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JIANGXI COPPER COMPANY LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
Dated as of _________________, 2003
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _______________, 2003, among Jiangxi Copper
Company Limited, incorporated under the laws of the People's Republic of China
(herein called the "Company"), THE BANK OF NEW YORK, a New York banking
corporation (herein called the "Depositary"), and all Owners and Beneficial
Owners from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1
DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.1 American Depositary Shares.
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The term "American Depositary Shares" shall mean the securities
representing the interests in the Deposited Securities and evidenced by the
Receipts issued hereunder. Each American Depositary Share shall represent forty
(40) Shares, until there shall occur a distribution upon Deposited Securities
covered by Section 4.3 or a change in Deposited Securities covered by Section
4.8 with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall evidence the amount of Shares or
Deposited Securities specified in such Sections.
SECTION 1.2 Beneficial Owner.
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The term "Beneficial Owner" shall mean each person owning from time to time
any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.3 Commission.
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The term "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency in the United States.
SECTION 1.4 Company.
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The term "Company" shall mean Jiangxi Copper Company Limited, incorporated
under the laws of the People's Republic of China, and its successors.
SECTION 1.5 Consultation.
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The term "Consultation" shall mean the good faith attempt by the Depositary
to discuss the relevant issue in a timely manner with the Company.
SECTION 1.6 Custodian.
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The term "Custodian" shall mean the Hong Kong office of the Hong Kong and
Shanghai Banking Corporation Limited, as agent of the Depositary for the
purposes of this Deposit Agreement, and any other firm or corporation which may
hereafter be appointed by the Depositary pursuant to the terms of Section 5.5,
as substitute or additional custodian or custodians hereunder, as the context
shall require and shall also mean all of them collectively.
SECTION 1.7 Deposit, deliver, execute, issue, register, surrender,
transfer, withdraw or cancel.
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The terms "deposit", "deliver", "execute", "issue", "register",
"surrender", "transfer", "withdraw" or "cancel", when used with respect to
Shares, shall refer, where the context requires, to an entry or entries or an
electronic transfer or transfers in an account or accounts maintained by
institutions authorized under applicable law to effect transfers of securities
and not to the physical transfer of certificates representing the Shares.
SECTION 1.8 Deposit Agreement.
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The term "Deposit Agreement" shall mean this Agreement, as the same may be
amended from time to time in accordance with the provisions hereof.
SECTION 1.9 Depositary; Corporate Trust Office.
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The term "Depositary" shall mean The Bank of New York, a New York banking
corporation, and any successor as depositary hereunder. The term "Corporate
Trust Office", when used with respect to the Depositary, shall mean the office
of the Depositary which at the date of this Agreement is 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
SECTION 1.10 Deposited Securities.
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The term "Deposited Securities" as of any time shall mean Shares at such
time deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received by the Depositary or the
Custodian in respect thereof and at such time held hereunder, subject as to cash
to the provisions of Section 4.5.
SECTION 1.11 Dollars; Renminbi.
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The term "Dollars" shall mean United States dollars. The term "RMB" shall
mean renminbi, the lawful currency of the People's Republic of China.
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SECTION 1.12 Hong Kong.
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The term "Hong Kong" shall mean the Hong Kong Special Administrative Region
of the People's Republic of China.
SECTION 1.13 Non-U.S. Registrar.
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The term "Non-U.S. Registrar" shall mean the entity that presently carries
out the duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.14 Owner.
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The term "Owner" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
SECTION 1.15 Receipts.
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The term "Receipts" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares.
SECTION 1.16 Registrar.
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The term "Registrar" shall mean any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed to
register Receipts and transfers of Receipts as herein provided.
SECTION 1.17 Restricted Securities.
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The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 to the Securities Act of
1933), or which are held by an officer, director (or persons performing similar
functions) or other affiliate of the Company, or which would require
registration under the Securities Act of 1933 in connection with the offer and
sale thereof in the United States, or which are subject to other restrictions on
sale or deposit under the laws of the United States, Hong Kong or the People's
Republic of China, or under a shareholder agreement or the Articles of
Association of the Company.
SECTION 1.18 Section.
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Wherever references are made in this Deposit Agreement to a "Section" or
"Sections", such references shall mean a section or sections of this Deposit
Agreement, unless otherwise required by the context.
SECTION 1.19 Securities Act of 1933.
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The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.20 Shares.
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The term "Shares" shall mean Ordinary H Shares in registered form of the
Company, par value RMB1.00 each, heretofore validly issued and outstanding and
fully paid, nonassessable and free of any
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pre-emptive rights of the holders of outstanding Shares or hereafter validly
issued and outstanding and fully paid, nonassessable and free of any pre-emptive
rights of the holders of outstanding Shares or interim certificates representing
such Shares.
ARTICLE 2
FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND
DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Form and Transferability of Receipts.
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Definitive Receipts shall be substantially in the form set forth in Exhibit
A annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose,
unless such Receipt shall have been executed by the Depositary by the manual
signature of a duly authorized signatory of the Depositary; provided, however,
that such signature may be a facsimile signature if a Registrar for the Receipts
shall have been appointed and such Receipts are countersigned by the manual
signature of a duly authorized officer of the Registrar. The Depositary shall
maintain books on which each Receipt so executed and delivered as hereinafter
provided and the transfer of each such Receipt shall be registered. Receipts
bearing the manual or facsimile signature of a duly authorized signatory of the
Depositary who was at any time a proper signatory of the Depositary shall bind
the Depositary, notwithstanding that such signatory has ceased to hold such
office prior to the execution and delivery of such Receipts by the Registrar or
did not hold such office on the date of issuance of such Receipts.
The Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or modifications not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange upon which American Depositary Shares may
be listed or to conform with any usage with respect thereto, or to indicate any
special limitations or restrictions to which any particular Receipts are subject
by reason of the date of issuance of the underlying Deposited Securities or
otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of New York; provided, however, that
the Depositary, notwithstanding any notice to the contrary, may treat the Owner
thereof as the absolute owner thereof for the purpose of determining the person
entitled to distribution of dividends or other distributions or to any notice
provided for in this Deposit Agreement and for all other purposes.
SECTION 2.2 Deposit of Shares.
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Subject to the terms and conditions of this Deposit Agreement, Shares or
evidence of rights to receive Shares may be deposited by delivery thereof to any
Custodian hereunder, accompanied by any appropriate instrument or instruments of
transfer, or endorsement, in form satisfactory to the Custodian, together with
all such certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated in such
order, a Receipt or Receipts for the number of American Depositary Shares
representing such deposit.
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No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary that any necessary approval has been granted by
any governmental body in the People's Republic of China which is then performing
the function of the regulation of currency exchange. If required by the
Depositary, Shares presented for deposit at any time, whether or not the
transfer books of the Company or the Non-U.S. Registrar, if applicable, are
closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents specified
above, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Non-U.S. Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
SECTION 2.3 Execution and Delivery of Receipts.
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Upon receipt by any Custodian of any deposit pursuant to Section 2.2
hereunder (and in addition, if the transfer books of the Company or the Non-U.S.
Registrar, if applicable, are open, the Depositary may in its sole discretion
require a proper acknowledgment or other evidence from the Company that any
Deposited Securities have been recorded upon the books of the Company or the
Non-U.S. Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee), together with the other documents required as
specified above, such Custodian shall notify the Depositary of such deposit and
the person or persons to whom or upon whose written order a Receipt or Receipts
are deliverable in respect thereof and the number of American Depositary Shares
to be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees and expenses of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.9, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts.
