--------------------------------------------------------------------------------
Dated o 2005
WATCHDATA TECHNOLOGIES LTD.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
--------------------------------------------------------------------------------
WHITE & CASE
0 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
TABLE OF CONTENTS
Page
1. CERTAIN DEFINITIONS.................................................................................1
2. ADRS................................................................................................2
3. DEPOSIT OF SHARES...................................................................................2
4. ISSUE OF ADRS.......................................................................................3
5. DISTRIBUTIONS ON DEPOSITED SECURITIES...............................................................3
6. WITHDRAWAL OF DEPOSITED SECURITIES..................................................................3
7. SUBSTITUTION OF ADRS................................................................................4
8. CANCELLATION AND DESTRUCTION OF ADRS................................................................4
9. THE CUSTODIAN.......................................................................................4
10. CO-REGISTRARS AND CO-TRANSFER AGENTS................................................................4
11. LISTS OF HOLDERS....................................................................................4
12. DEPOSITARY'S AGENTS.................................................................................4
13. SUCCESSOR DEPOSITARY................................................................................5
14. REPORTS.............................................................................................5
15. ADDITIONAL SHARES...................................................................................5
16. INDEMNIFICATION.....................................................................................5
17. NOTICES.............................................................................................6
18. MISCELLANEOUS.......................................................................................6
19. CONSENT TO JURISDICTION.............................................................................7
EXHIBIT A [FORM OF FACE OF ADR]......................................................................
DEPOSIT AGREEMENT dated o 2005 (the "Deposit Agreement")
BETWEEN:
(1) WATCHDATA TECHNOLOGIES LTD. and its successors (the "Company");
(2) DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary hereunder (the
"Depositary"); and
(3) All holders from time to time of AMERICAN DEPOSITARY RECEIPTS issued
hereunder ("ADRs") evidencing American Depositary Shares ("ADSs")
representing deposited Shares (defined below).
THE PARTIES HERETO AGREE as follows:
1. CERTAIN DEFINITIONS
"ADR Register" is defined in paragraph (3) of the form of ADR.
"ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form, and the terms
and conditions governing the Direct Registration ADRs (as hereinafter
defined), shall be substantially in the form of Exhibit A annexed
hereto (the "form of ADR"). The term "Direct Registration ADR" means an
ADR, the ownership of which is recorded on the Direct Registration
System. References to "ADRs" shall include certificated ADRs and Direct
Registration ADRs, unless the context otherwise requires. The form of
ADR is hereby incorporated herein and made a part hereof; the
provisions of the form of ADR shall be binding upon the parties hereto.
Subject to paragraph (13) of the form of ADR, each "ADS" evidenced by
an ADR represents the right to receive 2 Shares and a pro rata share in
any other Deposited Securities.
"Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration
ADRs, shall refer to an entry or entries or an electronic transfer or
transfers in the Direct Registration System, and, when used with
respect to ADRs in physical certificated form, shall refer to the
physical delivery, execution, issuance, registration, surrender,
transfer or cancellation of certificates representing the ADRs.
"Delivery Order" is defined in Section 3.
"Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares,
securities, property and cash at such time held by the Depositary or
the Custodian in respect or in lieu of such deposited Shares and other
Shares, securities, property and cash.
"Direct Registration System" means the system for the uncertificated
registration of ownership of securities established by The Depository
Trust Company ("DTC") and utilized by the Depositary pursuant to which
the Depositary may record the ownership of ADRs without the issuance of
a certificate, which ownership shall be evidenced by periodic
statements issued by the Depositary to the Holders entitled thereto.
For purposes hereof, the Direct Registration System shall include
access to the Profile Modification System maintained by DTC which
provides for automated transfer of ownership between DTC and the
Depositary.
"Holder" means the person or persons in whose name an ADR is registered
on the ADR Register.
"Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
"Securities Exchange Act of 1934" means the United States Securities
Exchange Act of 1934, as from time to time amended.
"Shares" mean the ordinary shares of the Company, and shall include the
rights to receive Shares specified in paragraph (1) of the form of ADR.
"Transfer Office" is defined in paragraph (3) of the form of ADR.
"Withdrawal Order" is defined in Section 6.
2. ADRS
2.1 ADRs in certificated form shall be engraved, printed or otherwise
reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at
the request of the Company typewritten and photocopied on plain or
safety paper, and shall be substantially in the form set forth in the
form of ADR, with such changes as may be required by the Depositary or
the Company to comply with their obligations hereunder, any applicable
law, regulation or usage or to indicate any special limitations or
restrictions to which any particular ADRs are subject. ADRs may be
issued in denominations of any number of ADSs. ADRs in certificated
form shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. ADRs in
certificated form bearing the facsimile signature of anyone who was at
the time of execution a duly authorized officer of the Depositary shall
bind the Depositary, notwithstanding that such officer has ceased to
hold such office prior to the delivery of such ADRs.
2.2 Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be
evidenced by Direct Registration ADRs, unless certificated ADRs are
specifically requested by the Holder.
2.3 Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are
Direct Registration ADRs or certificated ADRs.
