Exhibit 1
[EXECUTION COPY]
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CHINA WIRELESS TECHNOLOGIES LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of September 8, 2006
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ARTICLE 1. DEFINITIONS........................................................................1
SECTION 1.01 AMERICAN DEPOSITARY SHARES.....................................................1
SECTION 1.02 BENEFICIAL OWNER...............................................................1
SECTION 1.03 COMMISSION.....................................................................1
SECTION 1.04 COMPANY........................................................................2
SECTION 1.05 CUSTODIAN......................................................................2
SECTION 1.06 DEPOSIT, DELIVER, EXECUTE, ISSUE, REGISTER, SURRENDER, TRANSFER,
WITHDRAW OR CANCEL.............................................................2
SECTION 1.07 DEPOSIT AGREEMENT..............................................................2
SECTION 1.08 DEPOSITARY; CORPORATE TRUST OFFICE.............................................2
SECTION 1.09 DEPOSITED SECURITIES...........................................................2
SECTION 1.10 DOLLARS; USD...................................................................2
SECTION 1.11 FOREIGN REGISTRAR..............................................................3
SECTION 1.12 OWNER..........................................................................3
SECTION 1.13 RECEIPTS.......................................................................3
SECTION 1.14 REGISTRAR......................................................................3
SECTION 1.15 RESTRICTED SECURITIES..........................................................3
SECTION 1.16 SECURITIES ACT OF 1933.........................................................3
SECTION 1.17 SECURITIES EXCHANGE ACT OF 1934................................................3
SECTION 1.18 SHARES.........................................................................3
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS..............................................................4
SECTION 2.01 FORM AND TRANSFERABILITY OF RECEIPTS...........................................4
SECTION 2.02 DEPOSIT OF SHARES..............................................................4
SECTION 2.03 EXECUTION AND DELIVERY OF RECEIPTS.............................................5
SECTION 2.04 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS.....................6
SECTION 2.05 SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.................................6
SECTION 2.06 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS......7
SECTION 2.07 LOST RECEIPTS, ETC.............................................................8
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS...........................8
SECTION 2.09 PRE-RELEASE OF RECEIPTS........................................................8
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS....................9
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION..............................9
SECTION 3.02 LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES...............................9
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES................................................9
SECTION 3.04 DISCLOSURE OF INTERESTS........................................................9
ARTICLE 4. THE DEPOSITED SECURITIES..........................................................10
SECTION 4.01 CASH DISTRIBUTIONS............................................................10
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS...............................10
SECTION 4.03 DISTRIBUTIONS IN SHARES.......................................................11
SECTION 4.04 RIGHTS........................................................................11
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY................................................12
SECTION 4.06 FIXING OF RECORD DATE.........................................................13
SECTION 4.07 VOTING OF DEPOSITED SECURITIES................................................14
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES........................................15
SECTION 4.09 REPORTS.......................................................................15
SECTION 4.10 LISTS OF OWNERS...............................................................15
SECTION 4.11 WITHHOLDING...................................................................15
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY....................................16
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY....................16
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR THE COMPANY...........16
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SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY..................17
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY.....................................17
SECTION 5.05 THE CUSTODIAN.................................................................18
SECTION 5.06 NOTICES AND REPORTS...........................................................19
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC................................19
SECTION 5.08 INDEMNIFICATION...............................................................20
SECTION 5.09 CHARGES OF DEPOSITARY.........................................................20
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS.............................................21
SECTION 5.11 EXCLUSIVITY...................................................................21
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS..........................................21
ARTICLE 6. AMENDMENT AND TERMINATION.........................................................21
SECTION 6.01 AMENDMENT.....................................................................21
SECTION 6.02 TERMINATION...................................................................22
ARTICLE 7. MISCELLANEOUS.....................................................................23
SECTION 7.01 COUNTERPARTS..................................................................23
SECTION 7.02 NO THIRD PARTY BENEFICIARIES..................................................23
SECTION 7.03 SEVERABILITY..................................................................23
SECTION 7.04 OWNERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT.......................23
SECTION 7.05 NOTICES.......................................................................23
SECTION 7.06 ARBITRATION; SETTLEMENT OF DISPUTES...........................................24
SECTION 7.07 SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR
SERVICE OF PROCESS............................................................25
SECTION 7.08 WAIVER OF IMMUNITIES..........................................................25
SECTION 7.09 GOVERNING LAW.................................................................26
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of September 8, 2006 among CHINA WIRELESS
TECHNOLOGIES LIMITED, 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 1.01 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 4.03 or a change in
Deposited Securities covered by Section 4.08 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 1.02 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 1.03 Commission.
