Contract
X.X.Xxxxxx
X.X.Xxxxxx
AMENDMENT NO. 1, dated as of
May , 2010 (the "Amendment"), to the Deposit Agreement
dated as of February 9, 2010 (as amended hereby, the "Deposit Agreement") among
JinkoSolar Holding Co., Ltd., incorporated under the laws of the Cayman Islands
(the "Company"), JPMorgan Chase Bank, N.A., as depositary (the "Depositary"),
and all holders from time to time of American depositary receipts ("ADRs")
issued thereunder.
W I T N E S S E T H:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR contained in the Deposit
Agreement, the Company and the Depositary desire to amend the terms of the
Deposit Agreement and ADRs.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION 1.01. Definitions. Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE
II
AMENDMENTS TO DEPOSIT
AGREEMENT
SECTION 2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall, as of
the date hereof, refer to the Deposit Agreement, dated as of February 9, 2010 as
amended by this Amendment.
SECTION
2.02. Section 1(c) of the Deposit Agreement is amended by
replacing "two" with "four".
SECTION
2.03. Section 17(a) of the Deposit Agreement is amended to
read as follows:
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|
(a)
|
JPMorgan
Chase Bank, N.A.
|
1 Chase
Xxxxxxxxx Xxxxx, Xxxxx 00
Xxx Xxxx,
XX, 00000-0000
Attention: ADR
Administration
Fax: (000) 000-0000
ARTICLE
III
AMENDMENTS TO THE FORM OF
ADR
SECTION 3.01. All
references in the form of ADR to the number of Shares represented
by each ADS is amended to reflect that each ADS represents four
Shares.
SECTION 3.02. The
form of ADR, reflecting the amendments set forth in Section 3.01 hereof, is
amended and restated to read as set forth as Exhibit A hereto.
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES
SECTION 4.01. Representations
and Warranties. The Company represents and warrants to, and
agrees with, the Depositary, that:
(a) This
Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(b) In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended
hereby, neither of such agreements need to be filed or recorded with
any court or other authority in the Cayman Islands or The People's Republic of
China (including the Hong Kong Special Administrative Region, the People's
Republic of China), nor does any stamp or similar tax or governmental charge
need to be paid in the Cayman Islands or The People's Republic of China
(including the Hong Kong Special Administrative Region, the People's Republic of
China) on or in respect of such agreements.
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ARTICLE
V
MISCELLANEOUS
SECTION 5.01. Indemnification. The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement in connection with any and all
liability it or they may incur as a result of the terms of this Amendment and
the transactions contemplated herein.
SECTION 5.02. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one
instrument.
IN
WITNESS WHEREOF, JINKOSOLAR HOLDING CO., LTD. and JPMORGAN CHASE BANK, N.A. have
duly executed this Amendment No. 1 to 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.
JINKOSOLAR
HOLDING CO., LTD.
By:_____________________________
Name:
Title
JPMORGAN
CHASE BANK, N.A.
By:_____________________________
Name:
Title: Vice
President
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EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
AMENDMENT TO DEPOSIT
AGREEMENT
[FORM OF
FACE OF ADR]
|
Number
|
No.
of ADSs:
Each
ADS represents
Four
Shares
CUSIP:
|
||
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
JINKOSOLAR
HOLDING CO., LTD.
(Incorporated
under the laws of the Cayman Islands)
JPMORGAN
CHASE BANK, N.A., 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 four
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 JinkoSolar Holding Co., Ltd., a corporation
organized under the laws of the Cayman Islands (the "Company"), deposited under
the Deposit Agreement dated as of February 9, 2010 (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.
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(1) Issuance of ADRs;
Pre-Release. 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
against deposit of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) in accordance with the next sub-paragraph of this paragraph
(1).