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The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Owner in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of
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the United States of America. Thereupon the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents, upon prior
written notice to the Company, for the purpose of effecting transfers,
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
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Upon surrender at the Corporate Trust Office of the Depositary of a Receipt
for the purpose of withdrawal of the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, and upon payment of the
fee of the Depositary for the surrender of Receipts as provided in Section 5.9
and payment of all taxes and governmental charges payable in connection with
such surrender and withdrawal of the Deposited Securities, and subject to the
terms and conditions of this Deposit Agreement, the Owner of such Receipt shall
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of such Owner or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of transfer
to such Owner or as ordered by him and (b) any other securities, property and
cash to which such Owner is then entitled in respect of such Receipts to such
Owner or as ordered by him. Such delivery shall be made, as hereinafter
provided, without unreasonable delay.
A Receipt surrendered for such purposes may be required by the Depositary
to be properly endorsed in blank or accompanied by proper instruments of
transfer in blank, and if the Depositary so requires, the Owner thereof shall
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order. Thereupon the
Depositary shall direct the Custodian to deliver at the office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt, except that the Depositary may make
delivery to such person or persons at the Corporate Trust Office of the
Depositary of any dividends or distributions with respect to the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering a Receipt,
and for the account of such Owner, the Depositary shall direct the Custodian to
forward any cash or other property (other than rights) comprising, and forward a
certificate or certificates and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt to the Depositary for delivery at the Corporate Trust Office of the
Depositary. Such direction shall be given by letter or, at the request, risk and
expense of such Owner, by cable, telex or facsimile transmission.
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SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
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As a condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary, Custodian or Registrar may require payment
from the depositor of Shares or the presenter of the Receipt of a sum sufficient
to reimburse it for any tax or other governmental charge and any stock transfer
or registration fee with respect thereto (including any such tax or charge and
fee with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as herein provided, may require the production of proof
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with any regulations the Depositary may establish
consistent with the provisions of this Deposit Agreement, including, without
limitation, this Section 2.6.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting, or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under this Deposit Agreement
any Shares required to be registered under the provisions of the Securities Act
of 1933, unless a registration statement is in effect as to such Shares.
SECTION 2.7 Lost Receipts, etc.
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In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts.
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All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.9 Pre-Release of Receipts.
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The Depositary may issue Receipts against delivery by the Company (or any
agent of the Company recording Share ownership) of rights to receive Shares from
the Company (or any such agent of the Company). No such issue of Receipts will
be deemed a "Pre-Release" that is subject to the restrictions of the following
paragraph.
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Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 hereof, execute and deliver Receipts
prior to the receipt of Shares pursuant to Section 2.2 ("Pre-Release"). The
Depositary may, pursuant to Section 2.5, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the Shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial right, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Share or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be, other than in satisfaction of such Pre-Release), (b) at all time fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than five
(5) business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the Depositary reserves the
right to disregard such limit from time to time as it deems reasonably
appropriate, and may, with the prior written consent of the Company, change such
limit for purposes of general application. The Depositary will also set Dollar
limits with respect to Pre-Release transactions to be entered into hereunder
with any particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfill its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
Receipts upon termination of a Pre-Release transaction (and shall not, for the
avoidance of doubt, constitute Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
SECTION 2.10 Maintenance of Records.
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The Depositary agrees to maintain records of all Receipts surrendered and
Deposited Securities withdrawn under Section 2.5, substitute Receipts delivered
under Section 2.7, and of cancelled or destroyed Receipts under Section 2.8, in
keeping with procedures ordinarily followed by stock transfer agents located in
The City of New York. These records shall be open for inspection by the Company
at all reasonable times.
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ARTICLE 3
CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL
OWNERS OF RECEIPTS
SECTION 3.1 Filing Proofs, Certificates and Other Information.
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Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Company or
the Non-U.S. Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper. The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made.
The Depositary shall, as promptly as practicable, upon the Company's
written request, provide to the Company copies of any such proofs and
certificates and such written representations and warranties that it receives.
SECTION 3.2 Liability of Owner or Beneficial Owner for Taxes.
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If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner or Beneficial Owner of such Receipt to the
Depositary. The Depositary may refuse to effect any transfer of such Receipt or
any withdrawal of Deposited Securities represented by American Depositary Shares
evidenced by such Receipt until such payment is made, and may withhold any
dividends or other distributions, or may sell for the account of the Owner or
Beneficial Owner thereof any part or all of the Deposited Securities represented
by the American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Owner or Beneficial Owner of such
Receipt shall remain liable for any deficiency.
SECTION 3.3 Warranties on Deposit of Shares.
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Every person depositing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, nonassessable and free of any preemptive rights
of the holders of outstanding Shares and that the person making such deposit is
duly authorized so to do. Every such person shall also be deemed to represent
that such Shares and the Receipts evidencing American Depositary Shares
representing such Shares would not be Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
SECTION 3.4 Disclosure of Interests.
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The Company may from time to time request Owners or former Owners to
provide information (a) as to the capacity in which they own or owned Receipts,
(b) regarding the identity of any other persons then or previously interested in
such Receipts and (c) the nature of such interest and various other matters.
Each Owner agrees to provide any information requested by the Company pursuant
to this Section. The Depositary agrees to use reasonable efforts to comply with
written instructions received from the
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Company requesting that the Depositary forward any such requests to the Owners
or former Owners and to forward to the Company any responses to such requests
received by the Depositary.
The Depositary further agrees that it shall use its reasonable efforts to
cooperate with the Company, to the extent permitted under applicable law, in
enforcing the provisions of the Hong Kong Securities (Disclosure of Interests)
Ordinance and any other legislation or regulations of Hong Kong from time to
time relating to disclosure of interests, including sanctions that the Company
may invoke in the event an Owner fails to provide certain requested information
concerning interests in Receipts or Deposited Securities. Such sanctions may
include limitations on the transfer of such Deposited Securities.
An Owner also may have a duty under the Hong Kong Securities (Disclosure of
Interests) Ordinance to notify the Company if such Owner becomes aware that its
interest (which term is broadly defined under such Ordinance) in Deposited
Securities evidenced by Receipts together with any other interests of such Owner
in Deposited Securities is the equivalent of 10% or more of the issued share
capital of the Company. Under the Hong Kong Securities (Disclosure of Interests)
Ordinance, such Owner may be required to further notify the Company in the event
such Owner's interest changes by such percentage as would cross a whole
percentage point or such Owner ceases to have an interest in 10% or more of the
securities of the Company.
SECTION 3.5 Takeovers.
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Each Owner agrees that in relation to the acquisition of beneficial
ownership or control of Shares (including Shares represented by American
Depositary Shares), the Owner shall have regard to and shall comply with the
Code on Takeovers and Mergers issued by the Securities and Futures Commission of
Hong Kong as such code may be amended and supplemented from time to time and
agrees to comply with such other laws, regulations and codes of practice
applicable to the acquisition of beneficial ownership or control of Shares in
Hong Kong whether or not such may be enforceable against such Owner.
SECTION 3.6 Ownership Restrictions.