The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
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SECTION 1.04 Company.
The term "Company" shall mean China Wireless Technologies Limited,
incorporated under the laws of the Cayman Islands, and its successors.
SECTION 1.05 Custodian.
The term "Custodian" shall mean the Hong Kong office of The Hong Kong 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 5.05,
as substitute or additional custodian or custodians hereunder, as the context
shall require and shall also mean all of them collectively.
SECTION 1.06 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 Chinese or Cayman Islands law to effect transfers
of securities and not to the physical transfer of certificates representing the
Shares.
SECTION 1.07 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.
SECTION 1.08 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 1.09 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, including
without limitation Shares that have not been successfully withdrawn or delivered
upon surrender of Receipts, 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 4.05.
SECTION 1.10 Dollars; USD
The terms "Dollars" or "USD" shall mean United States dollars.
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SECTION 1.11 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, including without limitation any securities depository
for the Shares.
SECTION 1.12 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 1.13 Receipts.
The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.14 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 to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.15 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 to the Securities Act of
1933), or which are held 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 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 or China or the Cayman Islands,
or under a shareholder agreement or the Articles of Association of the Company.
SECTION 1.16 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.17 Securities Exchange Act of 1934.
The term "Securities Exchange Act of 1934" shall mean the United States
Securities Exchange Act of 1934, 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 free of any pre-emptive rights of the holders of outstanding Shares or
hereafter validly issued and outstanding and fully paid, nonassessable and free
of any pre-emptive rights of the holders of outstanding
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Shares or interim certificates representing such Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.01 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 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 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; 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, and neither the Depositary
nor the Company shall have any obligation or be subject to any liability under
this Deposit Agreement to any holder of a Receipt unless such holder is the
Owner thereof.
SECTION 2.02 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 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
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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, which may
include a legal opinion issued by the Company's Cayman and/or Chinese counsel,
that any necessary approval has been granted by any governmental body in the
Cayman Islands and 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 specified
above, 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 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
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
specified above, 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
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the Depositary of the fees and expenses of the Depositary for the execution and
delivery of such Receipt or Receipts as provided in Section 5.09, and of all
taxes and governmental charges and fees payable in connection with such deposit
and the transfer of the Deposited Securities.
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement including payment of the fees of the Depositary as provided in Section
5.09, 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 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.
SECTION 2.05 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
5.09 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 in the name of such Owner or as ordered by him
or 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
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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 2.06, 3.01 and 3.02
and to the other terms and conditions of this Deposit Agreement, to or upon the
written order of the person or persons designated in the order delivered to the
Depositary as 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 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.
SECTION 2.06 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 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 2.06.
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, 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 the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement, 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
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Securities. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any Restricted
Securities (including without limitation any Shares bearing a legend indicating
they are Restricted Securities or any Shares deposited by a person identified to
the Depositary by the Company as an affiliate of the Company), unless a
registration statement is in effect as to such Shares.
SECTION 2.07 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 2.08 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 2.09 Pre-Release of Receipts.
Notwithstanding Section 2.03 hereof, the Depositary may execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.02
("Pre-Release"). The Depositary may, pursuant to Section 2.05, 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 from
the person to whom Receipts are to be delivered that such person, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized with cash or such other collateral as the
Depositary deems appropriate, (c) terminable by the Depositary on not more than
five (5) business days notice, and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The number of American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
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ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS
OF RECEIPTS.
SECTION 3.01 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.
SECTION 3.02 Liability of Owner or Beneficial 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 or Beneficial 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 pursuant to relevant
laws and this Deposit Agreement, may withhold any dividends or other
distributions, or may sell for the account of the Owner or Beneficial 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 or Beneficial Owner of such Receipt
shall remain liable for any deficiency.
SECTION 3.03 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 are validly issued, fully paid, nonassessable and free 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 such Shares and the Receipts evidencing American
Depositary Shares representing such Shares would not be Restricted Securities.
Such representations and warranties shall survive the deposit of Shares and
issuance of Receipts.
SECTION 3.04 Disclosure of Interests.