In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities, including ADSs which were issued under (i) above but for which
Shares may not have been received (each such transaction a "Pre-Release"). The
Depositary may receive ADSs in lieu of Shares under (i) above (which ADSs will
promptly be canceled by the Depositary upon receipt by the Depositary) and
receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release will be
subject to a written agreement whereby the person or entity (the "Applicant") to
whom ADSs or Shares are to be delivered (a) represents that at the time of the
Pre-Release the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release, (b) agrees to indicate the
Depositary as owner of such Shares or ADSs in its records and to hold such
Shares or ADSs in trust for the Depositary until such Shares or ADSs are
delivered to the Depositary or the Custodian, (c) unconditionally guarantees to
deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs,
and (d) agrees to any additional restrictions or requirements that the
Depositary deems appropriate. Each such Pre-Release will be at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, terminable by the Depositary on not more than
five (5) business days' notice and subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release at any
one time to thirty percent (30%) of the ADSs outstanding (without giving effect
to ADSs outstanding under (i) above), 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 also set limits with respect to the number
of ADSs and Shares involved in Pre-Release with any one person on a case-by-case
basis as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not the earnings thereon, shall be held for
the benefit of the Holders (other than the Applicant).
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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 ("Restricted
Securities") unless at the time of deposit the requirements of paragraphs (c),
(e), (f) and (h) of Rule 144 shall not apply and such Shares may be freely
transferred and may otherwise be offered and sold freely in the United States or
(B) have been registered under the Securities Act of 1933. To the extent the
person depositing Shares is an "affiliate" of the Company as such term is
defined in Rule 144, the person also represents and warrants that upon the sale
of the ADSs, all of the provisions of Rule 144 which enable the Shares to be
freely sold (in the form of ADSs) will be fully complied with and, as a result
thereof, all of the ADSs issued in respect of such Shares will not be on the
sale thereof, Restricted Securities. 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, provided that the
Depositary may deliver Shares prior to the receipt of ADSs for withdrawal of
Deposited Securities, including ADSs which were issued under (1) above but for
which Shares may not have been received (until such ADSs are actually deposited,
"Pre-released Shares") only if all the conditions in (1) above
related to such Pre-Release are satisfied). 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.
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(3) Transfers of
ADRs. The Depositary or its agent will keep, at a designated
transfer office (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 aggregate number of ADSs surrendered for split-up or combination, 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 when
requested by the Company in order to comply with applicable law. At
the request of a Holder, the Depositary 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 of any signatory 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, subject to the last sentence of paragraph (2), 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.
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(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. Each
Holder of an ADR or an interest therein agrees to indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents
and affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
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(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.
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(7) Charges of
Depositary. The Depositary may charge, and collect from, (i)
each person to whom ADSs are issued, including, without limitation,
issuances against deposits of Shares, issuances in respect of Share
Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), issuances pursuant to a stock dividend or stock split
declared by the Company, or issuances pursuant to a merger, exchange of
securities or any other transaction or event affecting the ADSs or the Deposited
Securities, and (ii) each person surrendering ADSs for withdrawal of
Deposited Securities or whose ADSs are cancelled or reduced for any other
reason, U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered,
reduced, cancelled or surrendered (as the case may be). The Depositary may
sell (by public or private sale) sufficient securities and property received in
respect of Share Distributions, Rights and Other Distributions prior to such
deposit to pay such charge. The following additional charges shall be incurred
by the Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i) a
fee of U.S.$0.05 or less per ADS (or portion thereof) for any Cash distribution
made pursuant to the Deposit Agreement, (ii) 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) an
aggregate fee of U.S.$0.05 per ADS per calendar year (or portion thereof) for
services performed by the Depositary in administering the ADRs (which fee may be
charged on a periodic basis during each calendar year and shall be assessed
against Holders as of the record date or record dates set by the Depositary
during each calendar year and shall be payable at the sole discretion of the
Depositary by billing such Holders or by deducting such charge from one or more
cash dividends or other cash distributions), and (v) reimbursement of such fees,
charges and expenses as are incurred by the Depositary and/or any of the
Depositary's agents (including, without limitation, the Custodian and 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 connection with the servicing of the Shares or other Deposited
Securities, the delivery of Deposited Securities or otherwise in connection with
the Depositary's or its Custodian's compliance with applicable law, rule or
regulation (which charge shall be assessed on a proportionate basis 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). 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
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), and (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). Such charges may at any time and from time to time be changed
by agreement between the Company and the Depositary.