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The Company may restrict, in such manner as it deems appropriate, transfers
of the Shares where such transfer might result in ownership of Shares exceeding
the prescribed limits under applicable law or the Company's Articles of
Association. The Company may also restrict, in such manner as it deems
appropriate, transfers of the American Depositary Shares where such transfer may
result in the total number of Shares represented by the American Depositary
Shares beneficially owned by an Owner or Beneficial Owner to exceeding the
prescribed limits under any applicable law or the Company's Articles of
Association. The Company may, in its sole discretion, instruct the Depository to
take reasonable steps with respect to the ownership interest of any Owner or
Beneficial Owner in excess of the limitation set forth in the preceding
sentence, including but not limited to, a mandatory sale or disposition on
behalf of an Owner or Beneficial Owner of the Shares represented by the American
Depositary Shares held by such Owner or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is reasonably practicable and
permitted by applicable law. The Depositary shall not be obligated to ensure
compliance with the ownership restrictions described in this Section 3.6 except
to the extent of taking action in accordance with instructions received from the
Company as provided in the immediately preceding sentence.
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ARTICLE 4
THE DEPOSITED SECURITIES
SECTION 4.1 Cash Distributions.
------------------
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.5, convert such dividend or distribution into Dollars
and shall distribute the amount thus received (net of the fees and expenses of
the Depositary as provided in Section 5.9) to the Owners entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Company or the Depositary shall be required to withhold and does
withhold from such cash dividend or such other cash distribution an amount on
account of taxes, the amount distributed to the Owner of the Receipts evidencing
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Owner a fraction of one cent.
Any such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Owners entitled thereto. The Company or its agent will remit to
the appropriate governmental agency in Hong Kong all amounts withheld and owing
to such agency. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental agencies, and
the Depositary or the Company or its agent may file any such reports necessary
to obtain benefits under the applicable tax treaties for the Owners of Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
-----------------------------------------------
Subject to the provisions of Sections 4.11 and 5.9, whenever the Depositary
shall receive any distribution other than a distribution described in Section
4.1, 4.3 or 4.4, the Depositary shall, after Consultation with the Company,
cause the securities or property received by it to be distributed to the Owners
entitled thereto, after deduction or upon payment of any fees and expenses of
the Depositary or any taxes or other governmental charges, in proportion to the
number of American Depositary Shares representing such Deposited Securities held
by them respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or Beneficial Owners) the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method, after Consultation with the
Company, as it may deem equitable and practicable for the purpose of effecting
such distribution, including, but not limited to, the public or private sale of
the securities or property thus received, or any part thereof, and the net
proceeds of any such sale (net of the fees and expenses of the Depositary as
provided in Section 5.9) shall be distributed by the Depositary to the Owners
entitled thereto, all in the manner and subject to the conditions described in
Section 4.1.
SECTION 4.3 Distributions in Shares.
-----------------------
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may, and shall if the
Company so requests, distribute to the Owners of outstanding Receipts entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, additional Receipts
evidencing an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free
11
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees and
expenses of the Depositary as provided in Section 5.9. The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company that such distribution does not require registration
under the Securities Act of 1933 or is exempt from registration under the
provisions of such Act. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary shall sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.1. If additional Receipts are not so distributed, each American Depositary
Share shall thenceforth also represent the additional Shares distributed upon
the Deposited Securities represented thereby.
SECTION 4.4 Rights.
------
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
Consultation with the Company, have discretion as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines in its discretion, after Consultation with
the Company, that it is lawful and feasible to make such rights available to all
or certain Owners but not to other Owners, the Depositary may distribute to any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner hereunder, the Depositary will make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of this Deposit Agreement, and shall, pursuant to Section 2.3 of
this Deposit Agreement, execute and deliver Receipts to such Owner. In the case
of a distribution pursuant to the second paragraph of this section, such
Receipts shall be legended in accordance with applicable U.S. laws, and shall be
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the
12
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.9 and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of this Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective or to do
anything required to enable qualification with any such exemption. If an Owner
of Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such Act, the
Depositary shall not effect such distribution unless it has received an opinion
from recognized counsel in the United States for the Company upon which the
Depositary may rely that such distribution to such Owner is exempt from such
registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
SECTION 4.5 Conversion of Foreign Currency.
------------------------------
Whenever the Depositary or the Custodian shall receive foreign currency, by
way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Section 5.9.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
13
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
SECTION 4.6 Fixing of Record Date.
---------------------
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners who shall be (i)
entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting, or (iii) who shall be responsible for any fee
assessed by the Depositary pursuant to this Deposit Agreement, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares. Subject to the provisions of Sections 4.1 through 4.5 and to the other
terms and conditions of this Deposit Agreement, the Owners on such record date
shall be entitled, as the case may be, to receive the amount distributable by
the Depositary with respect to such dividend or other distribution or such
rights or the net proceeds of sale thereof in proportion to the number of
American Depositary Shares held by them respectively and to give voting
instructions and to act in respect of any other such matter.
SECTION 4.7 Voting of Deposited Securities.
------------------------------
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Company, (b) a statement that the Owners as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of the law of the People's Republic of China and of the
Articles of Association of the Company, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective American Depositary
Shares and (c) a statement as to the manner in which such instructions may be
given. Upon the written request of an Owner on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor, in so far as practicable, to vote or cause to be voted the
amount of Shares or other Deposited Securities represented by the American
Depositary Shares evidenced by such Receipt in accordance with the instructions
set forth in such request. The Depositary shall not vote or attempt to exercise
the right to vote that attaches to the Shares or other Deposited Securities,
other than in accordance with such instructions.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the instruction date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
If, after complying with the procedures set forth in this Section, the
Depositary does not receive instructions from any Owner with respect to any of
the Deposited Securities represented by the American Depositary Shares evidenced
by such Owner's Receipts on or before the date established by the Depositary for
such purpose, the Depositary shall deem such Owner to have instructed the
Depositary to
14
give a discretionary proxy designated by the Company with respect to such
Designated Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
that no such instruction shall be given with respect to any matter as to which
the Issuer informs the Depositary (and the Company agrees to provide such
information as promptly as practicable in writing) that (x) the Company does not
wish such proxy given, (y) substantial opposition exists or (z) such matter
materially and adversely affects the rights of holders of Shares.
SECTION 4.8 Changes Affecting Deposited Securities.
--------------------------------------
In circumstances where the provisions of Section 4.3 do not apply, upon any
change in nominal value, change in par value, split-up, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for or in conversion of or in respect of
Deposited Securities, shall be treated as new Deposited Securities under this
Deposit Agreement, and American Depositary Shares shall thenceforth represent,
in addition to the existing Deposited Securities, the right to receive the new
Deposited Securities so received in exchange or conversion, unless additional
Receipts are delivered pursuant to the following sentence. In any such case the
Depositary may, and shall, if the Company shall so request, execute and deliver
additional Receipts as in the case of a dividend in Shares, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts specifically
describing such new Deposited Securities.
SECTION 4.9 Reports.
-------
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also send to the Owners copies of such reports when furnished
by the Company pursuant to Section 5.6. Any such reports and communications,
including any such proxy soliciting material, furnished to the Depositary by the
Company shall be furnished in English, to the extent such materials are required
to be translated into English pursuant to any regulations of the Commission.
SECTION 4.10 Lists of Owners.
---------------
Promptly upon request by the Company, the Depositary shall, at the expense
of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the books of the Depositary.
SECTION 4.11 Withholding.