The Company may from time to time request Owners to provide information
(a) as to the capacity in which such Owners own or owned American Depositary
Shares, (b) regarding the identity of any other persons then or previously
interested in such American Depositary Shares and (c) regarding the nature of
such interest and various other matters pursuant to applicable law or the
Articles of Association or other such corporate document of the Company, all as
if such American Depositary Shares were to the extent practicable the
9
underlying Shares. Each Owner and Beneficial Owner agrees to provide any
information requested by the Company or the Depositary pursuant to this Section.
The Depositary agrees to use reasonable efforts to comply with written
instructions received from the Company requesting that the Depositary forward
any such requests to Owners or to forward to the Company any responses to such
requests received by the Depositary.
ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.01 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 4.05, 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 5.09) 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. In accordance with relevant Cayman and
Chinese laws, the Company or its agent will remit to the appropriate
governmental agency in the Cayman Islands and 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 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Sections 4.01, 4.03 or 4.04, the Depositary shall 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 of 1933 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
10
fees and expenses of the Depositary as provided in Section 5.09) shall be
distributed by the Depositary to the Owners entitled thereto as in the case of a
distribution received in cash.
SECTION 4.03 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, 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 the fees and
expenses of the Depositary as provided in Section 5.09. The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company that such distribution does not require registration
under the Securities Act of 1933 or is exempt from registration under the
provisions of such Act. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary shall sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01. 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 4.04 Rights.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available 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 discretion that
it is lawful and feasible to make such rights available to all or 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.
11
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 2.02 of this Deposit Agreement, and shall, pursuant to Section 2.03 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 discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may, subject
to all applicable legal requirements, 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 5.09 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 of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act. If an Owner of Receipts
requests the distribution of warrants or other instruments, notwithstanding that
there has been no such registration under such 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.
Notwithstanding any other provision of this Deposit Agreement, under no
circumstances shall the Depositary, any Owner or any other person have the right
to require the Company to register, under the Securities Act of 1933 or
otherwise, any rights or securities issued by the Company.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
SECTION 4.05 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
12
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 5.09.
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,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
SECTION 4.06 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, the Depositary
shall fix a record date (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, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting, or (iii) responsible for any fee assessed by the
Depositary pursuant to this Deposit Agreement, or (b) on or after which each
American Depositary Share will represent the changed number of Shares. Subject
to the provisions of Sections 4.01 through 4.05 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
13
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 4.07 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 sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Company, (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 Cayman or China law and of the 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, including an express
indication that such instructions may be given or 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 an Owner on such record date, received on or before
the date established by the Depositary for such purpose, 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 the Shares or other Deposited Securities, other than in
accordance with such instructions or deemed instructions. If the Depositary does
not receive instructions from any Owner with respect to any of the Deposited
Securities represented by the American Depositary Shares evidenced by such
Owner's Receipts on or before the date established by the Depositary for such
purpose, such Owner shall be deemed, and the Depositary shall deem such Owner,
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 shall 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 provide such information as promptly as practicable in
writing) that (i) the Company does not wish such proxy given, (ii) substantial
opposition exists or (iii) such matter materially and adversely affects the
rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the instruction date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
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 will request the Depositary to act under this Section, the
Company shall endeavor to give the Depositary notice of any such meeting or
solicitation and details concerning the matters to be voted upon sufficiently in
advance of the meeting date.
14
SECTION 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 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, the right to receive 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, and shall if the Company shall so request, 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 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary 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, upon written request of the Company, send to
the Owners copies of such reports when furnished by the Company pursuant to
Section 5.06. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English, to the extent such materials are required to be translated
into English under the Securities Exchange Act of 1934 or any rule or regulation
of the Commission.
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.
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
pursuant to relevant laws, 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
15
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 5.01 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, 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.
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 appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
The Company will have the right to inspect the transfer and registration
records of the Depositary, take copies thereof and to require the Depositary,
the Registrar and any co-registrars, at the Company's expense, to supply copies
of such portions of such records as the Company may reasonably request.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, (i) if by reason of any provision of
any present or future law or regulation of the United States or any other
country (including the Cayman Islands and China), or of any governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the 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 Deposited Securities it is
provided shall be done or performed; (ii) 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 (iii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement, (iv) for the inability of any
Owner or holder to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms
16
of this Deposit Agreement, made available to Owners or holders, or (v) for any
special, consequential or punitive damages for any breach of the terms of this
Deposit Agreement. Where, by the terms of a distribution pursuant to Sections
4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering or distribution
pursuant to Section 4.04 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.
