depositary’s Office, the
office of the Custodian and at any other designated transfer office. The
statements made on the face and the reverse of this Receipt are summaries of
certain provisions of the Deposit Agreement and are qualified by and subject
to
the detailed provisions thereof. The Depositary makes no representation or
warranty as to the validity or worth of the Deposited
Securities.
A-1
(2)
Withdrawal
of Deposited Securities.
Upon
surrender of this Receipt and payment of the fee of the Depositary provided
for
in paragraph (8) of this Receipt at the Depositary’s Office or at such other
offices as it may designate, subject to the Deposit Agreement and the provisions
of or governing the Deposited Securities, the Holder hereof is entitled to
the
delivery as promptly as practicable at the office of the Custodian to such
Holder or upon such Holder’s order of the Deposited Securities at the time
represented by the American Depositary Shares evidenced by this Receipt. At
the
request, risk and expense of the Holder hereof, the Depositary may deliver
such
Deposited Securities at the Depositary’s Office or at such other place as may
have been requested by the Holder. Delivery of Deposited Securities may be
made
by the delivery of certificates to the extent such Deposited Securities may
be
represented by certificates and, to the extent that the provisions of or
governing Deposited Securities make delivery of certificates therefor
impracticable, by such delivery as the Depositary may reasonably effect,
including, without limitation, by transfer of record ownership thereof to an
account designated by the Holder maintained either by the Company or an
accredited intermediary, such as a bank, acting as a registrar for the Deposited
Securities. Neither the Depositary nor the Custodian shall deliver Deposited
Securities to any person except pursuant to this paragraph (2) or paragraphs
(12), (15), (17), (19) or (21). Notwithstanding any other provision of the
Deposit Agreement or this Receipt, the Depositary may restrict the withdrawal
of
Deposited Securities only for the reasons set forth in General Instruction
I.A.(1) to Form F-6 under the Securities Act of 1933.
(3)
Transfers,
Split-ups and Combinations.
Subject
to paragraph (4), this Receipt is transferable on the Receipt Register
maintained by the Depositary by the Holder hereof in person or by duly
authorized attorney, upon surrender of this Receipt at any designated transfer
office properly endorsed or accompanied by proper instruments of transfer and
duly stamped as may be required by applicable law; provided
that the
Depositary may close the Receipt Register at any time or from time to time
when
deemed expedient by it (after consultation with the Company) in connection
with
the performance of its duties under the Deposit Agreement or at the request
of
the Company. This Receipt may be split into other Receipts or may be combined
with other Receipts into one Receipt, evidencing the same aggregate number
of
American Depositary Shares as those evidenced by the Receipt or Receipts
surrendered.
(4)
Certain
Limitations.
(a)
In
General.
Prior
to the execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution in
respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, the Depositary, the Company or the
Custodian may require: (a) payment of (i) any stock transfer or other tax or
other governmental charge with respect thereto, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or
other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (8) of this Receipt; (b) the production of
proof satisfactory to it of the identity and genuineness of any signature and
of
such other information (including without limitation information as to
citizenship, residence, exchange control approval, or legal or beneficial
ownership of any securities) as it may deem necessary or proper or as the
Company may require; and (c) compliance with such regulations, if any, as the
Depositary may establish consistent with the Deposit Agreement. The delivery
of
Receipts against deposits of Shares may be suspended, deposits of Shares may
be
refused, or the registration of transfer of Receipts, their split-up or
combination or, subject to the last sentence of paragraph (2), the withdrawal
of
Deposited Securities may be suspended, generally or in particular instances,
when the Receipt register or any register for Shares or other Deposited
Securities is closed or when any such action is deemed necessary or advisable
by
the Depositary or the Company. The Depositary will not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the Securities Act of 1933 and not so registered; the Depositary may refuse
to
accept for such deposit any Shares identified by the Company in order to
facilitate the Company’s compliance with securities laws in the United
States.