-----------
In connection with any distribution to Owners or Beneficial Owners and the
related remittance of any amount to any appropriate government or regulatory
authority required to be withheld by the Company or the Depositary and owing to
such authority, the Company or its agent may request from the Depositary, and
the Depositary will forward to the Company or its agent, such information from
its records to enable the Company or its agent to comply with any request from
or requirement of such authority. In the event that the Depositary determines
that any distribution in property (including Shares and rights to subscribe
therefor) is subject to any tax or other governmental charge which the
Depositary is obligated to withhold, the Depositary may by public or private
sale dispose of all or a portion of such property (including Shares and rights
to subscribe therefor) in such amounts and in such manner as the Depositary
deems necessary and practicable to pay such taxes or charges and the Depositary
shall
15
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Owners entitled thereto in proportion to the number of
American Depositary Shares held by them respectively.
ARTICLE 5
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary.
----------------------------------------------------------
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners; provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
business or object other than the business of the Company or a matter related to
this Deposit Agreement or the Receipts.
The Depositary may, or may at the written request of the Company, close the
transfer books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges in the United States, after Consultation
with the Company, the Depositary shall act as Registrar or appoint a Registrar
or one or more co-registrars for registry of such Receipts in accordance with
any requirements of such exchange or exchanges.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Company.
-------
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if, by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any governmental or regulatory authority or stock exchange, or by reason
of any provision, present or future, of the Articles of Association of the
Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any act
of God or war or terrorism or other circumstances beyond its control, the
Depositary or the Company shall be prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of this Deposit Agreement or Deposited
Securities it is provided shall be done or performed; nor shall the Depositary
or the Company or any of their respective directors, employees, agents or
affiliates incur any liability to any Owner or Beneficial Owner of any Receipt
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this Deposit Agreement it
is provided shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of a distribution pursuant to Section 4.1, 4.2, or 4.3 of
this Deposit Agreement, or an offering or distribution pursuant to Section 4.4
of this Deposit Agreement, or for any other reason, such distribution or
offering may not be made available to Owners, and the Depositary may not dispose
of such distribution or offering on behalf of such Owners and make the net
proceeds available to such Owners, then the Depositary shall not make such
distribution or offering, and shall allow any rights, if applicable, to lapse.
16
SECTION 5.3 Obligations of the Depositary, the Custodian and the Company.
------------------------------------------------------------
The Company assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners, except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
against all expense and liability shall be furnished as often as may be
required, and the Custodian shall not be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being solely to
the Depositary.
Neither the Depositary nor the Company shall be liable for any action or
nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Owner or any
other person believed by it in good faith to be competent to give such advice or
information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary; provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote; provided that any such
action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is intended by
any provision of this Deposit Agreement.
SECTION 5.4 Resignation and Removal of the Depositary.
-----------------------------------------
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days' prior
written notice of such removal, to become effective upon the later of (i) the
120th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment
17
hereunder, and thereupon such successor depositary, without any further act or
deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor; but such predecessor, nevertheless, upon payment
of all sums due it and on the written request of the Company shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Deposited Securities to such successor, and shall
deliver to such successor a list of the Owners of all outstanding Receipts. Any
such successor depositary shall promptly mail notice of its appointment to the
Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.5 The Custodians.
--------------
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If, upon such resignation,
there shall be no Custodian acting hereunder, the Depositary shall, promptly
after receiving such notice, appoint a substitute custodian or custodians, each
of which shall thereafter be a Custodian hereunder. Whenever the Depositary in
its discretion determines that it is in the best interest of the Owners to do
so, it may appoint a substitute or additional custodian or custodians, each of
which shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to the Depositary, forthwith upon its appointment, an acceptance
of such appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent hereunder of such successor depositary and the appointment of
such successor depositary shall in no way impair the authority of each Custodian
hereunder; but the successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.6 Notices and Reports.
-------------------
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
18
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
-----------------------------------------------
The Company agrees that in the event of any issuance or distribution of (1)
additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into or exchangeable for Shares, or (4) rights to subscribe for such
securities (each a "Distribution"), the Company will promptly furnish to the
Depositary a written opinion from U.S. counsel for the Company, which counsel
shall be reasonably satisfactory to the Depositary, stating whether or not the
Distribution requires a registration statement under the Securities Act of 1933
to be in effect prior to making such Distribution available to Owners entitled
thereto. If, in the opinion of such counsel a registration statement is
required, such counsel shall furnish to the Depositary a written opinion as to
whether or not there is a registration statement in effect which will cover such
Distribution.
The Company agrees with the Depositary that neither the Company nor any
company controlled by, controlling or under common control with the Company will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Company or any such affiliate, unless a Registration
Statement is in effect as to such Shares under the Securities Act of 1933.
In the event of any issuance of any additional securities, the Company
shall have no obligation to register such additional securities under the
Securities Act of 1933.
The Depositary shall use its best efforts to comply with the written
notices of the Company not to accept knowingly for deposit hereunder any
securities identified in such notices at such times and under such circumstances
as may be specified in such notices, in order to facilitate the Company's
compliance with the securities laws of the United States of America.
SECTION 5.8 Indemnification.
---------------
The Company agrees to indemnify the Depositary, its directors, employees,
agents and affiliates and any Custodian against, and hold each of them harmless
from, any liability or expense (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities or
the offer or sale thereof in the United States or out of acts performed or
omitted, in accordance with the provisions of this Deposit Agreement and of the
Receipts, as the same may be amended, modified or supplemented from time to
time, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of any of them, or (ii) by the Company or any
of its directors, employees, agents and affiliates.
The Company shall not indemnify the Depositary or any Custodian against any
liability or expense arising out of or in connection with information relating
to the Depositary or any Custodian, as the case may be, furnished in writing to
the Company and executed by the Depositary or the Custodian expressly for the
use in any registration statement, prospectus. (or placement memorandum) or
preliminary prospectus (or preliminary placement memorandum) relating to the
Shares evidenced by the American Depositary Shares.
The Depositary agrees to indemnify the Company, its directors, employees,
agents and affiliates against, and hold each of them harmless from, any
liability or expense (including, but not limited to, the reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted by the
Depositary or its Custodian or their respective directors, employees, agents and
affiliates due to their negligence or bad faith.
19
If an action, proceeding (including, but not limited to, any governmental
investigation, claim or dispute) (collectively, a "Proceeding") in respect of
which indemnity may be sought by either party is brought or asserted against the
other party, the party seeking indemnification (the "Indemnitee") shall promptly
(and in no event more than ten (10) days after receipt of notice of such
Proceeding) notify the party obligated to provide such indemnification (the
"Indemnitor") of such Proceeding. The failure of the Indemnitee to so notify the
Indemnitor shall not impair the Indemnitee's ability to seek indemnification
from the Indemnitor (but only for costs, expenses and liabilities incurred after
such notice) unless such failure adversely effects the Indemnitor's ability to
adequately oppose or defend such Proceeding. Upon receipt of such notice from
the Indemnitee, the Indemnitor shall be entitled to participate in such
Proceeding and, to the extent that it shall so desire and provided no conflict
of interest exists as specified in subparagraph (b) below or there are no other
defenses available to the Indemnitee as specified in subparagraph (d) below, to
assume the defense thereof with counsel reasonably satisfactory to the
Indemnitee (in which case all attorney's fees and expenses shall be borne by the
Indemnitor and the Indemnitor shall in good faith defend the Indemnitee). The
Indemnitee shall have the right to employ separate counsel in any such
Proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be borne by the Indemnitee unless (a) the Indemnitor
agrees in writing to pay such fees and expenses, (b) the Indemnitee shall have
reasonably and in good faith concluded that there is a conflict of interest
between the Indemnitor and the Indemnitee in the conduct of the defense of such
action, (c) the Indemnitor fails, within ten (10) days prior to the date the
first response or appearance is required to be made in such Proceeding, to
assume the defense of such Proceeding with counsel reasonably satisfactory to
the Indemnitee or (d) there are legal defenses available to Indemnitee that are
difference from or in addition to those available to the Indemnitor. No
compromise or settlement of such Proceeding may be effected by either party
without the other party's consent unless (i) there is no finding or admission of
any violation of law and no effect on any other claims that may be made against
such other party and (ii) the sole relief provided is monetary damages that are
paid in full by the party seeking the settlement. Neither party shall have any
liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss, expense
or liability incurred by the Indemnitee as a result of a default judgment
entered against the Indemnitee unless such judgement was entered after the
Indemnitor agreed, in writing, to assume the defense of such Proceeding.