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners, except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it 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 on behalf of any Owner
or holder or other person.
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 of 1933 is intended by
any provision of this Deposit Agreement.
SECTION 5.04 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 pursuant to Section
6.02, such resignation to take
17
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, to become effective upon the later of (i) the
120th day after delivery of the notice to the Depositary and (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 its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. Notwithstanding
the foregoing (1) if such succession is the result of the removal of such
predecessor, then upon (a) payment by the Company to such predecessor of all
sums due and payable by the Company to such predecessor hereunder, (b) payment
to such predecessor of all other sums due it by persons other than the Company
pursuant to the terms of this Deposit Agreement, and (c) the written request of
the Company, such predecessor 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, or (2) if such
succession is the result of the resignation of such predecessor, then upon (a)
payment by the Company to such predecessor of all sums due and payable by the
Company to such predecessor hereunder, and (b) the written request of the
Company, such predecessor 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, provided, however, that such predecessor
shall nevertheless be entitled to receive payment of all such other sums due it
by persons other than the Company pursuant to the terms of this Deposit
Agreement. 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 5.05 The Custodian.
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 such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, use its reasonable efforts to appoint a substitute
custodian or custodians, each of which shall thereafter be a Custodian
hereunder. The Depositary in its discretion may appoint substitute or additional
custodian or custodians, which shall thereafter be one of the Custodians
hereunder. Upon demand of the Depositary any Custodian shall
18
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 any such
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 necessary to give to such
Custodian full and complete power and authority as agent hereunder of such
successor depositary.
SECTION 5.06 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 under the Securities Exchange Act of 1934 or
any rule or 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 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution to
its shareholders 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 will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Company, which counsel
shall be satisfactory to the Depositary, stating whether or not the Distribution
requires a Registration Statement under the Securities Act of 1933 to be in
effect prior to making such Distribution available to Owners entitled thereto.
If in the opinion of such counsel a Registration Statement is required, such
counsel shall furnish to the Depositary a written opinion as to whether or not
there is a Registration Statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor any
company 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
19
Company or any such affiliate, unless a Registration Statement is in effect as
to such Shares under the Securities Act of 1933.
SECTION 5.08 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, any fees and
expenses incurred in seeking, enforcing or collecting such indemnity and the
reasonable fees and expenses of counsel) which may arise out of any registration
with the Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or out of 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 Depositary agrees to indemnify the Company, its directors, employees,
agents and affiliates 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 acts performed or omitted by the Depositary or
its Custodian or any of their respective directors, employees, agents and
affiliates due to their negligence or bad faith.
SECTION 5.09 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 at least 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 4.03), or by Owners, as applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to 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 4.05, (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 2.03, 4.03 or 4.04 and the surrender of Receipts
pursuant to Section 2.05 or 6.02, (6) 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 4.01 through 4.04
hereof, (7) a fee for the distribution of securities pursuant to
20
Section 4.02, 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) in addition
to any fee charged under clause (6), a fee of $.02 or less per American
Depositary Share (or portion thereof) for depositary services, which will accrue
on the last day of each calendar year and which will be payable as provided in
clause (9) below; and (9) 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 of record as of the date or dates
set by the Depositary in accordance with Section 4.06 and shall be collected at
the sole discretion of the Depositary by billing such Owners for such charge or
by deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.09 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
requests that such papers be retained for a longer period or turned over to the
Company or to a successor depositary.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance of
American 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 and the Company shall update that
list on a regular basis. 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 6.01 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 or Beneficial Owners of
Receipts 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
21
become effective as to outstanding Receipts until the expiration of thirty days
after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner 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 6.02 Termination.
The Depositary at any time at the direction of the Company shall terminate
this Deposit Agreement by mailing notice of such termination to the Company and
to the Owners of all Receipts then outstanding at least 90 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 90 days
shall have expired after the Depositary shall have delivered to the Company a
written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment as provided in Section 5.04. 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 2.05, 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 one year 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 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 5.08 and 5.09 hereof.
22
ARTICLE 7. MISCELLANEOUS.
SECTION 7.01 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 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.03 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 7.04 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 7.05 Notices.