A-2
(b)
Rights
to Receive Shares.
The
Depositary may execute and deliver Receipts against deposits under the Deposit
Agreement of rights to receive Shares from the Company, or any registrar,
transfer agent or other agent of the Company or any central clearing agency,
approved in writing by the Company, recording Share ownership or transactions.
Until 30 days after the Company requests in writing that the Depositary cease
doing so, the Depositary may also execute and deliver Receipts against deposits
under the Deposit Agreement of other rights to receive Shares (each such
outstanding Receipt, until such Shares are actually deposited hereunder, being
herein called a “Pre-released Receipt”) provided that (i) each Pre-released
Receipt is fully collateralized (marked to market daily) with cash or U.S.
government securities until such Shares are deposited, (ii) the applicant for
Pre-released Receipts represents in writing that it is the beneficial owner
of
such Shares at the issuance of the Pre-released Receipts, has assigned all
beneficial right, title and interest in such Shares to the Depositary and will
hold such Shares for the account of the Depositary until delivery thereof upon
the Depositary’s request, (iii) such transaction is terminable by the Depositary
on not more than five business days’ notice and (iv) all Pre-released Receipts
represent not more than 20% of Shares actually deposited. The collateral
referred to in clause (i) above, but not the earnings thereon, shall be held
for
the benefit of the Holders, but shall not constitute Deposited Securities.
The
Depositary may retain for its own account any compensation for Pre-released
Receipts, including without limitation earnings on the collateral securing
Pre-released Receipts. The Depositary shall not execute and deliver any
Pre-released Receipt or permit any Pre-released Receipt to remain outstanding
in
circumstances that would cause distributions in respect of the Receipts to
be
treated differently for Holders’ United States federal income tax purposes than
distributions by the Company on the Shares. The Depositary will execute and
deliver Receipts (including Pre-released Receipts) only in accordance with
Section 2.03 of the Deposit Agreement and paragraphs (3), (4)(b), (12) and
(15).
A-3
(5)
Liability
of Holder for Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to this Receipt or any Deposited
Securities represented by the American Depositary Shares evidenced by this
Receipt, such tax or other governmental charge shall be payable by the Holder
hereof, who shall pay the amount thereof to the Depositary. The Depositary
may
refuse to effect any registration of transfer of this Receipt or any split-up
or
combination hereof or any withdrawal of such Deposited Securities until such
payment is made, and may withhold or deduct from any distributions on such
Deposited Securities, or may sell for the account of the Holder hereof any
part
or all of such Deposited Securities (after attempting by reasonable means to
notify the Holder hereof prior to such sale), and may apply such cash or the
proceeds of any such sale in payment of such tax or other governmental charge,
the Holder hereof remaining liable for any deficiency.
(6)
Warranties
by Depositor.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor are validly
issued and outstanding, fully paid, nonassessable and free of pre-emptive
rights, that the person making such deposit is duly authorized so to do and
that
such Shares are not “restricted securities” as such term is defined in Rule 144
of the Securities Act of 1933. Such representations and warranties shall survive
the deposit of Shares and issuance of Receipts.
(7)
Disclosure
of Interests.
Notwithstanding any other provision of this Receipt or the Deposit Agreement,
and without prejudice to the disclosure obligations in respect of Shares
contained in the Companies Xxx 0000 of Great Britain, as amended or supplemented
from time to time, or any successor thereto (the “Companies Act”), or the
Securities (Disclosure of Interests) Ordinance of Hong Kong, as amended or
supplemented from time to time, or any successor thereto (the “Disclosure of
Interests Ordinance”), each Holder hereof (a) agrees to comply with requests
from the Company, which are made under statutory provisions in the United
Kingdom or Hong Kong, to provide information as to the capacity in which such
Holder owns or owned this Receipt and regarding the identity of any other person
then or previously interested in this Receipt and the nature of such interest,
and (b) may, pursuant to such statutory provisions and any provisions of the
Articles, forfeit the right to direct the voting of, the right to receive
dividends on, and be prohibited from transferring, Shares as to which compliance
is not made, all as if this Receipt were to the extent practicable the Shares
represented thereby.