The obligations set forth in this Section 5.8 shall survive the termination
of this Deposit Agreement and the succession or substitution of any indemnified
person. No Owner shall have any rights under this Section 5.8.
SECTION 5.9 Charges of Depositary.
---------------------
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3), or by Owners, as applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Company or Non-U.S. Registrar and applicable to transfers of Shares to or from
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such
20
cable, telex and facsimile transmission expenses as are expressly provided in
this Deposit Agreement, (4) such expenses as are incurred by the Depositary in
the conversion of foreign currency pursuant to Section 4.5, (5) a fee of $5.00
or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.3, 4.3 or 4.4 and the
surrender of Receipts pursuant to Section 2.5 or 6.2, (6) a fee of $.02 or less
per American Depositary Share (or portion thereof) for any cash distribution
made pursuant to the Deposit Agreement, including, but not limited to Sections
4.1 through 4.4 hereof, (7) a fee for the distribution of securities pursuant to
Section 4.2, such fee being in an amount equal to the fee for the execution and
delivery of American Depositary Shares referred to above which would have been
charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares) but which
securities are instead distributed by the Depositary to Owners, (8) a fee of
$.02 or less per American Depositary Share (or portion thereof) for depositary
services, which will accrue on the last day of each calendar year and which will
be payable as provided in clause (9) below; provided, however, that no fee will
be assessed under this clause (8) to the extent a fee of $.02 was charged
pursuant to clause (6) above during that calendar year and (9) any other charge
payable by the Depositary, any of the Depositary's agents, including the
Custodian, or the agents of the Depositary's agents in connection with the
servicing of Shares or other Deposited Securities (which charge shall be
assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.6 and shall be payable at the sole discretion of the
Depositary by billing such Owners for such charge or by deducting such charge
from one or more cash dividends or other cash distributions).
The Depositary, subject to Section 2.9 hereof, may own and deal in any
class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
---------------------------------
The Depositary is authorized to destroy those documents, records, bills and
other data compiled during the term of this Deposit Agreement at the times
permitted by the laws or regulations governing the Depositary unless the Company
requests that such papers be retained for a longer period or turned over to the
Company or to a successor depositary.
SECTION 5.11 Exclusivity.
-----------
The Company agrees not to appoint any other depositary for issuance of
American Depositary Receipts so long as The Bank of New York is acting as
Depositary hereunder.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment.
---------
The form of the Receipts and any provisions of this Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or Beneficial Owners of
Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners, shall, however,
not become effective as to outstanding Receipts until the expiration of 30 days
after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no
21
event shall any amendment impair the right of the Owner of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination.
-----------
The Depositary shall, at any time at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding, if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4. On and after
the date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5, and
(c) payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt. If any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts, shall
suspend the distribution of dividends to the Owners thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights and other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt in accordance
with the terms and conditions of this Deposit Agreement, and any applicable
taxes or governmental charges). At any time after the expiration of one year
from the date of termination, the Depositary may sell the Deposited Securities
then held hereunder and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under this Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary under Sections
5.8 and 5.9 hereof. The obligations of the Depositary under Section 5.8 shall
survive the termination of this Deposit Agreement.
ARTICLE 7
MISCELLANEOUS
SECTION 7.1 Counterparts.
------------
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Owner or Beneficial Owner of a Receipt during business hours.
22
SECTION 7.2 No Third Party Beneficiaries.
----------------------------
This Deposit Agreement is for the exclusive benefit of the parties hereto
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
SECTION 7.3 Severability.
------------
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.4 Owners and Beneficial Owners as Parties; Binding Effect.
-------------------------------------------------------
The Owners and Beneficial Owners of Receipts from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.5 Notices.
-------
Any and all notices to be given to the Company shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to Jiangxi Copper Company Limited,
00 Xxxxx Xxxx, Xxxxx Xxxx, Xxxxxxx Xxxxxxxx 000000, China, or any other place to
which the Company may have transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if in English and personally delivered or sent by mail or cable,
telex or facsimile transmission confirmed by letter, addressed to The Bank of
New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: American
Depositary Receipt Administration, or any other place to which the Depositary
may have transferred its Corporate Trust Office.
Any and all notices to be given to any Owner shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for Receipts of the Depositary, or, if
such Owner shall have filed with the Depositary a written request that notices
intended for such Owner be mailed to some other address, at the address
designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile transmission
shall be deemed to be effective at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box. The Depositary or the Company may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable, telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.6 Arbitration; Settlement of Disputes.
-----------------------------------
(a) Any controversy, claim or cause of action brought by any
party hereto against the Company arising out of or relating to the Shares or
other Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, or the breach hereof or thereof, shall be settled by arbitration in
accordance with the International Arbitration Rules of the American Arbitration
Association, and judgment upon the award rendered by the arbitrators may be
entered in any court having jurisdiction
23
thereof; provided, however, that in the event of any third-party litigation to
which the Depositary is a party and to which the Company may properly be joined,
the Company may be so joined in any court in which such litigation is
proceeding; and provided, further, that any such controversy, claim or cause of
action brought by a party hereto against the Company relating to or based upon
the provisions of the Federal securities laws of the United States or the rules
and regulations promulgated thereunder may, but need not, be submitted to
arbitration as provided in this Section 7.6.
The place of the arbitration shall be Xxx Xxxx xx Xxx Xxxx, Xxxxx xx Xxx
Xxxx, Xxxxxx Xxxxxx of America, and the language of the arbitration shall be
English.
The number of arbitrators shall be three, each of whom shall be
disinterested in the dispute or controversy, shall have no connection with any
party thereto, and shall be an attorney experienced in international securities
transactions. Each party shall appoint one arbitrator and the two arbitrators
shall select a third arbitrator who shall serve as chairperson of the tribunal.
If a dispute, controversy or cause of action shall involve more than two
parties, the parties shall attempt to align themselves in two sides (i.e.,
claimant and respondent), each of which shall appoint one arbitrator as if there
were only two parties to such dispute, controversy or cause of action. If such
alignment and appointment shall not have occurred within twenty (20) calendar
days after the initiating party serves the arbitration demand, the American
Arbitration Association shall appoint the three arbitrators. The parties and the
American Arbitration Association may appoint from among the nationals of any
country, whether or not a party is a national of that country.
The arbitrators shall have no authority to award any consequential, special
or punitive damages or other damages not measured by the prevailing party's
actual damages and may not, in any event, make any ruling, finding or award that
does not conform to the terms and conditions of this Agreement.
(b) Any controversy, claim or cause of action arising out of
or relating to the Shares or other Deposited Securities, the American Depositary
Shares, the Receipts or this Deposit Agreement not subject to arbitration under
this Section 7.6 shall be litigated in the Federal and state courts in the
Borough of Manhattan, The City of New York, and the Company hereby submits to
the personal jurisdiction of the court in which such action or proceeding is
brought.