Any and all notices to be given to the Company 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 0/X Xxxxx X
Xxxx Xxxx Xxxxx, Tian An Cyberpark, Che Gongmiao, Shenzhen, China, or any other
place to which the Company may have transferred its principal office.
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, 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.
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.
23
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 7.06 Arbitration; Settlement of Disputes.
(a) Any controversy, claim or cause of action brought by any party
hereto against the Company arising out of or relating to the Shares or
other Deposited Securities, the American Depositary Shares, the Receipts
or this Agreement, or the breach hereof or thereof, shall be settled by
arbitration in accordance with the International 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;
provided, however, that in the event of any third-party litigation to
which the Depositary is a party and to which the Company may properly be
joined, the Company may be so joined in any court in which such litigation
is proceeding; and provided, further, that any such controversy, claim or
cause of action brought by a party hereto against the Company relating to
or based upon the provisions of the Federal securities laws of the United
States or the rules and regulations promulgated thereunder may, but need
not, be submitted to arbitration as provided in this Section 7.06.
The place of the arbitration shall be Xxx Xxxx xx Xxx Xxxx, Xxxxx xx
Xxx Xxxx, Xxxxxx Xxxxxx of America, and the language of the arbitration
shall be English.
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 such alignment and appointment
shall not have occurred within twenty (20) calendar days after the
initiating party serves the arbitration demand, the American Arbitration
Association shall appoint the three arbitrators. The parties and the
American Arbitration Association may appoint from among the nationals of
any country, whether or not a party is a national of that country.
The arbitrators shall have no authority to award any consequential,
special or punitive damages or other damages not measured by the
prevailing party's actual damages and may not, in any event, make any
ruling, finding or award that does not conform to the terms and conditions
of this Agreement
(b) Any controversy, claim or cause of action arising out of or relating
to the Shares or other Deposited Securities, the American Depositary Shares, the
Receipts or this Deposit Agreement not subject to arbitration under this Section
7.06 shall be litigated in the Federal and state courts in the Borough of
Manhattan, The City of New York and the Company
24
hereby submits to the personal jurisdiction of the court in which such action or
proceeding is brought.
SECTION 7.07 Submission to Jurisdiction; Appointment of Agent for Service
of Process; Jury Trial Waiver.
The Company hereby (i) irrevocably designates and appoints CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, 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.
EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT,
EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED
SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING
EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
SECTION 7.08 Waiver of Immunities.
To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter become entitled to, or have attributed to it,
any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its
25
obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, the Company, to the fullest extent
permitted by law, hereby irrevocably and unconditionally waives, and agrees not
to plead or claim, any such immunity and consents to such relief and
enforcement.
SECTION 7.09 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, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of the Cayman Islands.
26
IN WITNESS WHEREOF, CHINA WIRELESS TECHNOLOGIES LIMITED 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.
CHINA WIRELESS TECHNOLOGIES LIMITED
By:
-------------------------------------
Name: Xxxxx Xxxx
Title: CFO
THE BANK OF NEW YORK,
as Depositary
By:
-------------------------------------
Name: Xxxxxx X. Xx Xxxxxxxx
Title: Vice President
27
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share
represents twenty (20) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
PAR VALUE HK$0.01 EACH OF
CHINA WIRELESS TECHNOLOGIES LIMITED
(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, par value HK$0.01 (herein called
"Shares"), of China Wireless Technologies Limited, incorporated under the laws
of the Cayman Islands (herein called the "Company"). At the date hereof, each
American Depositary Share represents twenty (20) ordinary shares deposited or
subject to deposit under the Deposit Agreement (as such term is hereinafter
defined) at the 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
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 September 8, 2006 (herein called 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 defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of the Owner hereof or as ordered by
him or certificates properly endorsed or accompanied by proper instruments of
transfer and (b) any other securities, property and cash to which such Owner is
then entitled in respect of this Receipt. Such delivery will be made at the
option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registerable on the books of the
Depositary at its Corporate Trust Office by the Owner hereof in person or by a
duly authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the fees and expenses of the Depositary
and upon compliance with such regulations, if any, as the Depositary may
establish for such purpose. This Receipt may be split into other such Receipts,
or may be combined with other such Receipts into one Receipt, 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 the Shares or the presenter
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge
2
and any stock transfer or registration fee with respect thereto (including any
such tax or charge and fee with respect to Shares being deposited or withdrawn)
and payment of any applicable fees as provided in this Receipt, may require the
production of proof satisfactory to it as to the identity and genuineness of any
signature and may also require compliance with any regulations the Depositary
may establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Article 3.