3. DEPOSIT OF SHARES
In connection with the deposit of Shares hereunder, the Depositary or
the Custodian may require the following in form satisfactory to it: (a)
a written order directing the Depositary to issue to, or upon the
written order of, the person or persons designated in such order a
Direct Registration ADR or ADRs evidencing the number of ADSs
representing such deposited Shares (a "Delivery Order"); (b) proper
endorsements or duly executed instruments of transfer in respect of
such deposited Shares; (c) instruments assigning to the Custodian or
its nominee any distribution on or in respect of such deposited Shares
or indemnity therefor; and (d) proxies entitling the Custodian to vote
such deposited Shares. As soon as practicable after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant
to paragraph (10) or (13) of the form of ADR, the Custodian shall
present such Deposited
2
Securities for registration of transfer into the name of the Custodian
or its nominee, to the extent such registration is practicable, at the
cost and expense of the person making such deposit (or for whose
benefit such deposit is made) and shall obtain evidence satisfactory to
it of such registration. Deposited Securities shall be held by the
Custodian for the account and to the order of the Depositary at such
place or places and in such manner as the Depositary shall determine.
Deposited Securities may be delivered by the Custodian to any person
only under the circumstances expressly contemplated in this Deposit
Agreement. To the extent that the provisions of or governing the Shares
make delivery of certificates therefor impracticable, Shares may be
deposited hereunder by such delivery thereof as the Depositary or the
Custodian may reasonably accept, including, without limitation, by
causing them to be credited to an account maintained by the Custodian
for such purpose with the Company or an accredited intermediary, such
as a bank, acting as a registrar for the Shares, together with delivery
of the documents, payments and Delivery Order referred to herein to the
Custodian or the Depositary.
4. ISSUE OF ADRS
After any such deposit of Shares, the Custodian shall notify the
Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid,
or, at the request, risk and expense of the person making the deposit,
by cable, telex or facsimile transmission. After receiving such notice
from the Custodian, the Depositary, subject to this Deposit Agreement,
shall properly issue at the Transfer Office, to or upon the order of
any person named in such notice, an ADR or ADRs registered as requested
and evidencing the aggregate ADSs to which such person is entitled.
5. DISTRIBUTIONS ON DEPOSITED SECURITIES
To the extent that the Depositary determines in its discretion that any
distribution pursuant to paragraph (10) of the form of ADR is not
practicable with respect to any Holder, the Depositary may make such
distribution as it so deems practicable, including the distribution of
foreign currency, securities or property (or appropriate documents
evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect
to such Holder's ADRs (without liability for interest thereon or the
investment thereof).
6. WITHDRAWAL OF DEPOSITED SECURITIES
In connection with any surrender of an ADR for withdrawal of the
Deposited Securities represented by the ADSs evidenced thereby, the
Depositary may require proper endorsement in blank of such ADR (or duly
executed instruments of transfer thereof in blank) and the Holder's
written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be
withdrawn and delivered to, or upon the written order of, any person
designated in such order (a "Withdrawal Order"). Directions from the
Depositary to the Custodian to deliver Deposited Securities shall be
given by letter, first class airmail postage prepaid, or, at the
request, risk and expense of the Holder, by cable, telex or facsimile
transmission. Delivery of Deposited Securities may be made by the
delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments of transfer
or, if such certificates may be registered, registered in the name of
such Holder or as ordered by such Holder in any Withdrawal Order) or by
such other means as the Depositary may deem practicable, including,
without limitation, by transfer of record ownership thereof to an
account designated in the Withdrawal Order maintained either by the
Company or an accredited intermediary, such as a bank, acting as a
registrar for the Deposited Securities.
3
7. SUBSTITUTION OF ADRS
The Depositary shall execute and deliver a new Direct Registration ADR
in exchange and substitution for any mutilated certificated ADR upon
cancellation thereof or in lieu of and in substitution for any
destroyed, lost or stolen certificated ADR, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, upon
the Holder thereof filing with the Depositary a request for such
execution and delivery and a sufficient indemnity bond and satisfying
any other reasonable requirements imposed by the Depositary.
8. CANCELLATION AND DESTRUCTION OF ADRS
All ADRs surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy ADRs in
certificated form so cancelled in accordance with its customary
practices.
9. THE CUSTODIAN
Any Custodian in acting hereunder shall be subject to the directions of
the Depositary and shall be responsible solely to it. The Depositary
may from time to time appoint one or more agents to act for it as
Custodian hereunder. Each Custodian so appointed (other than Deutsche
Bank AG or any subsidiary thereof) shall give written notice to the
Company and the Depositary accepting such appointment and agreeing to
be bound by the applicable terms hereof. Any Custodian may resign from
its duties hereunder by at least 30 days written notice to the
Depositary. The Depositary may discharge any Custodian at any time upon
notice to the Custodian being discharged. Any Custodian ceasing to act
hereunder as Custodian shall deliver, upon the instruction of the
Depositary, all Deposited Securities held by it to a Custodian
continuing to act.
10. CO-REGISTRARS AND CO-TRANSFER AGENTS
The Depositary may appoint and remove (i) co-registrars to register
ADRs and transfers, combinations and split-ups of ADRs and to
countersign ADRs in accordance with the terms of any such appointment
and (ii) co-transfer agents for the purpose of effecting transfers,
combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each
co-registrar or co-transfer agent (other than Deutsche Bank AG or any
subsidiary thereof) shall give notice in writing to the Company and the
Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
11. LISTS OF HOLDERS
The Company shall have the right to inspect transfer records of the
Depositary and its agents and the ADR Register, take copies thereof and
require the Depositary and its agents to supply copies of such portions
of such records as the Company may request. The Depositary or its agent
shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all
Holders as of a date within seven days of the Depositary's receipt of
such request.
