RESTRICTED ISSUANCE AGREEMENT
RESTRICTED ISSUANCE AGREEMENT dated as of April 15, 2008 (the "Agreement")
among LDK Solar Co., Ltd., incorporated under the laws of the Cayman Islands,
and its successors (the "Company"), JPMorgan Chase Bank, N.A. as depositary (the
"Depositary"), and all Holders from time to time of restricted American
depositary shares ("Restricted ADSs") represented by restricted American
depositary receipts ("Restricted ADRs") or book-entry securities, in each case
issued hereunder.
WITNESSETH:
WHEREAS, the Company and the Depositary executed the Deposit Agreement
dated as of May 31, 2007 (as so amended, the "Deposit Agreement"), the text of
which is attached hereto as Exhibit A, for the purposes set forth therein;
WHEREAS, notwithstanding Sections 3 and 4 of the Deposit Agreement and
paragraph (1) of the form of ADR, the Company has requested that the Depositary
accept one or more deposits of Shares which may not be freely transferred at the
time of deposit in accordance with Rule 144 or Rule 145 under the Securities Act
of 1933, as amended (the "Securities Act") (such securities, "Limited Transfer
Securities") into a parallel facility to the ADR facility established based upon
certain of the provisions of the Deposit Agreement;
WHEREAS, the Company desires that, upon a deposit of Limited Transfer
Securities, Restricted ADSs be issued to or upon the order of the depositor upon
compliance with the provisions of this Agreement; and
WHEREAS, the Company and the Depositary desire to enter into this
Agreement in order to permit the issuance of such Restricted ADSs and the
delivery thereof to or upon the order of the depositor (such person or entity
entitled to receive such Restricted ADSs being the
"Depositee" and each such issuance being a "Transaction").
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein set forth and for other good and valuable consideration, the Company and
the Depositary hereby agree as follows:
Section 1. Definitions. Unless otherwise defined in this Agreement, terms
which are defined in the Deposit Agreement are used herein as therein defined.
Section 2. Incorporation by Reference. Except to the extent modified
hereby, all terms and conditions Sections 1 through 19 of the Deposit Agreement
are incorporated herein by reference and deemed to be a part hereof. All
references in such sections of the Deposit Agreement to ADSs or ADRs shall refer
to Restricted ADSs and Restricted ADRs. To the extent there is an inconsistency
between any provision of Sections 1 through 19 of the Deposit Agreement and the
provisions hereof, the provisions hereof shall take precedence.
Section 3. Issuance of Restricted ADSs. The Depositary shall issue
Restricted ADSs hereunder upon (a) the deposit of Shares with the Custodian in
accordance with the provisions hereof, (b) receipt by the Depositary of issuance
instructions in proper form, and (c) compliance with any other applicable
provisions of the Deposit Agreement (as incorporated herein) and the form of ADR
(as incorporated herein). Until such time as the Depositary has received an
opinion of U.S. counsel to the Company reasonably acceptable to the Depositary
(or, at the option of the Company and the Depositary, counsel to the Depositee),
which opinion (the "Opinion") shall be in form and substance reasonably
satisfactory to counsel to the Depositary stating (y) that in connection with
the resale of the Restricted ADSs, the Shares underlying the Restricted ADSs
have been registered under the Securities Act or that such Restricted ADSs (as
well as those Restricted ADSs issued on the transfer, split-up or combination
thereof) may be
2
freely transferred without registration under the Securities Act or pursuant to
an applicable exemption from the registration requirements thereof, or (z) that
neither the Restricted ADSs nor the Shares represented thereby are "restricted
securities" within the meaning of Rule 144 promulgated under the Securities Act
and that any legend on such Restricted ADSs may be removed, any Restricted ADSs
issued in connection with a Transaction shall be issued in book-entry form on
the books of the Depositary.
Section 4. Cancellation of Restricted ADSs and Withdrawal of Shares. The
Depositary shall cancel surrendered Restricted ADSs and deliver Deposited
Securities only upon compliance with the provisions of the Deposit Agreement and
the Restricted ADS.
Section 5. Until such time as the Depositary has received the Opinion, any
Restricted ADSs issued in connection with a Transaction or on the transfer,
split-up or combination thereof shall contain a restrictive legend substantially
to the following effect:
THE SECURITIES REPRESENTED BY THIS RECEIPT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND ARE "RESTRICTED
SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE
SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED OR
TRANSFERRED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SHARES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144,
OR (iii) PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND
DEPOSITARY, THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID
SALE, OFFER, DISTRIBUTION OR TRANSFER.
In addition to the legend set forth above, Restricted ADSs representing
Shares deposited by a Depositee or permitted transferees of a Depositee may bear
such additional legends
3
(collectively with the legend set forth above, the "Legends") as the Company and
the Depositary may reasonably agree from time to time.