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, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, 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 the Deposit Agreement any Restricted Securities (including without
limitation any Shares bearing a legend indicating they are Restricted Securities
or any Shares deposited by a person identified to the Depositary by the Company
as an affiliate of the Company), unless a registration statement is in effect as
to such Shares.
4. LIABILITY OF OWNER OR BENEFICIAL 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 hereby, such tax or other governmental charge shall be
payable by the Owner or Beneficial 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 pursuant to relevant laws and to
the Deposit Agreement, may withhold any dividends or other distributions, or may
sell for the account of the Owner or Beneficial Owner hereof any part or all of
the Deposited Securities represented by the American Depositary Shares evidenced
by this Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental charge
and the Owner or Beneficial Owner hereof shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares hereunder and under the Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor are validly issued, fully paid, non-assessable, and free of
any preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person shall also be
deemed to represent that such Shares and the Receipts
3
evidencing American Depositary Shares representing such Shares would not be
Restricted Securities. Such representations and warranties shall survive the
deposit of Shares and issuance of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner 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. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary, which may
include a legal opinion issued by the Company's Cayman and/or Chinese counsel,
that any necessary approval has been granted by any governmental body in the
Cayman Islands and 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 at least 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 4.03 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to 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 terms of 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 4.05 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 2.03, 4.03 or 4.04 of the Deposit Agreement and
the surrender of Receipts pursuant to Section 2.05 or 6.02 of the Deposit
Agreement, (6) a fee of $.02 or less per American Depositary Share (or portion
thereof) for any cash distribution made pursuant to Sections 4.01 through 4.04
of the Deposit Agreement, (7) a fee for the distribution of securities pursuant
to Section 4.02 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
4
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) in addition
to any fee charged under clause (6), a fee of $.02 or less per American
Depositary Share (or portion thereof) for depositary services, which will
accrue on the last day of each calendar year and which will be payable as
provided in clause (9) below; and (9) 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 of
record as of the date or dates set by the Depositary in accordance with Section
4.06 of the Deposit Agreement and shall be collected at the sole discretion of
the Depositary by billing such Owners for such charge or by deducting such
charge from one or more cash dividends or other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any class
of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.02 of the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to
Section 2.05 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 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 from the person
to whom Receipts are to be delivered that such person, or its customer, owns the
Shares or Receipts to be remitted, as the case may be, (b) at all times fully
collateralized with cash or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of American Depositary Shares
which are outstanding at any time as a result of Pre-Releases will not normally
exceed thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive 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, provided, however, that the
Depositary, notwithstanding any notice to the contrary, may treat the person in
whose name this Receipt is registered on the books of the Depositary as the
absolute owner hereof for the purpose of determining the person entitled to
distribution of dividends or other distributions or to any notice provided for
in the Deposit Agreement or for all other purposes, and neither the Depositary
nor the Company shall have any obligation or
5
be subject to any liability under the Deposit Agreement to any holder of a
Receipt unless such holder is the Owner thereof.
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 signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying by Owners and Beneficial Owners at the public reference
facilities maintained by the Commission located at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also, upon written request, send to Owners of Receipts copies of
such reports when furnished by the Company pursuant to the Deposit Agreement.
Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English to the extent such materials are required to be translated into English
pursuant to any regulations of the Commission.
The Depositary will 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 of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into dollars and will distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Article
7 hereof and Section 5.09 of the Deposit Agreement) to the Owners of Receipts
entitled thereto, provided, however, that in the event that the Company or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of
6
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 Section 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Sections 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will 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 of 1933 in order to be distributed to Owners or Beneficial Owners
hereof) 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 Article 7 hereof and Section 5.09 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.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may and shall if the Company shall so request, distribute
to the Owners of outstanding Receipts entitled thereto, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares evidenced by Receipts,
including the withholding of any tax or other governmental charge as provided in
Section 4.11 of the Deposit Agreement and the payment of the fees and expenses
of the Depositary as provided in Article 7 hereof and Section 5.09 of the
Deposit Agreement. The Depositary may withhold any such distribution of Receipts
if it has not received satisfactory assurances from the Company that such
distribution does not require registration under the Securities Act or is exempt
from registration under the provisions of such Act. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary will sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.01 of the Deposit Agreement. If additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold
pursuant to relevant laws, 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
7
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. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available 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 discretion that
it is lawful and feasible to make such rights available to all or 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, 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 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 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 13, 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 discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell,
subject to all applicable legal requirements, 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 5.09 of the Deposit
8
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 of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act. If an Owner of Receipts
requests the distribution of warrants or other instruments, notwithstanding that
there has been no such registration under such 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.