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(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 000 X Xxxxxx, XX, Xxxxxxxxxx, XX
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:
JPMORGAN
CHASE BANK, N.A., as Depositary
By
................................................................................
Authorized
Officer
The
Depositary's office is located at 1 Chase Xxxxxxxxx Xxxxx, Xxxxx 00, Xxx Xxxx,
XX, 00000-0000.
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[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.
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(11) Record
Dates. The Depositary may, after consultation with the Company
if practicable, fix a record date (which, to the extent applicable, 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.
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X.X.Xxxxxx
(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, irrespective
of whether such Deposited Securities are surrendered or otherwise cancelled by
operation of law, rule, regulation or otherwise, 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.
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X.X.Xxxxxx
(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, regulation , fiat, order or
decree of the United States, the Cayman
Islands, The People's Republic of China (including the Hong Kong Special
Administrative Region, the People's Republic of China) or any other country, or
of any governmental or regulatory authority or any securities exchange or market
or automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act of
God, war, terrorism or other circumstance beyond its control shall prevent or
delay, or shall cause any of them to be subject to any civil or criminal penalty
in connection with, any act which the Deposit Agreement or this ADR provides
shall be done or performed by it or them (including, without limitation, voting
pursuant to paragraph (12) hereof), 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 shall not be
liable for the acts or omissions made by any securities depository, clearing
agency or settlement system in connection with or arising out of book-entry
settlement of Deposited Securities or otherwise. The Depositary shall
not be responsible for, and shall incur no liability in connection with or
arising from, the insolvency of any Custodian that is not a branch or affiliate
of JPMorgan Chase Bank, N.A. 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 or thereto 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. None of the Depositary, the Custodian or the
Company shall be liable for the failure by any Holder or beneficial owner to
obtain the benefits of credits on the basis of non-U.S. tax paid against such
Holder's or beneficial owner's income tax liability. The Depositary and the
Company shall not incur any liability for any tax consequences that may be
incurred by Holders and beneficial owners on account of their ownership of the
ADRs or ADSs. 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 agents shall be liable to Holders or
beneficial owners of interests in ADSs for any indirect, special, punitive or
consequential damages (including, without limitation, lost profits) of any form
incurred by any person or entity, whether or not foreseeable and regardless of
the type of action in which such a claim may be brought. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision
hereof.
(15) Resignation and Removal of
Depositary; the Custodian. The Depositary may resign as Depositary by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement.
The Depositary may at any time be removed by the Company by no less than
90 days prior written notice of such removal, to become effective upon the later
of (i) the 90th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may appoint substitute or
additional Custodians and the term "Custodian" refers to
each Custodian or all Custodians as the context requires.
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X.X.Xxxxxx
(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 laws, rules or
regulations. 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. Notice of any
amendment to the Deposit Agreement or form of ADRs shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that, in each such case, the notice given to the Holders
identifies a means for Holders to retrieve or receive the text of such amendment
(i.e., upon retrieval from the Securities and Exchange Commission's, the
Depositary's or the Company's website or upon request from the
Depositary).
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X.X.Xxxxxx
(17) Termination. 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; provided, however, if the Depositary shall have (i) resigned as
Depositary hereunder, notice of such termination by the Depositary shall not be
provided to Holders unless a successor depositary shall not be operating
hereunder within 45 days of the date of such resignation, or (ii) been removed
as Depositary hereunder, notice of such termination by the Depositary shall not
be provided to Holders unless a successor depositary shall not be operating
hereunder on the 90th day
after the Company's notice of removal was first provided to the
Depositary. 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 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.
(19)
Waiver. EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS)
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 DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs,
THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE
BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY
OTHER THEORY).
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