12. DEPOSITARY'S AGENTS
The Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall
notify the Company of such appointment and shall remain responsible for
the performance of such obligations as if no agent were appointed.
4
13. SUCCESSOR DEPOSITARY
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company. The
Depositary may at any time be removed by the Company by written notice
of such removal. Notwithstanding anything to the contrary contained
herein, in case at any time the Depositary acting hereunder shall
resign or be removed, it shall continue to act as Depositary for the
purpose of terminating this Deposit Agreement pursuant to paragraph
(17) of the form of ADR. Any bank or trust company into or with which
the Depositary may be merged or consolidated, or to which the
Depositary shall transfer substantially all its American depositary
receipt business, shall be the successor of the Depositary without the
execution or filing of any document or any further act.
14. REPORTS
On or before the first date on which the Company makes any
communication available to holders of Deposited Securities or any
securities regulatory authority or stock exchange, by publication or
otherwise, the Company shall transmit to the Depositary a copy thereof
in English or with an English translation or summary. The Company has
delivered to the Depositary, the Custodian and any Transfer Office, a
copy of all provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any affiliate of the
Company and, promptly upon any change thereto, the Company shall
deliver to the Depositary, the Custodian and any Transfer Office, a
copy (in English or with an English translation) of such provisions as
so changed. The Depositary and its agents may rely upon the Company's
delivery thereof for all purposes of this Deposit Agreement.
15. ADDITIONAL SHARES
Neither the Company nor any company controlling, controlled by or under
common control with the Company shall issue additional Shares, rights
to subscribe for Shares, securities convertible into or exchangeable
for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under
circumstances complying in all respects with the Securities Act of
1933. The Depositary will use reasonable efforts to comply with written
instructions of the Company not to accept for deposit hereunder any
Shares identified in such instructions at such times and under such
circumstances as may reasonably be specified in such instructions in
order to facilitate the Company's compliance with securities laws in
the United States.
16. INDEMNIFICATION
The Company shall indemnify, defend and save harmless each of the
Depositary and its agents against any loss, liability or expense
(including reasonable fees and expenses of counsel) which may arise out
of acts performed or omitted, in connection with the provisions of this
Deposit Agreement and of the ADRs, as the same may be amended, modified
or supplemented from time to time in accordance herewith (i) by either
the Depositary or its agents or their respective directors, employees,
agents and affiliates, except, subject to the penultimate paragraph of
this Section 16, for any liability or expense directly arising out of
the negligence or bad faith of the Depositary, or (ii) by the Company
or any of its directors, employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or
preliminary prospectus (or preliminary placement memorandum) relating
to the offer or sale of ADSs, except to the extent any such liability
or expense arises out of (i) information relating to the Depositary or
its agents (other than the Company), as
5
applicable, furnished in writing by the Depositary and not changed or
altered by the Company expressly for use in any of the foregoing
documents or (ii) if such information is provided, the failure to state
a material fact necessary to make the information provided not
misleading.
Except as provided in the next succeeding paragraph, the Depositary
shall indemnify, defend and save harmless the Company against any loss,
liability or expense (including reasonable fees and expenses of
counsel) incurred by the Company in respect of this Deposit Agreement
to the extent such loss, liability or expense is due to the negligence
or bad faith of the Depositary or its agents acting hereunder.
Notwithstanding any other provision of this Deposit Agreement or the
form of ADR to the contrary, neither the Company nor the Depositary,
nor any of their agents, shall be liable to the other for any indirect,
special, punitive or consequential damages (collectively "Special
Damages") except (i) to the extent such Special Damages arise from the
gross negligence or willful misconduct of the party from whom
indemnification is sought or (ii) to the extent Special Damages arise
from or out of a claim brought by a third party (including, without
limitation, Holders) against the Depositary or its agents, except to
the extent such Special Damages arise out of the gross negligence or
willful misconduct of the party seeking indemnification hereunder.
The obligations set forth in this Section 16 shall survive the
termination of this Deposit Agreement and the succession or
substitution of any indemnified person.
17. NOTICES
Notice to any Holder shall be deemed given when first mailed, first
class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the
Company shall be deemed given when first received by it at the address
or facsimile transmission number set forth in (a) or (b), respectively,
or at such other address or facsimile transmission number as either may
specify to the other by written notice:
(a) Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: ADR Department
Fax: (000) 000-0000
(b) Watchdata Technologies Ltd.
Xx. 0 Xxxxxxx Xxxx Xxxxxx
Xxxxxxx Xxxxxxx Xxxx
Chaoyang District
Beijing, 100015, PRC
Attention: Xxxxx Xxxxx
Fax: 00-00-0000-0000
18. MISCELLANEOUS
This Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and
shall not give any legal or equitable right, remedy or claim whatsoever
to any other person. The Holders and owners of ADRs from time to time
shall be parties to this Deposit Agreement and shall be bound by all of
the provisions hereof. If any such provision is invalid, illegal or
unenforceable in any respect, the remaining provisions shall in no way
be affected thereby. This Deposit Agreement may be
6
executed in any number of counterparts, each of which shall be deemed
an original and all of which shall constitute one instrument.