In
addition, and without prejudice to the disclosure obligations in respect of
Shares contained in the Companies Act or the Disclosure of Interests Ordinance,
any Holder of this Receipt who is or becomes directly or indirectly interested
(within the meaning of the Articles) in the issued share capital of the Company
equal to or in excess of the “notifiable percentage” (at the date of the Deposit
Agreement, one percent) referred to in the Articles, or is aware that another
person for whom it holds such Receipt is so interested, shall within two days
after becoming so interested or so aware, and thereafter upon certain changes
in
such interest, notify the Company as required by the Articles, the Companies
Act
or the Disclosure of Interests Ordinance.
A-4
(8)
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom American Depositary Shares
are issued, including, without limitation, issuances against deposits
of Shares, issuances in respect of Share distributions, rights and other
distributions under the Deposit Agreement, issuances pursuant to a stock
dividend or stock split declared by the Company, or issuances pursuant to a
merger, exchange of securities or any other transaction or event affecting
the American Depositary Shares or the Deposited Securities, and (ii) each
person surrendering American Depositary Shares for withdrawal of Deposited
Securities or whose American Depositary Shares are cancelled or reduced for
any
other reason, U.S.$5.00 for each 100 American Depositary Shares (or portion
thereof) issued, delivered, reduced, cancelled or surrendered (as the case
may be). The Depositary may sell (by public or private sale) sufficient
securities and property received in respect of Share distributions, rights
and
other distributions prior to such deposit to pay such charge. The following
additional charges shall be incurred by the Holders, by any party depositing
or
withdrawing Shares or by any party surrendering American Depositary Shares,
to
whom American Depositary Shares 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 American Depositary Shares or the Deposited
Securities or a distribution of American Depositary Shares pursuant to paragraph
(10)), whichever is applicable (i) a fee of U.S.$0.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant
to
the Deposit Agreement, (ii) to the extent not prohibited by the rules of the
primary stock exchange upon which the American Depositary Shares are listed,
a
fee of U.S.$1.50 per Receipt or Receipts for transfers made under the Deposit
Agreement, (iii) a fee for the distribution or sale of securities, 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 hereof treating all such securities
as if they were Shares) but which securities or the net cash proceeds from
the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
an
aggregate fee of U.S.$0.02 per American Depositary Share (or portion thereof)
per calendar year for services performed by the depositary in administering
the
Receipt program (which fee may be charged on a periodic basis during each
calendar year and shall be assessed against holders of Receipts as of the record
date or record dates set by the depositary during each calendar year and shall
be payable at the sole discretion of the Depositary by billing such Holders
or
by deducting such charge from one or more cash dividends or other cash
distributions), and (v) such fees and expenses as are incurred by the Depositary
(including without limitation expenses incurred on behalf of Holders in
connection with compliance with foreign exchange control regulations or any
law
or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. The Company will pay all
other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
Receipts or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees
in
respect of the Shares as of the date of the Deposit Agreement), (iv) expenses
of
the Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency), (v) overhead expenses
and
any other expenses (including, without limitation, salaries and benefits to
employees) incident to the administration in the ordinary course of the Deposit
Agreement, and (vi) any other charge payable by any of the Depositary, any
of
the Depositary's agents, including, without limitation, the Custodian, or the
agents of the Depositary's agents in connection with the servicing of the Shares
or other Deposited Securities (which charge shall be assessed against Holders
as
of the record date or dates set by the Depositary and shall be payable at the
sole discretion of the Depositary by billing such Holders or by deducting such
charge from one or more cash dividends or other cash distributions). Such
charges may at any time and from time to time be changed by agreement between
the Company and the Depositary.