SECTION 7.7 Submission to Jurisdiction; Appointment of Agent for Service
of Process.
----------
The Company hereby (i) irrevocably designates and appoints [CT Corporation,
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000], in the State of New York, as
the Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Company further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force. In the event the Company fails to continue such
designation and appointment in full force and effect, the Company hereby waives
personal service of process upon it and consents that any such service of
process may be made by certified or registered mail, return receipt requested,
directed to the Company at its address last specified for notices hereunder, and
service so made shall be deemed completed five (5) days after the same shall
have been so mailed.
24
SECTION 7.8 Waiver of Immunities.
--------------------
To the extent that the Company or any of its properties, assets or revenues
may have or may hereafter become entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, the Company, to the
fullest extent permitted by law, hereby irrevocably and unconditionally waives,
and agrees not to plead or claim, any such immunity and consents to such relief
and enforcement.
SECTION 7.9 Governing Law.
-------------
This Deposit Agreement and the Receipts shall be interpreted and all rights
hereunder and thereunder and provisions hereof and thereof shall be governed by
the laws of the State of New York, except with respect to its authorization and
execution by the Company, which shall be governed by the laws of the People's
Republic of China.
25
IN WITNESS WHEREOF, JIANGXI COPPER COMPANY LIMITED and THE BANK OF NEW YORK
have duly executed this Deposit Agreement as of the day and year first set forth
above and all Owners and Beneficial Owners shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof.
JIANGXI COPPER COMPANY LIMITED
By:___________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:___________________________________
Name:
Title:
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents forty (40)
deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY H SHARES OF
THE PAR VALUE OF RMB1.00 EACH OF
JIANGXI COPPER COMPANY LIMITED
(INCORPORATED UNDER THE LAWS OF THE PEOPLE'S REPUBLIC OF CHINA
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that___________ ____________________________________________,
or registered assigns IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited Ordinary H Shares (herein called "Shares") of Jiangxi
Copper Company Limited, incorporated under the laws of the People's Republic of
China (herein called the "Company"). At the date hereof, each American
Depositary Share represents forty (40) Shares deposited or subject to deposit
under the Deposit Agreement (as such term is hereinafter defined) at the Hong
Kong office of the Hong Kong and Shanghai Banking Corporation Limited (herein
called the "Custodian"). The Depositary's Corporate Trust Office is located at a
different address than its principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal
executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein called
"Receipts"), all issued and to be issued upon the terms and conditions set forth
in the deposit agreement, dated as of ______________, 2003 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and Beneficial Owners from time to time of Receipts issued thereunder, each of
whom by accepting a Receipt agrees to become a party thereto and become bound by
all the terms and conditions thereof. The Deposit Agreement sets forth the
rights of Owners and Beneficial Owners of the Receipts and the rights and duties
of the Depositary in respect of the Shares deposited thereunder and any and all
other securities, property and cash from time to time received in respect of
such Shares and held thereunder (such Shares, securities, property, and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
A-1
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of this
Receipt, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner
hereof is entitled to delivery, to him or upon his order, of the Deposited
Securities at the time represented by the American Depositary Shares for which
this Receipt is issued. Delivery of such Deposited Securities may be made by the
delivery of (a) certificates in the name of the Owner hereof or as ordered by
him or certificates properly endorsed or accompanied by proper instruments of
transfer and (b) any other securities, property and cash to which such Owner is
then entitled in respect of this Receipt. Such delivery will be made at the
option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary; provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of the Shares or the presentor
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
the Deposit Agreement or this Receipt, including, without limitation, this
Article 3.
The delivery of Receipts against deposit of Shares generally or against
deposit of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of the Deposit Agreement or this
Receipt, or for any other reason, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders' meeting, or the payment of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the provisions of the Securities Act of 1933, unless a registration statement is
in effect as to such Shares.
A-2
4. LIABILITY OF OWNER OR BENEFICIAL OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner or Beneficial Owner hereof to
the Depositary. The Depositary may refuse to effect any transfer of this Receipt
or any withdrawal of Deposited Securities represented by American Depositary
Shares evidenced by such Receipt until such payment is made, and may withhold
any dividends or other distributions, or may sell for the account of the Owner
or Beneficial Owner hereof any part or all of the Deposited Securities
represented by the American Depositary Shares evidenced by this Receipt, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner or Beneficial
Owner hereof shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, non-assessable, and free of any preemptive
rights of the holders of outstanding Shares and that the person making such
deposit is duly authorized so to do. Every such person shall also be deemed to
represent that such Shares and the Receipts evidencing American Depositary
Shares representing such Shares would not be Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt may be required from time to time to file with the Depositary or
the Custodian such proof of citizenship or residence, exchange control approval,
or such information relating to the registration on the books of the Company or
the Non-U.S. Registrar, if applicable, to execute such certificates and to make
such representations and warranties, as the Depositary may deem necessary or
proper. The Depositary may withhold the delivery or registration of transfer of
any Receipt or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. No Share shall be accepted for
deposit unless accompanied by evidence satisfactory to the Depositary that any
necessary approval has been granted by any governmental body in the People's
Republic of China which is then performing the function of the regulation of
currency exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), or by Owners, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share
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register of the Company or Non-U.S. Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.5 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.3, 4.3 or 4.4 of the Deposit Agreement and the
surrender of Receipts pursuant to Section 2.5 or 6.2 of the Deposit Agreement,
(6) a fee of $.02 or less per American Depositary Share (or portion thereof) for
any cash distribution made pursuant to Sections 4.1 through 4.4 of the Deposit
Agreement, (7) a fee for the distribution of securities pursuant to Section 4.2
of the Deposit Agreement, such fee being in an amount equal to the fee for the
execution and delivery of American Depositary Shares referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they were Shares),
but which securities are instead distributed by the Depositary to Owners, (8) a
fee of $.02 or less per American Depositary Share (or portion thereof) for
depositary services, which will accrue on the last day of each calendar year and
which will be payable as provided in clause (9) below; provided, however, that
no fee will be assessed under this clause (8) to the extent a fee of $.02 was
charged pursuant to clause (6) above during that calendar year and (9) any other
charge payable by the Depositary, any of the Depositary's agents, including the
Custodian, or the agents of the Depositary's agents in connection with the
servicing of Shares or other Deposited Securities (which charge shall be
assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.6 of the Deposit Agreement and shall be payable at the
sole discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any class
of securities of the Company and its affiliates and in Receipts.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may issue Receipts against delivery by the Company (or any
agent of the Company recording Share ownership) of rights to receive Shares from
the Company (or any such agent of the Company). No such issue of Receipts will
be deemed a "Pre-Release" that is subject to the restrictions of the following
paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 of the Deposit Agreement, execute
and deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 of
the Deposit Agreement ("Pre-Release"). The Depositary may, pursuant to Section
2.5 of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of Receipts which have been Pre-Released, whether or not such cancellation is
prior to the termination of such Pre-Release or the Depositary knows that such
Receipt has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded
or accompanied by a written representation and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial right, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Share or Receipts, as the case may be, that is inconsistent with the
transfer of beneficial ownership (including, without the consent of the
Depositary, disposing of such Shares or Receipts, as the case may be, other than
in satisfaction of such Pre-Release), (b) at all time fully collateralized with
cash, U.S. government securities or such other collateral as the Depositary
determines, in good faith, will provide substantially similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) business
days notice, and (d) subject to such further indemnities and
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credit regulations as the Depositary deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares outstanding at any time
as a result of Pre-Releases will not normally exceed thirty percent (30%) of the
Shares deposited under the Deposit Agreement; provided, however, that the
Depositary reserves the right to disregard such limit from time to time as it
deems reasonably appropriate, and may, with the prior written consent of the
Company, change such limit for purposes of general application. The Depositary
will also set Dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case-by-case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver Shares or Receipts upon termination of a Pre-Release
transaction (and shall not, for the avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and Beneficial
Owner of this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt when properly endorsed or accompanied by proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of a negotiable instrument under the laws of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof for the purpose of determining the
person entitled to distribution of dividends or other distributions or to any
notice provided for in the Deposit Agreement or for all other purposes.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however that such signature
may be a facsimile signature if a Registrar for the Receipts shall have been
appointed and such Receipts are countersigned by the manual signature of a duly
authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934, as amended. Such reports and communications will be
available for inspection and copying by Owners and Beneficial Owners at the
public reference facilities maintained by the Commission located at 000 Xxxxx
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary will also send to Owners of Receipts copies of such reports when
furnished by the Company pursuant to the Deposit Agreement. Any such reports and
communications, including any such proxy
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soliciting material, furnished to the Depositary by the Company shall be
furnished in English to the extent such materials are required to be translated
into English pursuant to any regulations of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Owners of Receipts provided that such
inspection shall not be for the purpose of communicating with Owners of Receipts
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States Dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into Dollars and will distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Article
7 hereof and Section 5.9 of the Deposit Agreement) to the Owners of Receipts
entitled thereto; provided, however, that in the event that the Company or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, the amount distributed to the Owners of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly.