19. CONSENT TO JURISDICTION
The Company irrevocably agrees that any legal suit, action or
proceeding against the Company brought by the Depositary or any Holder,
arising out of or based upon this Deposit Agreement or the transactions
contemplated hereby, may be instituted in any state or federal court in
New York, New York, and irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any such proceeding,
and irrevocably submits to the non-exclusive jurisdiction of such
courts in any such suit, action or proceeding. The Company has
appointed CT Corporation System, Xxx Xxxx, Xxx Xxxx 00000, as its
authorized agent (the "Authorized Agent") upon which process may be
served in any such action arising out of or based on this Deposit
Agreement or the transactions contemplated hereby which may be
instituted in any state or federal court in New York, New York by the
Depositary or any Holder, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. The Company
represents and warrants that the Authorized Agent has agreed to act as
said agent for service of process, and the Company agrees to take any
and all action, including the filing of any and all documents and
instruments, that may be necessary to continue such appointment in full
force and effect as aforesaid. Service of process upon the Authorized
Agent and written notice of such service to the Company shall be
deemed, in every respect, effective service of process upon the
Company. If, for any reason, the Authorized Agent named above or its
successor shall no longer serve as agent of the Company to receive
service of process in New York, the Company shall promptly appoint a
successor acceptable to the Depositary, so as to serve and will
promptly advise the Depositary thereof. In the event the Company fails
to continue such designation and appointment in full force and effect,
the Company hereby waives personal service of process upon it and
consents that any such service of process may be made by certified or
registered mail, return receipt requested, directed to the Company at
its address last specified for notices hereunder, and service so made
shall be deemed completed five (5) days after the same shall have been
so mailed. Notwithstanding the foregoing, any action based on this
Agreement may be instituted by the Depositary or any Holder in any
competent court in the Cayman Islands.
To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter be entitled to, or have attributed
to it, any right of immunity, on the grounds of sovereignty or
otherwise, from any legal action, suit or proceeding, from the giving
of any relief in any respect thereof, from setoff or counterclaim, from
the jurisdiction of any court, from service of process, from attachment
upon or prior to judgment, from attachment in aid of execution or
judgment, or from execution of judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be
commenced, with respect to its obligations, liabilities or other matter
under or arising out of or in connection with the Shares or Deposited
Securities, the ADSs, the ADRs or this Agreement, the Company, to the
fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and
consents to such relief and enforcement.
7
IN WITNESS WHEREOF, WATCHDATA TECHNOLOGIES LTD. and DEUTSCHE BANK TRUST COMPANY
AMERICAS have duly executed this Deposit Agreement as of the day and year first
above set forth and all holders of ADRs shall become parties hereto upon
acceptance by them of ADRs issued in accordance with the terms hereof.
WATCHDATA TECHNOLOGIES LTD.
By:
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
Name:
Title:
By:
Name:
Title:
8
EXHIBIT A
[FORM OF FACE OF RECEIPT]
-----------------------------
Number
American Depositary Shares
(1 American Depositary Share
Represents 2 Fully Paid Ordinary
Shares, par value
$0.001 per Share)
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
WATCHDATA TECHNOLOGIES LTD.
(Incorporated under the laws of The Cayman Islands)
DEUTSCHE BANK TRUST COMPANY AMERICAS, a national banking association organized
under the laws of the United States of America, as depositary hereunder (the
"Depositary"), hereby certifies that is the registered owner (a "Holder") of
American Depositary Shares ("ADSs"), each (subject to paragraph (13))
representing 2 ordinary shares (including the rights to receive Shares described
in paragraph (1), "Shares" and, together with any other securities, cash or
property from time to time held by the Depositary in respect or in lieu of
deposited Shares, the "Deposited Securities"), of Watchdata Technologies Ltd., a
corporation organized under the laws of The Cayman Islands (the "Company"),
deposited under the Deposit Agreement dated o 2005 (as amended from time to
time, the "Deposit Agreement") among the Company, the Depositary and all Holders
from time to time of American Depositary Receipts issued thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and this ADR (which includes the provisions set forth on the reverse hereof)
shall be governed by and construed in accordance with the laws of the State of
New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only (a)
against deposit with the Custodian of Shares in form satisfactory to
the Custodian or rights to receive Shares from the Company or any
registrar, transfer agent, clearing agent or other entity recording
Share ownership or transactions or,(b) unless requested in writing by
the Company to cease doing so, subject to two days advance notice,
other rights to receive Shares (until such Shares are actually
deposited pursuant to (a) above, "Pre-released ADRs") only if (i)
Pre-released ADRs are fully collateralized (marked to market daily)
with cash or U.S. government securities held by the Depositary for the
benefit of Holders (but such collateral shall not constitute Deposited
Securities), (ii) each recipient of Pre-released ADRs agrees in writing
with the Depositary that such recipient (a) owns such Shares, (b)
assigns all beneficial right, title and interest therein to the
Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable
and promptly upon demand therefor and
9
(iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those evidenced by Pre-released ADRs), provided, however,
that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may
retain for its own account any earnings on collateral for Pre-released
ADRs and its charges for issuance thereof. At the request, risk and
expense of the person depositing Shares, the Depositary may accept
deposits for forwarding to the Custodian and may deliver ADRs at a
place other than its office. Every person depositing Shares under the
Deposit Agreement represents and warrants that such Shares are validly
issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly
authorized so to do and that such Shares (A) are not "restricted
securities" as such term is defined in Rule 144 under the Securities
Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered
and sold freely in the United States or (B) have been registered under