A-5
(9)
Title
to Receipts.
Title
to this Receipt (and to the Deposited Securities represented by the American
Depositary Shares evidenced hereby), 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; provided
that the
Depositary, notwithstanding any notice to the contrary, may treat the person
in
whose name this Receipt is registered on the Receipt Register maintained by
the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to any distribution or notice and for all other
purposes.
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 executed by the Depositary by the
manual or facsimile signature of a duly authorized officer of the
Depositary.
(11)
Available
Information.
The
Company furnishes the Securities and Exchange Commission with certain public
reports and documents required by foreign law or otherwise under Rule 12g3-2(b)
under the Securities Exchange Act of 1934. Such reports and documents may be
inspected and copied at the public reference facilities maintained by the
Commission located at the date of the most recent amendment to the Deposit
Agreement at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. Such reports and
documents, and all reports and communications referred to in paragraph (16),
shall be in English to the extent required under Rule 12g3-2(b) under the
Securities Exchange Act of 1934 or otherwise under such Act, and to the extent
any such notice, report or communication has been translated by the
Depositary.
A-6
Dated:
|
JPMORGAN
CHASE BANK, N.A.,
|
|
|
as
Depositary
|
|
|
By
. . . . . . . . . . . . . . . .
|
|
|
Authorized Officer
|
The
address of the Depositary’s Office is 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-7
[FORM
OF
REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(12)
Distributions
Upon Deposited Securities.
Whenever the Depositary or the Custodian shall receive any cash dividend or
other cash distribution upon any Deposited Securities, the Depositary shall,
subject to the Deposit Agreement, distribute as promptly as practicable the
amount thus received, by checks drawn on a bank in the United States, to the
Holders on the record date set by the Depositary therefor of Receipts evidencing
American Depositary Shares representing such Deposited Securities, in proportion
to the number of American Depositary Shares representing such Deposited
Securities held by each of them respectively; provided
that the
Depositary shall make appropriate adjustments in the amounts so distributed
in
respect of (a) any of the Deposited Securities being not entitled, by reason
of
its date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i) required to be withheld by the Company,
the
Custodian or the Depositary on account of taxes or (ii) charged by the
Depositary in connection with the conversion of foreign currency into U.S.
dollars. Cash distributions and cash proceeds from sales of non-cash
distributions in foreign currency will be converted by sale or such other manner
as the Depositary may determine into U.S. dollars (net of the Depositary’s
reasonable and customary charges and expenses in effecting such conversion)
before distribution to Holders. If in the judgment of the Depositary amounts
received in foreign currency may not be converted on a reasonable basis into
U.S. dollars transferable to the United States, or may not be so convertible
for
all of the Holders entitled thereto, the Depositary may in its discretion make
such conversion and distribution in U.S. dollars to the extent reasonable and
permissible to the Holders entitled thereto and may distribute the balance
in
foreign currency (or an appropriate document evidencing their right to same)
to
the Holders entitled thereto or hold such balance or all such foreign currency
for the Holders entitled thereto (without liability for interest thereon).