Section 6. Segregation of Deposited Securities. Prior to the issuance of
any Restricted ADSs and so long as such Restricted ADSs represent "restricted
securities" (as defined in Rule 144 promulgated under the Securities Act), the
Depositary shall request the Custodian to hold all Deposited Securities to be
evidenced by the Restricted ADSs in an account or accounts that are segregated
and separate from any other account or accounts in which other Shares of the
Company may be held or by holding Share certificates which contain legends
thereon that are comparable to those set forth herein. At such time as the
Restricted ADSs shall no longer be so restricted and the Shares represented
thereby may be deposited under the Deposit Agreement, the Company shall ensure
that the Custodian receives a new Share certificate or certificates representing
the number of Shares previously represented by Restricted ADSs and a certified
share extract with respect thereto The Depositary shall not be responsible if
and to the extent the Custodian refuses such request and no such request need be
made if it will involve additional cost or expense to the Depositary. To the
extent the fees charged by the Custodian increase in any way as a result of the
issuance of the Restricted ADSs, the Depositary may pass along the increased
amount to the holders of Restricted ADSs in any manner in which the Depositary
is permitted to charge fees or seek reimbursement of expenses under the Deposit
Agreement.
Section 7. Form of Restricted ADSs. At the discretion of the Depositary,
any Restricted ADSs to be issued in accordance herewith may be issued through
the book-entry
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registration system maintained by the Depositary or in such other form as the
Depositary shall so desire. If safety paper is utilized, such Restricted ADR
shall not set forth the CUSIP number present on the unrestricted ADRs issued
under the Deposit Agreement.
Section 8. Terms and Conditions Applicable to Restricted ADSs. The
provisions of this Agreement shall not in any way amend, modify, impact or
impair any of the provisions of the Deposit Agreement. Restricted ADRs shall be
in the form attached hereto as Exhibit A.
Section 9. Inconsistent Provisions. To the extent that any term or
provision of this Agreement shall be inconsistent with a term or provision of
the Deposit Agreement (as incorporated herein), the terms and conditions of this
Agreement shall take precedence only to the extent of such inconsistency.
IN WITNESS WHEREOF, LDK Solar Co., Ltd. and JPMorgan Chase Bank, N.A. have
duly executed and delivered this Agreement as of April 15, 2008.
LDK Solar Co., Ltd.
By /s/ Xxxx Xxx
-------------------------------------
Name: Xxxx Xxx
Title: CFO
JPMorgan Chase Bank, N.A.
By /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
5
[FORM OF FACE OF RESTRICTED ADR]
__________
Number
No. of Restricted ADSs:
___________________________
Each representing one Share
THE SECURITIES REPRESENTED BY THIS RECEIPT HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND ARE "RESTRICTED
SECURITIES" AS DEFINED IN RULE 144 PROMULGATED UNDER THE ACT. THE
SECURITIES MAY NOT BE SOLD OR OFFERED FOR SALE OR OTHERWISE DISTRIBUTED OR
TRANSFERRED EXCEPT (i) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SHARES UNDER THE ACT OR (ii) IN COMPLIANCE WITH RULE 144,
OR (iii) PURSUANT TO AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND
DEPOSITARY, THAT SUCH REGISTRATION OR COMPLIANCE IS NOT REQUIRED AS TO SAID
SALE, OFFER, DISTRIBUTION OR TRANSFER.
RESTRICTED AMERICAN DEPOSITARY RECEIPT
evidencing
RESTRICTED AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
LDK SOLAR 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 Restricted American Depositary Shares ("Restricted ADSs"), each
(subject to paragraph (13)) representing one ordinary share (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 LDK
SOLAR CO., LTD., a corporation organized under the laws of the Cayman Islands
(the "Company"), deposited under the Deposit Agreement dated as of May 31, 2007
(as amended from time to time, the "Deposit Agreement") as supplemented by the
Restricted Issuance Agreement dated as of March __, 2008, among the Company, the
Depositary and all Holders from time to time of restricted American Depositary
Receipts issued thereunder ("Restricted ADRs") (as so supplemented and amended
from time to time, the "Deposit Agreement"), each of whom by accepting a
Restricted ADR becomes a party thereto. The Deposit Agreement and this
Restricted 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 Restricted ADRs. This Restricted ADR is one of the
Restricted ADRs issued under the Deposit Agreement. Subject to paragraph (4),
the Depositary may so issue Restricted ADRs for delivery at the Transfer Office
(defined in paragraph (3)) only against deposit with the Custodian of: (a)
Shares in form reasonably satisfactory to the Custodian; or (b) rights to
receive Shares from the Company or any registrar, transfer agent, clearing agent
or other entity recording Share ownership or transactions. At the request, risk
and expense of the person depositing Shares, the Depositary may accept deposits
for forwarding to the Custodian and may deliver Restricted ADRs at a place other
than its office. Every person depositing Shares against issuance of Restricted
ADRs 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. Such representations and
warranties shall survive the deposit of Shares and issuance of Restricted ADRs.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5),
upon surrender of (i) a certificated Restricted ADR in form satisfactory to the
Depositary at the Transfer Office or (ii) proper instructions and documentation
in the case of a book entry Restricted ADS, 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 Restricted
ADSs evidenced by this Restricted 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.