the Securities Act of 1933. Such representations and warranties shall
survive the deposit of Shares and issuance of ADRs. The Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares
required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any
Shares identified by the Company in order to facilitate the Company's
compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5),
upon surrender of (i) a certificated ADR in form satisfactory to the
Depositary at the Transfer Office or (ii) proper instructions and
documentation in the case of a Direct Registration ADR, the Holder
hereof is entitled to delivery at, or to the extent in dematerialized
form from, the Custodian's office of the Deposited Securities at the
time represented by the ADSs evidenced by this ADR. At the request,
risk and expense of the Holder hereof, the Depositary may deliver such
Deposited Securities at such other place as may have been requested by
the Holder. Notwithstanding any other provision of the Deposit
Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction
I.A.(1) of Form F-6 (as such instructions may be amended from time to
time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New
York (the "Transfer Office"), (a) a register (the "ADR Register") for
the registration, registration of transfer, combination and split-up of
ADRs, and, in the case of Direct Registration ADRs, shall include the
Direct Registration System, which at all reasonable times will be open
for inspection by Holders and the Company for the purpose of
communicating with Holders in the interest of the business of the
Company or a matter relating to the Deposit Agreement and (b)
facilities for the delivery and receipt of ADRs. The term ADR Register
includes the Direct Registration System. Title to this ADR (and to the
Deposited Securities represented by the ADSs evidenced hereby), when
properly endorsed (in the case of ADRs in certificated form) or upon
delivery to the Depositary of proper instruments of transfer, is
transferable by delivery with the same effect as in the case of
negotiable instruments under the laws of the State of New York;
provided that the Depositary, notwithstanding any notice to the
contrary, may treat the person in whose name this ADR is registered on
the ADR Register as the absolute owner hereof for all purposes and
neither the Depositary nor the Company will have any obligation or be
subject to any liability under the Deposit Agreement to any holder of
an ADR, unless such holder is the Holder thereof. Subject to paragraphs
(4) and (5), this ADR is transferable on the ADR Register and may be
split into other ADRs or combined with other ADRs into one ADR,
evidencing the same number of ADSs evidenced by this ADR, by the Holder
hereof or by duly authorized attorney upon surrender of this ADR at the
Transfer Office properly endorsed (in the case of ADRs in certificated
form) or upon delivery to the Depositary of proper instruments of
transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or
from time to time when deemed expedient by it or requested by the
Company. At the request of a Holder, the Depositary
10
shall, for the purpose of substituting a certificated ADR with a Direct
Registration ADR, or vice versa, execute and deliver a certificated ADR
or a Direct Registration ADR, as the case may be, for any authorized
number of ADSs requested, evidencing the same aggregate number of ADSs
as those evidenced by the certificated ADR or Direct Registration ADR,
as the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of
paragraph (2), the withdrawal of any Deposited Securities, and from
time to time in the case of clause (b)(ii) of this paragraph (4), the
Company, the Depositary or the Custodian may require: (a) payment with
respect thereto of (i) any stock transfer or other tax or other
governmental charge, (ii) any stock transfer or registration fees in
effect for the registration of transfers of Shares or other Deposited
Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of
proof satisfactory to it of (i) the identity and genuineness of any
signature and (ii) such other information, including without
limitation, information as to citizenship, residence, exchange control
approval, beneficial ownership of any securities, compliance with
applicable law, regulations, provisions of or governing Deposited
Securities and terms of the Deposit Agreement and this ADR, as it may
deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The
issuance of ADRs, the acceptance of deposits of Shares, the
registration, registration of transfer, split-up or combination of ADRs
or the withdrawal of Deposited Securities may be suspended, generally
or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed
advisable by the Depositary or the Company, in good faith, at any time
or from time to time because of any requirement of law, any government
or governmental body or commission or any securities exchange on which
the ADSs or Shares are listed, or under any provision of this Deposit
Agreement or the applicable ADR(s) or under any provision of, or
governing, the Deposited Securities, or because of a meeting of
shareholders of the Company or for any other reason, subject, in all
cases, to the last sentence of paragraph (2) hereof.
(5) Taxes. If any tax or other governmental charge shall become payable by
or on behalf of the Custodian or the Depositary with respect to this
ADR, any Deposited Securities represented by the ADSs evidenced hereby
or any distribution thereon, such tax or other governmental charge
shall be paid by the Holder hereof to the Depositary. The Depositary
may refuse to effect any registration, registration of transfer,
split-up or combination hereof or, subject to the last sentence of
paragraph (2), any withdrawal of such Deposited Securities until such
payment is made. The Depositary may also deduct from any distributions
on or in respect of Deposited Securities, or may sell by public or
private sale for the account of the Holder hereof any part or all of
such Deposited Securities (after attempting by reasonable means to
notify the Holder hereof prior to such sale), and may apply such
deduction or the proceeds of any such sale in payment of such tax or
other governmental charge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to
reflect any such sales of Shares. In connection with any distribution
to Holders, the Company will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and
owing to such authority or agency by the Company; and the Depositary
and the Custodian will remit to the appropriate governmental authority
or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary or the Custodian. If the
Depositary determines that any distribution in property other than cash
(including Shares or rights) on Deposited Securities is subject to any
tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may dispose of all or a portion of such property in such
amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the
Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the
Holders entitled thereto.