Subject to the provisions of Section 4.11 and 5.9 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Section 4.1, 4.3 or 4.4 of the Deposit Agreement, the Depositary
will, after Consultation with the Company, cause the securities or property
received by it to be distributed to the Owners entitled thereto, after deduction
or upon payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees and expenses of the Depositary as provided in Article 7
hereof and Section 5.9 of the Deposit Agreement) will be distributed by the
Depositary to the Owners of Receipts entitled thereto, all in the manner and
subject to the conditions described in Section 4.1 of the Deposit Agreement.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may, after Consultation with the Company, and shall if
the Company so requests, distribute to the Owners of outstanding Receipts
entitled thereto, additional Receipts evidencing an aggregate number of American
Depositary Shares representing the amount of Shares received as such dividend or
free distribution, subject to the terms and conditions of the Deposit Agreement
with respect to the deposit of Shares and the issuance of American Depositary
Shares evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees and expenses of the Depositary as provided in Article 7
hereof and Section 5.9 of the Deposit Agreement. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary will
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.1 of the Deposit
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Agreement. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13. RIGHTS.
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall, after
Consultation with the Company, have discretion as to the procedure to be
followed in making such rights available to any Owners or in disposing of such
rights on behalf of any Owners and making the net proceeds available to such
Owners or, if by the terms of such rights offering or for any other reason, the
Depositary may not either make such rights available to any Owners or dispose of
such rights and make the net proceeds available to such Owners, then the
Depositary shall allow the rights to lapse. If at the time of the offering of
any rights the Depositary determines in its discretion, after Consultation with
the Company, that it is lawful and feasible to make such rights available to all
or certain Owners but not to other Owners, the Depositary may distribute to any
Owner to whom it determines the distribution to be lawful and feasible, in
proportion to the number of American Depositary Shares held by such Owner,
warrants or other instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts requests the distribution of warrants or other instruments in
order to exercise the rights allocable to the American Depositary Shares of such
Owner under the Deposit Agreement, the Depositary will make such rights
available to such Owner upon written notice from the Company to the Depositary
that (a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.3 of the
Deposit Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this Article 13, such Receipts
shall be legended in accordance with applicable U.S. laws, and shall be subject
to the appropriate restrictions on sale, deposit, cancellation, and transfer
under such laws.
If the Depositary determines in its discretion that it is not lawful and
feasible to make such rights available to all or certain Owners, it may sell the
rights, warrants or other instruments in proportion to the
A-7
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Article 7 hereof and in Section 5.9 of the Deposit
Agreement and all taxes and governmental charges payable in connection with such
rights and subject to the terms and conditions of the Deposit Agreement) for the
account of such Owners otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to any
distinctions among such Owners because of exchange restrictions or the date of
delivery of any Receipt or otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided that nothing in the
Deposit Agreement shall create, any obligation on the part of the Company to
file a registration statement with respect to such rights or underlying
securities or to endeavor to have such a registration statement declared
effective or to do anything required to enable qualification with any such
exemption. The obligations of the Depositary under Section 5.8 shall survive the
termination of the Deposit Agreement. If an Owner of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency, by
way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any Receipt or otherwise and shall be net of any expenses of
conversion into Dollars incurred by the Depositary as provided in Article 7
hereof and in Section 5.9 of the Deposit Agreement.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary shall file such
application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested
A-8
and without liability for interest thereon for the respective accounts of, the
Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Owners of Receipts who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, or (iii) who shall be responsible
for any fee assessed by the Depositary pursuant to the Deposit Agreement, or (b)
on or after which each American Depositary Share will represent the changed
number of Shares, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary from the Company, (b) a statement
that the Owners of Receipts as of the close of business on a specified record
date will be entitled, subject to any applicable provision of law and of the
Articles of Association of the Company, to instruct the Depositary as to the
exercise of the voting rights, if any, pertaining to the amount of Shares or
other Deposited Securities represented by their respective American Depositary
Shares and (c) a statement as to the manner in which such instructions may be
given. Upon the written request of an Owner of a Receipt on such record date,
received on or before the date established by the Depositary for such purpose,
the Depositary shall endeavor, insofar as practicable, to vote or cause to be
voted the amount of Shares or other Deposited Securities represented by such
American Depositary Shares evidenced by such Receipt in accordance with the
instructions set forth in such request. The Depositary shall not vote or attempt
to exercise the right to vote that attaches to the Shares or other Deposited
Securities, other than in accordance with such instructions.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the preceding paragraph sufficiently prior
to the instruction date to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
If, after complying with the procedures set forth in this Section, the
Depositary does not receive instructions from any Owner with respect to any of
the Deposited Securities represented by the American Depositary Shares evidenced
by such Owner's Receipts on or before the date established by the Depositary for
such purpose, the Depositary shall deem such Owner to have instructed the
Depositary to give a discretionary proxy designated by the Company with respect
to such Designated Securities and the
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Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided, that no such instruction
shall be given with respect to any matter as to which the Issuer informs the
Depositary (and the Company agrees to provide such information as promptly as
practicable in writing) that (x) the Company does not wish such proxy given, (y)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, upon any change in nominal value, change in par value,
split-up, consolidation, or any other reclassification of Deposited Securities,
or upon any recapitalization, reorganization, merger or consolidation, or sale
of assets affecting the Company or to which it is a party, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion of or in respect of Deposited Securities shall be treated as new
Deposited Securities under the Deposit Agreement, and American Depositary Shares
shall thenceforth represent, in addition to the existing Deposited Securities,
the right to receive the new Deposited Securities so received in exchange or
conversion, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may, and shall, if the Company shall
so request, execute and deliver additional Receipts as in the case of a dividend
in Shares, or call for the surrender of outstanding Receipts to be exchanged for
new Receipts specifically describing such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States or any other country,
or of any other governmental or regulatory authority, or by reason of any
provision, present or future, of the Articles of Association of the Company, or
by reason of any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof, or by reason of any act of God
or war or terrorism or other circumstances beyond its control, the Depositary or
the Company shall be prevented, delayed or forbidden from or be subject to any
civil or criminal penalty on account of doing or performing any act or thing
which by the terms of the Deposit Agreement or Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company or
any of their respective directors, employees, agents or affiliates incur any
liability to any Owner or Beneficial Owner of a Receipt by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of the Deposit Agreement it is provided shall or may be
done or performed, or by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.1, 4.2 or 4.3 of the Deposit Agreement, or an
offering or distribution pursuant to Section 4.4 of the Deposit Agreement, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or Beneficial Owners of Receipts, except that they agree to perform