(3) Transfers of Restricted ADRs. The Depositary or its agent will keep, at
a designated transfer office (the "Transfer Office"), (a) a register (the
"Restricted ADR Register") for the registration, registration of transfer,
combination and split-up of Restricted ADSs, 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 Restricted ADRs. Title to this Restricted ADR (and to the Deposited
Securities represented by the Restricted ADSs evidenced hereby), when properly
endorsed (in the case of Restricted 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 Restricted ADR is
registered on the Restricted 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 a
Restricted ADR, unless such holder is the Holder thereof. Subject to paragraphs
(4) and (5) and the restrictions hereon, this Restricted ADR is transferable on
the Restricted ADR Register and may be split into other Restricted ADRs or
combined with other Restricted ADRs into one Restricted ADR, evidencing the
aggregate number of Restricted ADSs surrendered for split-up or combination, by
the Holder hereof or by duly authorized attorney upon surrender of this
Restricted ADR at the Transfer Office properly endorsed (in the case of
Restricted 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 Restricted ADR Register at any
time or from time to time when deemed expedient by it or requested by the
Company.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any Restricted ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of paragraph
(2), the withdrawal of
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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 Restricted 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 Restricted 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 Restricted ADRs, the acceptance of deposits of Shares, the registration,
registration of transfer, split-up or combination of Restricted 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 Restricted ADR
Register or any register for Deposited Securities is closed or when any such
action is deemed advisable by the Depositary or the Company.
(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 Restricted
ADR, any Deposited Securities represented by the Restricted 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
Restricted 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 a Restricted 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.
A-3
(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 Restricted
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
Restricted 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 collect from (i) each person
to whom Restricted 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 Restricted ADSs or the Deposited Securities, and (ii)
each person surrendering Restricted ADSs for withdrawal of Deposited Securities
or whose Restricted ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each 100 Restricted 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 may, at the sole
discretion of the Depositary, be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering Restricted ADSs,
to whom Restricted 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 Restricted ADSs or the Deposited Securities or a
distribution of Restricted ADSs pursuant to paragraph (10)), whichever is
applicable (i) a fee of U.S.$0.02 or less per Restricted ADS (or portion
thereof) for any Cash distribution made pursuant to the Deposit Agreement, (ii)
a fee of U.S.$1.50 per Restricted ADR or Restricted 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 Restricted 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) a fee of
up to U.S.$0.02 per Restricted ADS (or portion thereof) in each calendar year
for the services performed by the Depositary in administering the Restricted
ADRs (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
A-4
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, Restricted 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), (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). Such charges may at any time
and from time to time be changed by agreement between the Company and the
Depositary.
(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 Exchange Act and accordingly files certain information with
the Commission. Such reports and other documentation can be inspected and copied
at the public reference facilities maintained by the Commission located at 000
X. Xxxxxx, X.X., Xxxxxxxxxx X.X. 00000.
(9) Execution. This Restricted 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 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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[FORM OF REVERSE OF RESTRICTED 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 Restricted 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 Restricted
ADSs evidenced by such Holder's Restricted 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 Restricted ADRs evidencing whole Restricted 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 Restricted ADSs if additional Restricted 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 Restricted 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 Restricted 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 the Cayman Islands 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 Restricted ADSs evidenced by such Holder's Restricted ADRs
and (c) the manner in which such instructions may be given or deemed 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 Restricted ADSs evidenced by such
Holder's Restricted 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.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion, amend this Restricted ADR or
distribute additional or amended Restricted ADRs (with or without calling this
Restricted 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
Restricted 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
Restricted ADS evidenced by this Restricted 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, rule or
regulation of the United States, the People's Republic of China, the Cayman
Islands 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, delay or subject to any civil or criminal penalty any
act which the Deposit Agreement or this Restricted 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 Restricted ADR; (b)
assume no liability except to perform its obligations to the extent they are
specifically set forth in this Restricted 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 Restricted 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 Restricted 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 Restricted ADRs. Notwithstanding anything to
the contrary set forth in the Deposit Agreement or a Restricted 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 Restricted ADR or Restricted 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 Restricted 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 so to do delivered to
the Company, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of
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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.
(16) Amendment. Subject to the last sentence of paragraph (2), the
Restricted 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 a
Restricted ADR at the time any amendment to the Deposit Agreement so becomes
effective shall be deemed, by continuing to hold such Restricted 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
Restricted ADR to surrender such Restricted 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 Restricted ADSs to be registered on Form F-6 under the Securities Act of
1933 or (b) the Restricted 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 Restricted ADR to ensure compliance therewith, the Company and the Depositary
may amend or supplement the Deposit Agreement and the Restricted 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.
(17) Termination. The Depositary may, and shall at the written direction of
the Company, terminate the Deposit Agreement and this Restricted 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,
and (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 Restricted ADR, except to receive and hold
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(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 Restricted ADRs not theretofore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this Restricted 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
Restricted ADSs, upon acceptance of any Restricted 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 Restricted 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 Restricted 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 Restricted ADR(s), the
taking of such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
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