11
(6) Disclosure of Interests. To the extent that the provisions of or
governing any Deposited Securities may require disclosure of or impose
limits on beneficial or other ownership of Deposited Securities, other
Shares and other securities and may provide for blocking transfer,
voting or other rights to enforce such disclosure or limits, Holders
and all persons holding ADRs agree to comply with all such disclosure
requirements and ownership limitations and to comply with any
reasonable Company instructions in respect thereof. The Company
reserves the right to instruct Holders to deliver their ADSs for
cancellation and withdrawal of the Deposited Securities so as to permit
the Company to deal directly with the Holder thereof as a holder of
Shares and Holders agree to comply with such instructions. The
Depositary agrees to cooperate with the Company in its efforts to
inform Holders of the Company's exercise of its rights under this
paragraph and agrees to consult with, and provide reasonable assistance
without risk, liability or expense on the part of the Depositary, to
the Company on the manner or manners in which it may enforce such
rights with respect to any Holder.
(7) Charges of Depositary. The Depositary may charge each person to whom
ADSs are issued against deposits of Shares, including deposits in
respect of Share Distributions, Rights and Other Distributions (as such
terms are defined in paragraph (10)), and each person surrendering ADSs
for withdrawal of Deposited Securities, U.S.$5.00 for each 100 ADSs (or
portion thereof) delivered or surrendered. The Depositary may sell (by
public or private sale) sufficient securities and property received in
respect of Share Distributions, Rights and Other Distributions prior to
such deposit to pay such charge. The following additional charges shall
be incurred by the Holders, by any party depositing or withdrawing
Shares or by any party surrendering ADRs or to whom ADRs are issued
(including, without limitation, issuance pursuant to a stock dividend
or stock split declared by the Company or an exchange of stock
regarding the ADRs or the Deposited Securities or a distribution of
ADRs pursuant to paragraph (10)), whichever is applicable (i) to the
extent not prohibited by the rules of the primary stock exchange upon
which the ADSs are listed, a fee of U.S.$0.02 or less per ADS (or
portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement, (ii) to the extent not prohibited by the rules of the
primary stock exchange upon which the ADSs are listed, a fee of
U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3)
hereof, (iii) a fee for the distribution or sale of securities pursuant
to paragraph (10) hereof, such fee being in an amount equal to the fee
for the execution and delivery of ADSs referred to above which would
have been charged as a result of the deposit of such securities (for
purposes of this paragraph (7) treating all such securities as if they
were Shares) but which securities or the net cash proceeds from the
sale thereof are instead distributed by the Depositary to Holders
entitled thereto, (iv) to the extent not prohibited by the rules of the
primary stock exchange upon which the ADSs are listed, a fee of US$0.02
per ADS (or portion thereof) per year to cover such expenses as are
incurred, and services performed, by the Depositary in administering
our ADR program (which fee shall be assessed against Holders as of the
record date or dates set by the Depositary not more than once each
calendar year and shall be payable at the sole discretion of the
Depositary by billing such Holders or by deducting such charge from one
or more cash dividends or other cash distributions), and (v) such fees
and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with
compliance with foreign exchange control regulations or any law or
regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its
Custodian's compliance with applicable law, rule or regulation. The
Company will pay all other charges and expenses of the Depositary and
any agent of the Depositary (except the Custodian) pursuant to
agreements from time to time between the Company and the Depositary,
except (i) stock transfer or other taxes and other governmental charges
(which are payable by Holders or persons depositing Shares), (ii)
cable, telex and facsimile transmission and delivery charges incurred
at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or
Holders), (iii) transfer or registration fees for the registration or
transfer of Deposited Securities on any applicable register in
connection with the deposit or withdrawal of Deposited Securities
(which are
12
payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the
date of the Deposit Agreement), (iv) expenses of the Depositary in
connection with the conversion of foreign currency into U.S. dollars
(which are paid out of such foreign currency) and (v) any other charge
payable by any of the Depositary, any of the Depositary's agents,
including, without limitation, the custodian, or the agents of the
Depositary's agents in connection with the servicing of the Shares or
other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the depositary and shall
be payable at the sole discretion of the Depositary by billing such
Holders or by deducting such charge from one or more cash dividends or
other cash distributions) These charges may be changed in the manner
indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the
Company, which are both received by the Custodian or its nominee as a
holder of Deposited Securities and made generally available to the
holders of Deposited Securities, are available for inspection by
Holders at the offices of the Depositary and the Custodian and at the
Transfer Office. The Depositary will distribute copies of such
communications (or English translations or summaries thereof) to
Holders when furnished by the Company. The Company is subject to the
periodic reporting requirements of the Securities Exchange Act of 1934
and accordingly files certain reports with the United States Securities
and Exchange Commission (the "Commission"). Such reports and other
information may be inspected and copied at public reference facilities
maintained by the Commission located at the date hereof at Judiciary
Plaza, 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly
authorized officer of the Depositary.
Dated:
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary
By:
---------------------------------------
Authorized Officer
The Depositary's office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
13
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
(5), to the extent practicable, the Depositary will distribute to each
Holder entitled thereto on the record date set by the Depositary
therefor at such Holder's address shown on the ADR Register, in
proportion to the number of Deposited Securities (on which the
following distributions on Deposited Securities are received by the
Custodian) represented by ADSs evidenced by such Holder's ADRs:
(a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net
proceeds of sales of any other distribution or portion thereof
authorized in this paragraph (10) ("Cash"), on an averaged or
other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being
impermissible or impracticable with respect to certain
Holders, and (iii) deduction of the Depositary's expenses in
(1) converting any foreign currency to U.S. dollars by sale or
in such other manner as the Depositary may determine to the
extent that it determines that such conversion may be made on
a reasonable basis, (2) transferring foreign currency or U.S.
dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any
approval or license of any governmental authority required for
such conversion or transfer, which is obtainable at a
reasonable cost and within a reasonable time and (4) making
any sale by public or private means in any commercially
reasonable manner.
