AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of December , 2006 (the "Amendment"), to the
Deposit Agreement dated as of December 11, 2003 (as amended hereby, the "Deposit
Agreement"), among China Life Insurance Company Limited, incorporated under the
laws of The People's Republic of China (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
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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
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SECTION 2.01. All references in the Deposit Agreement to the term "Deposit
Agreement" shall, as of the Effective Date (as herein defined), refer to the
Deposit Agreement, dated as of December 11, 2003 as amended by this Amendment.
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SECTION 2.02. All references in the Deposit Agreement to the Depositary
shall be references to JPMorgan Chase Bank, N.A. ., a national banking
association organized under the laws of the United States.
SECTION 2.03. Section 1(c) of the Deposit Agreement is amended by
replacing "40" with "15".
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
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SECTION 3.01. All references in the form of ADR to the Depositary shall be
references to JPMorgan Chase Bank, N.A., a national banking association
organized under the laws of the United States.
SECTION 3.02. All references in the form of ADR to the number of Shares
represented by each ADS is amended to reflect that each ADS represents fifteen
Shares.
SECTION 3.03. The form of ADR, reflecting the amendments set forth herein
and the change of address for the Commission hereof, is amended and restated to
read as set forth as Exhibit A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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SECTION 4.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, 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
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(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 People's Republic of China, nor
does any stamp or similar tax or governmental charge need to be paid in
the People's Republic of China on or in respect of such agreements.
ARTICLE V
MISCELLANEOUS
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SECTION 5.01. Effective Date. This Amendment is dated as of the date set
forth above and shall be effective as the close of business New York time on
___________, 2006 (the "Effective Date").
SECTION 5.02. Outstanding ADRs. ADRs issued prior or subsequent to the
date hereof, which do not reflect the changes to the form of ADR effected
hereby, do not need to be called in for exchange and may remain outstanding
until such time as the Holders thereof choose to surrender them for any reason
under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. 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 5.04. 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.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
CHINA LIFE INSURANCE COMPANY LIMITED
By:
--------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.
By:
--------------------------------
Name:
Title:
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EXHIBIT A
ANNEXED TO AND INCORPORATED
IN AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
____ No. of ADSs:
Number
Each ADS represents
15 Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
CLASS H SHARES
of
CHINA LIFE INSURANCE COMPANY LIMITED
(Incorporated under the
laws of The People's Republic of China)
JPMORGAN CHASE BANK, N.A., a national banking association organized under
the laws of the United States, 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 15
overseas listed foreign-invested shares, or H 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 China Life
Insurance Company Limited, a corporation organized under the laws of The
People's Republic of China (the "Company"), deposited under the Deposit
Agreement dated as of December 11, 2003 (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. 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
with the Custodian 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) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) 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 (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 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.
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(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. 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 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, 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 or the Company.
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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.
(6) Disclosure of Interests; Limitation on Ownership. 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 cooperate with the Depositary in the Depositary's compliance
with any Company instructions in respect thereof.
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Holders and holders of interests in ADSs will be subject to the provisions
of the Hong Kong Securities and Futures Ordinance (the "Ordinance") and any
other regulations of Hong Kong relating to disclosure of interests in Shares.
For the purpose of this paragraph, "interest" shall have the meaning set forth
in the Ordinance. Under the Ordinance, a Holder or holder of an interest in ADSs
will have a duty to notify the Company and The Stock Exchange of Hong Kong
Limited if such Holder or holder becomes aware that its interest in Shares
(including its interest in Shares represented by ADSs and/or any deemed or
attributable interests specified in the Ordinance (including but not limited to
equity derivatives)) equals or exceeds 5% of long positions in the outstanding
share capital of the Company. If a Holder or holder of an interest in ADSs has
long positions which in the aggregate equal to or exceed 5% of the outstanding
share capital of the Company, then it is required to notify the Company and The
Stock Exchange of Hong Kong Limited if its aggregate short positions equal to or
exceed 1% of the outstanding share capital of the Company. Such Holder or holder
of an interest in ADSs may be required to further notify the Company and The
Stock Exchange of Hong Kong Limited of certain changes in such Holder or
beneficial owner's interest in the Shares after the first notification. Under
the Ordinance, the Company may make inquiries if the Company knows or has
reasonable cause to believe that a Holder or holder of an interest in ADSs has
any interest in Shares (including its interest in Shares represented by ADSs
and/or any deemed or attributable interests specified in the Ordinance
(including but not limited to equity derivatives)) or has a short position in
Shares or ADSs. The Depositary agrees that it shall use reasonable efforts to
comply with written instructions received from the Company requesting that the
Depositary forward any such requests for information relating to such interest
in Shares or ADSs to such Holder and to forward to the Company any responses to
such requests received by the Depositary provided that nothing herein shall be
interpreted as obligating the Depositary to provide or obtain any such
information not provided to the Depositary by such Holder. No Holder may
individually or with its nominees or other persons acting in concert
beneficially own more than 10% of the outstanding share capital of the Company
without the prior approval of the China Insurance Regulatory Commission.
(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) a fee of US$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 any stock
exchange or interdealer quotation system upon which the ADSs are traded, a fee
of US$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution 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, or (iv) 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 of 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). These charges
may be changed in the manner indicated in paragraph (16).
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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, 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:
JPMORGAN CHASE BANK, N.A.,as Depositary
By
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The Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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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 shall be as near as practicable to any
corresponding record date set by the Company) 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.
(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, subject to any applicable provision of Hong
Kong or People's Republic of China law, will 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.
(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.
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(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if any present or future law, regulation
of the United States, Hong Kong, 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 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.
(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.
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(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 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.
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