Notwithstanding any other provision of the Deposit Agreement, under no
circumstances shall the Depositary, any Owner or any other person have the right
to require the Company to register, under the Securities Act of 1933 or
otherwise, any rights or securities issued by the Company.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
14. 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 5.09
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,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency)
9
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.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
American Depositary Share, or whenever the Depositary shall receive notice of
any meeting of holders of Shares or other Deposited Securities, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) responsible for any fee
assessed by the Depositary pursuant to the Deposit Agreement, or (b) on or after
which each American Depositary Share will represent the changed number of
Shares, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
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 of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary from the Company, (b) a statement
that the Owners of Receipts as of the close of business on a specified record
date will be entitled, subject to any applicable provision of Cayman or Chinese
law and of the 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 including an express indication that such instructions
may be given or 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 an Owner of a Receipt on such record date, received on or before the
date established by the Depositary for
10
such purpose, 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 such 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 the Shares or other
Deposited Securities, other than in accordance with such instructions or deemed
instructions. If the Depositary does not receive instructions from any Owner
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Owner's Receipts on or before the date
established by the Depositary for such purpose, such Owner shall be deemed, and
the Depositary shall deem such Owner, 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 shall 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 provide such information as promptly as
practicable in writing) that (i) the Company does not wish such proxy given,
(ii) substantial opposition exists or (iii) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the instruction date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.03 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,
the right to receive 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, and shall if the Company shall so
request, 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, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, (i) if by reason of any provision of
any present or future law or regulation of the United States or any other
country (including the Cayman Islands and China), or of any other governmental
or regulatory authority, or by reason of any provision, present or future, of
the 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; (ii) 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, (iii) by reason of
any exercise of, or failure to exercise, any discretion provided for in the
Deposit Agreement (iv) for the inability of any Owner or holder to benefit from
any distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Owners or
11
holders, or (v) for any special, consequential or punitive damages for any
breach of the terms of the Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.01, 4.02 or 4.03 of the Deposit Agreement,
or an offering or distribution pursuant to Section 4.04 of the Deposit
Agreement, 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. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or Beneficial Owners of Receipts, except that they 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, on behalf of any Owner or holder or
other person. 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 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. The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with a matter arising wholly after the removal
or resignation of the Depositary, provided that 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
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, any fees and expenses
incurred in seeking, enforcing or collecting such indemnity and the reasonable
fees and expenses of counsel) which may arise out of any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities or
the offer or sale thereof in the United States or out of acts performed or
omitted, pursuant to the provisions of the Deposit Agreement and of the
Receipts, as the same may be amended, modified, or supplemented from time to
time, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them, or (ii) by the Company or
any of its directors, employees, agents and affiliates. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company
pursuant to Section 6.02 of the Deposit Agreement, such resignation to take
effect upon the appointment of a successor depositary and its acceptance of such
appointment as thereinafter provided.
The Depositary may at any time be removed by the Company by 120 days prior
12
written notice of such removal, to become effective upon the later of (i) the
120th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary shall resign or be removed, the Company
shall use its best efforts to appoint a successor depositary, which shall be a
bank or trust company having an office in the Borough of Manhattan, The City of
New York. Every successor depositary shall execute and deliver to its
predecessor and to the Company an instrument in writing accepting its
appointment thereunder, 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. Notwithstanding the foregoing (1) if
such succession is the result of the removal of such predecessor, then upon (a)
payment by the Company to such predecessor of all sums due and payable by the
Company to such predecessor, (b) payment to such predecessor of all other sums
due it by persons other than the Company pursuant to the terms of the Deposit
Agreement, and (c) the written request of the Company, such predecessor shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor under the Deposit Agreement, 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, or (2) if such succession is the result of the
resignation of such predecessor, then upon (a) payment by the Company to such
predecessor of all sums due and payable by the Company to such predecessor, and
(b) the written request of the Company, such predecessor shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor under the Deposit Agreement, 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, provided, however, that such predecessor shall
nevertheless be entitled to receive payment of all such other sums due it by
persons other than the Company pursuant to the terms of the Deposit Agreement.