(b) Shares. (i) Additional ADRs evidencing whole ADSs representing
any Shares available to the Depositary resulting from a
dividend or free distribution on Deposited Securities
consisting of Shares (a "Share Distribution") and (ii) U.S.
dollars available to it resulting from the net proceeds of
sales of Shares received in a Share Distribution, which Shares
would give rise to fractional ADSs if additional ADRs were
issued therefor, as in the case of Cash.
(c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs
in respect of any rights to subscribe for additional Shares or
rights of any nature available to the Depositary as a result
of a distribution on Deposited Securities ("Rights"), to the
extent that the Company timely furnishes to the Depositary
evidence satisfactory to the Depositary that the Depositary
may lawfully distribute the same (the Company has no
obligation to so furnish such evidence), or (ii) to the extent
the Company does not so furnish such evidence and sales of
Rights are practicable, any U.S. dollars available to the
Depositary from the net proceeds of sales of Rights as in the
case of Cash, or (iii) to the extent the Company does not so
furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the
Rights, limited markets therefor, their short duration or
otherwise, nothing (and any Rights may lapse).
(d) Other Distributions. (i) Securities or property available to
the Depositary resulting from any distribution on Deposited
Securities other than Cash, Share Distributions and Rights
("Other Distributions"), by any means that the Depositary may
deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property
not to be equitable and practicable, any U.S. dollars
available to the Depositary from the net proceeds of sales of
Other Distributions as in the case of Cash. Such U.S. dollars
available will be distributed by checks drawn on a bank in the
United States for whole dollars and cents. Fractional cents
will be withheld without liability and dealt with by the
Depositary in accordance with its then current practices.
14
(11) Record Dates. The Depositary may, after consultation with the
Company if practicable, fix a record date (which shall be as
near as practicable to any corresponding record date set by
the Company) for the determination of the Holders who shall be
responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses
provided for in paragraph (7) hereof as well as for the
determination of the Holders who shall be entitled to receive
any distribution on or in respect of Deposited Securities, to
give instructions for the exercise of any voting rights, to
receive any notice or to act in respect of other matters and
only such Holders shall be so entitled or obligated.
(12) Voting of Deposited Securities. As soon as practicable after
receipt from the Company of notice of any meeting or
solicitation of consents or proxies of holders of Shares or
other Deposited Securities, the Depositary shall distribute to
Holders a notice stating (a) such information as is contained
in such notice and any solicitation materials, (b) that each
Holder on the record date set by the Depositary therefor will,
subject to any applicable provisions of Cayman Island law, be
entitled to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs and
(c) the manner in which such instructions may be given,
including instructions to give a discretionary proxy to a
person designated by the Company. Upon receipt of instructions
of a Holder on such record date in the manner and on or before
the date established by the Depositary for such purpose, the
Depositary shall endeavor insofar as practicable and permitted
under the provisions of or governing Deposited Securities to
vote or cause to be voted the Deposited Securities represented
by the ADSs evidenced by such Holder's ADRs in accordance with
such instructions. The Depositary will not itself exercise any
voting discretion in respect of any Deposited Securities.
There is no guarantee that Holders generally or any Holder in
particular will receive the notice described above with
sufficient time to enable such Holder to return any voting
instructions to the Depositary in a timely manner.
To the extent such instructions are not so received by the
Depositary from any Holder, the Depositary shall deem such
Holder to have so instructed the Depositary to give a
discretionary proxy to a person designated by the Company and
the Depositary shall endeavor insofar as practicable and
permitted under the provisions of or governing Deposited
Securities to give a discretionary proxy to a person
designated by the Company to vote the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs as to
which such instructions are so given, provided that no such
instruction shall be deemed given and no discretionary proxy
shall be given with respect to any matter as to which the
Company informs the Depositary (and the Company, acting in a
fiduciary capacity on behalf of Holders, agrees to provide
such information promptly in writing) or the Depositary
reasonably believes (in the case of (y) or (z) below) that (x)
the Company does not wish such proxy given, (y) substantial
opposition exists or (z) materially affects the rights of
holders of Shares.
Notwithstanding anything to the contrary contained herein, the
Depositary shall not be obligated to give any such deemed
instruction unless and until the Depositary has been provided
with an opinion of counsel to the Company, in form and
substance satisfactory to the Depositary, to the effect that
(i) the granting of such discretionary proxy does not subject
the Depositary to any reporting obligations in the Cayman
Islands or the People's Republic of China, (ii) the granting
of such proxy will not result in a violation of Cayman Island
or, to the extent applicable, People's Republic of China law,
rule, regulation or permit, (iii) the voting arrangement and
proxy as contemplated herein will be given effect under Cayman
Island law, (iv) the Depositary will not be deemed to be
authorized to exercise any discretion when voting in
accordance with the terms of this paragraph (12) under Cayman
Island law and, (v) the Depositary will not be subject to any
liability under Cayman Island law for losses arising from the
exercise of the voting arrangements set forth in this
paragraph (12).