If
any distribution upon any Deposited Securities consists of a dividend in, or
free distribution of, Shares, the Depositary may or shall if the Company shall
so request, subject to the Deposit Agreement, distribute to the Holders on
a
record date set by the Depositary therefor of Receipts evidencing American
Depositary Shares representing such Deposited Securities, in proportion to
the
number of American Depositary Shares representing such Deposited Securities
held
by each of them respectively, additional Receipts for an aggregate number of
American Depositary Shares representing the number of Shares received as such
divided or free distribution. In lieu of delivering Receipts for fractional
American Depositary Shares in the case of any such distribution, the Depositary
shall as promptly as practicable sell the number of Shares represented by the
aggregate of such fractions and distribute the net proceeds to the Holders
entitled thereto as in the case of a distribution received in cash. If
additional Receipts are not so distributed, each American Depositary Share
shall
thenceforth also represent its proportionate interest in the additional Shares
so distributed upon such Deposited Securities. If 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 nature, the Depositary
shall have discretion, after consultation with the Company, as to whether and
how such rights are to be made available to the Holders; provided
that the
Depositary will, if requested by the Company, either (y) make such rights
available to Holders by means of warrants or otherwise, if lawful and feasible,
or (z) if making such rights available is not lawful or feasible, or if such
rights or warrants are not exercised and appear to be about to lapse, use its
best efforts to sell such rights or warrants at public or private sale, at
such
place or places and upon such terms as the Depositary may deem proper, and
allocate the proceeds of such sales for account of the Holders otherwise
entitled thereto upon an averaged or other practicable basis without regard
to
any distinctions among such Holders because of exchange restrictions, or the
date of delivery of any Receipt or Receipts, or otherwise, and distribute the
net proceeds so allocated to the Holders entitled thereto as in the case of
a
distribution received in cash or, to the extent such sale is not practicable,
allow such rights to lapse. The Depositary will distribute as promptly as
practicable to Holders on the record date set by it therefor any distribution
on
Deposited Securities other than cash, Shares or rights in any manner that the
Depositary deems equitable and practicable; provided
if in
the reasonable opinion of the Depositary any such distribution cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
the Depositary deems such distribution not to be feasible, the Depositary may,
after consultation with the Company, adopt such method as it may deem equitable
for the purpose of effecting such distribution, including the sale (at public
or
private sale) of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale will be distributed by the Depositary
to
the Holders entitled thereto as in the case of a distribution received in cash.
The Depositary need not distribute securities, Receipts or rights unless the
Company furnishes certain evidence or opinions in respect of United States
securities laws (which the Company has no obligation to do).
A-1
(13)
Record
Dates.
Whenever any distribution is being made upon any Deposited Securities or any
change in the number of Shares represented by each American Depositary Share
or
any exchange of Receipts for other Receipts or other depositary receipts is
effected or whenever the Depositary shall receive notice of any meeting of
holders of Shares or other Deposited Securities or the Depositary shall find
it
necessary or convenient in respect of any matter, the Depositary shall fix
a
record date (which shall be the same date as the corresponding record date
set
by the Company or, if different from the record date set by the Company, shall
be set after consultation with the Company and shall be as near as practicable
to any corresponding record date set by the Company) for the determination
of
the Holders of Receipts evidencing the American Depositary Shares representing
such Deposited Securities who shall be entitled to receive or be affected by
such dividend, distribution or the net proceeds of the sale thereof, or in
respect of such changed number of Shares represented by an American Depositary
Share, exchange of Receipts or other matter, or to give instructions for the
exercise of voting rights at any such meeting or to act in respect of such
other
matter.
A-2
(14)
Voting
of Deposited Securities.
As soon
as practicable after receipt of notice of any meeting or solicitation of
consents or proxies of holders of Shares or other Deposited Securities, the
Depositary shall mail to Holders a notice containing (a) such information as
is
contained in such notice and in the solicitation materials, if any, (b) a
statement that each Holder at the close of business on a specified record date
will be entitled, subject to the provisions of or governing Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the Deposited Securities represented by the American
Depositary Shares evidenced by such Holders’ Receipts and (c) a statement as to
the manner in which such instructions may be given, including an express
indication that instructions may be given (or be deemed given in accordance
with
the last sentence of this paragraph if no instruction is received) to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of a Holder on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted (or to grant a
discretionary proxy to a person designated by the Company to vote) the Deposited
Securities represented by the American Depositary Shares evidenced by such
Holder’s Receipts in accordance with any instructions set forth in such request.