Any such successor depositary shall promptly mail notice of its appointment to
the Owners.
The Depositary in its discretion 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 or Beneficial Owners of
Receipts 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 and 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
thirty days after notice of such amendment shall have been given to the Owners
of outstanding Receipts. Every Owner of a Receipt at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to surrender such Receipt and receive therefor the
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Deposited Securities represented thereby except in order to comply with
mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to the
Company and to the Owners of all Receipts then outstanding at least 90 days
prior to the date fixed in such notice for such termination. The Depositary may
likewise terminate the Deposit Agreement by mailing notice of such termination
to the Company and the Owners of all Receipts then outstanding if at any time 90
days shall have expired after the Depositary shall have delivered to the Company
a written notice of its election to resign and a successor depositary shall not
have been appointed and accepted its appointment as provided in the Deposit
Agreement. On and after the date of termination, the Owner of a Receipt will,
upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.05 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 one year from the
date of termination, the Depositary may sell the Deposited Securities then held
under the Deposit Agreement and may thereafter hold uninvested the net proceeds
of any such sale, together with any other cash then held by it thereunder,
unsegregated and without liability for interest, for the pro rata benefit of the
Owners of Receipts which have not theretofore been surrendered, such Owners
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net proceeds
and other cash (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Owner of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). Upon the termination of the
Deposit Agreement, the Company shall be discharged from all obligations under
the Deposit Agreement except for its obligations to the Depositary with respect
to indemnification, charges, and expenses.
22. ARBITRATION; WAIVER OF IMMUNITIES.
The Deposit Agreement provides that any controversy, claim or cause of
action brought by any party to the Deposit Agreement against the Company arising
out of or relating to the Shares or other Deposited Securities, the American
Depositary Shares, the Receipts or
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the Deposit Agreement, or the breach thereof, shall be settled by arbitration in
accordance with the International Arbitration Rules of the American Arbitration
Association, and that judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction thereof; provided, however, that in the
event of any third-party litigation to which the Depositary is a party and to
which the Company may properly be joined, the Company may be so joined in any
court in which such litigation is proceeding; and provided, further, that any
such controversy, claim, cause of action, or other dispute brought by a party to
the Deposit Agreement against the Company relating to or based upon the
provisions of the Federal securities laws of the United States or the rules and
regulations promulgated thereunder may, but need not, be submitted to
arbitration as provided in the Deposit Agreement. The Deposit Agreement further
provides that any controversy, claim or cause of action arising out of or
relating to the Shares or other Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement not subject to arbitration under
the Deposit Agreement shall be litigated in the Federal and state courts in the
Borough of Manhattan, The City of New York and the Company hereby submits to the
personal jurisdiction of the court in which such action or proceeding is
brought.
To the extent that the Company or any of its properties, assets or
revenues may have or hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement, the Company, to the fullest
extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
23. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES; JURY TRIAL WAIVER.
In the Deposit Agreement, the Company has (i) appointed CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, 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) consented and submitted 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) agreed 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.
EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT,
EACH OWNER AND HOLDER HEREOF) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED
SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE
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RECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR
THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY
QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY).
To the extent that the Company or any of its properties, assets or
revenues may have or hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, in any jurisdiction
in which proceedings may at any time be commenced, with respect to its
obligations, liabilities or any other matter under or arising out of or in
connection with the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or the Deposit Agreement, the Company, to the fullest
extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
24. DISCLOSURE OF INTERESTS.
The Company may from time to time request Owners to provide information
(a) as to the capacity in which such Owners own or owned American Depositary
Shares, (b) regarding the identity of any other persons then or previously
interested in such American Depositary Shares and (c) regarding the nature of
such interest and various other matters pursuant to applicable law or the
Articles of Association or other such corporate document of the Company, all as
if such American Depositary Shares were to the extent practicable the underlying
Shares. Each Owner and Beneficial Owner agrees to provide any information
requested by the Company or the Depositary pursuant to this Section. The
Depositary agrees to use reasonable efforts to comply with written instructions
received from the Company requesting that the Depositary forward any such
requests to Owners or to forward to the Company any responses to such requests
received by the Depositary.
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