15
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion, amend this ADR or
distribute additional or amended ADRs (with or without calling this ADR
for exchange) or cash, securities or property on the record date set by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited
Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to
the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities
to any person and to sell by public or private sale any property
received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of
all or substantially all the assets of the Company, and to the extent
the Depositary does not so amend this ADR or make a distribution to
Holders to reflect any of the foregoing, or the net proceeds thereof,
whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this
ADR shall automatically represent its pro rata interest in the
Deposited Securities as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of them
shall: (a) incur no liability (i) if any present or future law, rule or
regulation of the United States, the Cayman Islands, the People's
Republic of China or any other country, or of any governmental or
regulatory authority or stock exchange, the provisions of or governing
any Deposited Securities, act of God, war, terrorism or other
circumstance beyond its control shall prevent, delay or subject to any
civil or criminal penalty any act which the Deposit Agreement or this
ADR provides shall be done or performed by it, or (ii) by reason of any
exercise or failure to exercise any discretion given it in the Deposit
Agreement or this ADR; (b) assume no liability except to perform its
obligations to the extent they are specifically set forth in this ADR
and the Deposit Agreement without gross negligence or bad faith; (c) in
the case of the Depositary and its agents, be under no obligation to
appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or this ADR; (d) in the case of the
Company and its agents hereunder be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of
any Deposited Securities or this ADR, which in its opinion may involve
it in expense or liability, unless indemnity satisfactory to it against
all expense (including fees and disbursements of counsel) and liability
be furnished as often as may be required; or (e) not be liable for any
action or inaction by it in reliance upon the advice of or information
from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent
to give such advice or information. The Depositary, its agents and the
Company may rely and shall be protected in acting upon any written
notice, request, direction or other document believed by them to be
genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any
failure to carry out any instructions to vote any of the Deposited
Securities, for the manner in which any such vote is cast or for the
effect of any such vote. The Depositary and its agents may own and deal
in any class of securities of the Company and its affiliates and in
ADRs. Notwithstanding anything to the contrary set forth in the Deposit
Agreement or an ADR, the Depositary and its agents may fully respond to
any and all demands or requests for information maintained by or on its
behalf in connection with the Deposit Agreement, any Holder or Holders,
any ADR or ADRs or otherwise related hereto to the extent such
information is requested or required by or pursuant to any lawful
authority, including without limitation laws, rules, regulations,
administrative or judicial process, banking, securities or other
regulators. The Company has agreed to indemnify the Depositary and its
agents under certain circumstances and the Depositary has agreed to
indemnify the Company under certain circumstances. Neither the Company
nor the Depositary nor any of their respective agents shall be liable
to Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages. No disclaimer of liability
under the Securities Act of 1933 is intended by any provision hereof.
16
(15) Resignation and Removal of Depositary; the Custodian. The Depositary
may resign as Depositary by written notice of its election to do so
delivered to the Company, or be removed as Depositary by the Company by
written notice of such removal delivered to the Depositary. The
Depositary may appoint substitute or additional Custodians and the term
"Custodian" refers to each Custodian or all Custodians as the context
requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and
the Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or
charges (other than stock transfer or other taxes and other
governmental charges, transfer or registration fees, cable, telex or
facsimile transmission costs, delivery costs or other such expenses),
or that shall otherwise prejudice any substantial existing right of
Holders, shall become effective 30 days after notice of such amendment
shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall
be deemed, by continuing to hold such ADR, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
In no event shall any amendment impair the right of the Holder of any
ADR to surrender such ADR and receive the Deposited Securities
represented thereby, except in order to comply with mandatory
provisions of applicable law. Any amendments or supplements which (i)
are reasonably necessary (as agreed by the Company and the Depositary)
in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose
or increase any fees or charges to be borne by Holders, shall be deemed
not to prejudice any substantial rights of Holders. Notwithstanding the
foregoing, if any governmental body or regulatory body should adopt new
laws, rules or regulations which would require amendment or supplement
of the Deposit Agreement or the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the ADR at any time in accordance with such
changed rules. Such amendment or supplement to the Deposit Agreement in
such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period
of time as required for compliance.
(17) Termination. Upon the resignation or removal of the Depositary pursuant
to the Deposit Agreement, the Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR
by mailing notice of such termination to the Holders at least 30 days
prior to the date fixed in such notice for such termination. After the
date so fixed for termination, the Depositary and its agents will
perform no further acts under the Deposit Agreement and this ADR,
except to receive and hold (or sell) distributions on Deposited
Securities and deliver Deposited Securities being withdrawn. As soon as
practicable after the expiration of six months from the date so fixed
for termination, the Depositary shall sell the Deposited Securities and
shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any
other cash then held by it under the Deposit Agreement, without
liability for interest, in trust for the pro rata benefit of the
Holders of ADRs not theretofore surrendered. After making such sale,
the Depositary shall be discharged from all obligations in respect of
the Deposit Agreement and this ADR, except to account for such net
proceeds and other cash. After the date so fixed for termination, the
Company shall be discharged from all obligations under the Deposit
Agreement except for its obligations to the Depositary and its agents.
(18) Appointment. Each Holder and each person holding an interest in ADSs,
upon acceptance of any ADSs (or any interest therein) issued in
accordance with the terms and conditions of the Deposit Agreement shall
be deemed for all purposes to (a) be a party to and bound by the terms
of the Deposit Agreement and the applicable ADR(s), and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on
its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary
17
in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the
taking of such actions to be the conclusive determinant of the
necessity and appropriateness thereof.
18