The Depositary, the Custodian and any of its or their nominees will not itself
exercise any voting discretion over any Deposited Securities. If no instructions
are received by the Depositary from any Holder with respect to any of the
Deposited Securities represented by the American Depositary Shares evidenced
by
such Holder’s Receipts on or before the date established by the Depositary for
such purpose, the Depositary will deem such Holder to have instructed the
Depositary to give a discretionary proxy to a person designated by the Company
with respect to such Deposited Securities and the Depositary will give a
discretionary proxy to a person designated by the Company to vote such Deposited
Securities, provided
that no
such instruction shall be deemed given and no such discretionary proxy shall
be
given with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to so inform promptly in writing) that (x) the Company
does not wish such proxy given, (y) substantial opposition exists or (z)
materially affects the rights of holders of Shares.
(15)
Changes
Affecting Deposited Securities.
Upon
any change in par value, split-up, consolidation, cancellation 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 that shall be received by the
Depositary in exchange for, or in conversion, replacement or otherwise in
respect of, Deposited Securities shall be treated as Deposited Securities under
the Deposit Agreement; and, the Depositary may with the Company’s approval, and
shall if the Company shall so request, execute and deliver additional Receipts
in respect of such securities as in the case of a dividend of Shares or call
for
the surrender of outstanding Receipts to be exchanged for new Receipts,
reflecting such securities, and to the extent that such additional or new
Receipts are not delivered this Receipt shall thenceforth evidence American
Depositary Shares representing the right to receive the Deposited Securities
including the securities so received.
A-3
(16)
Reports;
Inspection of Register.
The
Depositary will make available for inspection by Holders at the Depositary’s
Office, at the office of the Custodian and at any other designated transfer
offices any reports and communications received from the Company which are
both
(a) received by the Depositary, the Custodian or the nominee of either as the
holder of Deposited Securities and (b) made generally available to the holders
of Deposited Securities by the Company. The Depositary will also mail or make
available to Holders copies of such reports when furnished by the Company as
provided in the Deposit Agreement. The Depositary will keep, at its transfer
office in the Borough of Manhattan, The City of New York, a Receipt Register
for
the registration of Receipts and their transfer that at all reasonable times
will be open for inspection by the Holders and the Company; provided
that
such inspection shall not be for the purpose of communicating with Holders
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.
(17)
Withholding.
In
connection with any distribution to Holders, the Company will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld by the Company and owing to such authority or agency by the Company;
and the Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld by the Company
and owing to such authority or agency by the Depositary or the Custodian. If
the
Depositary determines that any distribution in property other than cash
(including Shares or rights) on Deposited Securities is subject to any tax
that
the Depositary or the Custodian is obligated to withhold, the Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of any
such sale or the balance of any such property after deduction of such taxes
to
the Holders entitled thereto.
A-4
(18)
Liability
of the Company and the Depositary.
Neither
the Depositary, its agents nor the Company shall incur any liability if, by
reason of any present or future law, the provisions of or governing any
Deposited Securities, act of God, war or other circumstance beyond its control,
the Depositary, its agents or the Company shall be prevented or forbidden from,
or subjected to any civil or criminal penalty on account of, or delayed in,
doing or performing any act or thing which by the terms of the Deposit Agreement
it is provided shall be done or performed. Each of the Company, the Depositary
and its agents assumes no obligation and shall be subject to no liability under
the Depositary Agreement or this Receipt to Holders or other persons, except
to
perform such obligations as are specifically set forth and undertaken by it
to
perform in the Deposit Agreement without gross negligence or bad faith. Neither
the Depositary, its agents nor the Company will be (a) under any obligation
to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or this Receipt that in its opinion may involve
it
in expense or liability, unless indemnity satisfactory to it against all expense
and liability be furnished as often as may be required or (b) liable for any
action or inaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, or any other person believed by it to be competent to give such advice
or information. The Depositary, its agents and the Company may rely and shall
be
protected in acting upon any written notice, request, direction or other
document believed by them in good faith to be genuine and to have been signed
or
presented by the proper party or parties. The Depositary and its agents will
not
be responsible for any failure to carry out any instructions to vote any of
the
Deposited Securities, for the manner in which any such vote is cast or for
the
effect of any such vote provided that any such action or inaction is in good
faith. The Depositary and its agents may own and deal in any class of securities
of the Company and its affiliates and in Receipts. The Company has agreed to
indemnify the Depositary, the Custodian, any Receipt registrar, co-transfer
agent, co-registrar or other agent of the Company or the Depositary appointed
under the Deposit Agreement (the “Indemnified Persons”) against any loss,
liability or expense (including reasonable fees and expenses of counsel)
incurred by such Indemnified Person that may arise (a) out of acts performed
or
omitted in connection with the Deposit Agreement and the Receipts, (i) by any
Indemnified Person, except to the extent that any such loss, liability or
expense is due to the negligence or bad faith of or breach of the Deposit
Agreement by such Indemnified Person, or (ii) by the Company or any of its
agents (other than the Indemnified Persons), or (b) out of or in connection
with
any offer or sale of Receipts, American Depositary Shares, Shares or any other
Deposited Securities or any registration statement under the Securities Act
of
1933 in respect thereof, except to the extent such loss, liability or expense
arises out of (x) information (or omissions from such information) relating
to
such Indemnified Person, furnished in writing to the Company by such Indemnified
Person expressly for use in a registration statement under the Securities Act
of
1933 or (y) the issuance of any Pre-released Receipt. Each Indemnified Person
has agreed to indemnify, defend and save harmless the Company against any loss,
liability or expense (including reasonable fees and expenses of counsel)
incurred by the Company in connection with the Deposit Agreement and the
Receipts due to the negligence or bad faith of or the breach of the Deposit
Agreement by such Indemnified Person.
(19)
Resignation
and Removal of Depositary; the Custodian.
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 or be removed
by the Company by written notice of such removal delivered to the Depositary,
such resignation or removal to take effect upon the appointment of and
acceptance by a successor depositary as provided in the Deposit Agreement.
The
Depositary may, upon written request or written approval of the Company, at
any
time appoint substitute or additional Custodians and the term “Custodian”
refers
to each Custodian or all Custodians as the context requires.
(20)
Amendment
of Deposit Agreement and Receipts.
The
Receipts and the Deposit Agreement may be amended by agreement between the
Company and the Depositary. Any amendment that shall impose or increase any
fees
or charges (other than the fees and charges listed in clauses (i) through (iv)
of paragraph (8)) or that shall otherwise prejudice any substantial existing
right of Holders, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment shall
have been given to the Holders. Every Holder at the expiration of such 30 days
shall be deemed by holding such Receipt to consent and agree to such amendment
and to be bound by the Deposit Agreement or the Receipt as amended thereby.
In
no event shall any amendment impair the right of the Holder hereof to surrender
this Receipt and receive therefor the Deposited Securities represented hereby,
except in order to comply with mandatory provisions of applicable law.
A-5
(21)
Termination
of Deposit Agreement.
The
Depositary will at any time at the direction of the Company terminate the
Deposit Agreement by mailing notice of such termination to the Holders at least
30 days prior to the date fixed in such notice for such termination. The
Depositary may terminate the Deposit Agreement, upon the notice set forth in
the
preceding sentence, at any time after 90 days after the Depositary shall have
resigned, provided
that no
successor depositary shall within such 90 days have been appointed and accepted
its appointment within such 90 days. After the date so fixed for termination,
the Depositary will perform no further acts under the Deposit Agreement, except
to advise Holders of such termination, receive and hold distributions on
Deposited Securities (or sell property or rights or convert Deposited Securities
into cash) and deliver Deposited Securities being withdrawn. As soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account
the
net proceeds of any such sale, together with any other cash then held by it
under the Deposit Agreement, without liability for interest, in trust for the
pro
rata
benefit
of the Holders of Receipts not theretofore surrendered.
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