their obligations specifically set forth in the Deposit Agreement without
negligence or bad faith. The Depositary shall not be subject to any liability
with respect to the validity or worth of the Deposited Securities. Neither the
Depositary nor the Company shall be under any obligation to appear in, prosecute
or defend any action, suit, or other proceeding in respect of any Deposited
Securities or in respect of the Receipts, which in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
and liability shall be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the
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responsibility of the Custodian being solely to the Depositary. Neither the
Depositary nor the Company shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or Beneficial Owner of a
Receipt, or any other person believed by it in good faith to be competent to
give such advice or information. The Depositary shall not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast or the effect of any such vote;
provided that any such action or nonaction is in good faith. The Depositary
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in
connection with a matter arising wholly after the removal or resignation of the
Depositary; provided that in connection with the issue out of which such
potential liability arises, the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary. The Company agrees to
indemnify the Depositary, its directors, employees, agents and affiliates and
any Custodian against, and hold each of them harmless from, any liability or
expense (including, but not limited to, the reasonable expenses of counsel)
which may arise out of any registration with the Commission of Receipts,
American Depositary Shares or Deposited Securities or the offer or sale thereof
in the United States or out of acts performed or omitted, in accordance with the
provisions of the Deposit Agreement and of the Receipts, as the same may be
amended, modified, or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates. The Depositary agrees to indemnify the
Company, its directors, employees, agents and affiliates against, and hold each
of them harmless from, any liability or expense, (including, but not limited to,
the reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted by the Depositary or its Custodian or their respective
directors, employees, agents and affiliates due to their negligence or bad
faith. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary hereunder 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 120 days prior written notice of such removal,
to become effective upon the later of (i) the 120th day after delivery of the
notice to the Depositary or (ii) the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit Agreement.
Whenever the Depositary in its discretion determines that it is in the best
interest of the Owners of Receipts to do so, it may appoint a substitute or
additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may at
any time and from time to time be amended by agreement between the Company and
the Depositary without the consent of Owners or Beneficial Owners of Receipts in
any respect which they may deem necessary or desirable. Any amendment which
shall impose or increase any fees or charges (other than taxes and other
governmental charges, registration fees and cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners of Receipts, shall,
however, not become effective as to outstanding Receipts until the expiration of
30 days after notice of such amendment shall have been given to the Owners of
outstanding Receipts. Every Owner of a Receipt at the time any amendment so
becomes effective shall be deemed, by continuing to hold such Receipt, to
consent and agree to such amendment and to be bound by the Deposit Agreement as
amended thereby. In no event shall any amendment impair the right of the Owner
of any Receipt to
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surrender such Receipt and receive therefor the Deposited Securities represented
thereby except in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Depositary, at any time at the direction of the Company, shall
terminate the Deposit Agreement by mailing notice of such termination to the
Owners of all Receipts then outstanding at least 90 days prior to the date fixed
in such notice for such termination. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company and the
Owners of all Receipts then outstanding if at any time 90 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in the Deposit Agreement. On
and after the date of termination, the Owner of a Receipt will, upon (a)
surrender of such Receipt at the Corporate Trust Office of the Depositary, (b)
payment of the fee of the Depositary for the surrender of Receipts referred to
in Section 2.5 of the Deposit Agreement, and (c) payment of any applicable taxes
or governmental charges, be entitled to delivery, to him or upon his order, of
the amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Owners thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights and other property as provided in the
Deposit Agreement, and shall continue to deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, in each case, the fee
of the Depositary for the surrender of a Receipt, any expenses for the account
of the Owner of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental charges). At any
time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Owners of
Receipts which have not theretofore been surrendered, such Owners thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement, except to account for such net proceeds and other
cash (after deducting, in each case, the fee of the Depositary for the surrender
of a Receipt, any expenses for the account of the Owner of such Receipt in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except for its obligations to the Depositary with respect to
indemnification, charges, and expenses.
The obligations of the Depositary under Section 5.8 shall survive the
termination of the Deposit Agreement.
22. ARBITRATION; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
The Deposit Agreement provides that any controversy, claim or cause of
action brought by any party to the Deposit Agreement against the Company arising
out of or relating to the Shares or other Deposited Securities, the American
Depositary Shares, the Receipts or the Deposit Agreement, or the breach thereof,
shall be settled by arbitration in accordance with the International Arbitration
Rules of the American Arbitration Association, and that judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof; provided, however, that in the event of any third-party
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litigation to which the Depositary is a party and to which the Company may
properly be joined, the Company may be so joined in any court in which such
litigation is proceeding; and provided, further, that any such controversy,
claim, cause of action, or other dispute brought by a party to the Deposit
Agreement against the Company relating to or based upon the provisions of the
Federal securities laws of the United States or the rules and regulations
promulgated thereunder may, but need not, be submitted to arbitration as
provided in the Deposit Agreement. The Deposit Agreement further provides that
any controversy, claim or cause of action arising out of or relating to the
Shares or other Deposited Securities, the American Depositary Shares, the
Receipts or the Deposit Agreement not subject to arbitration under the Deposit
Agreement shall be litigated in the Federal and state courts in the Borough of
Manhattan, The City of New York, and the Company hereby submits to the personal
jurisdiction of the court in which such action or proceeding is brought.
In the Deposit Agreement, the Company has (i) appointed CT Corporation, 000
Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, in the State of New York, as the
Company's authorized agent upon which process may be served in any suit or
proceeding arising out of or relating to the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or the Deposit Agreement, (ii)
consented and submitted to the jurisdiction of any state or federal court in the
State of New York in which any such suit or proceeding may be instituted, and
(iii) agreed that service of process upon said authorized agent shall be deemed
in every respect effective service of process upon the Company in any such suit
or proceeding.
To the extent that the Company or any of its properties, assets or revenues
may have or hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution or judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
the Shares or Deposited Securities, the American Depositary Shares, the Receipts
or the Deposit Agreement, the Company, to the fullest extent permitted by law,
hereby irrevocably and unconditionally waives, and agrees not to plead or claim,
any such immunity and consents to such relief and enforcement.
23. DISCLOSURE OF INTERESTS
The Company may from time to time request Owners or former Owners to
provide information (a) as to the capacity in which they own or owned Receipts,
(b) regarding the identity of any other persons then or previously interested in
such Receipts and (c) the nature of such interest and various other matters.
Each Owner agrees to provide any information requested by the Company or the
Depositary pursuant to Section 3.4 of the Deposit Agreement. The Depositary
agrees to use reasonable efforts to comply with written instructions received
from the Company requesting that the Depositary forward any such requests to the
Owners or former Owners and to forward to the Company any responses to such
requests received by the Depositary. The Depositary further agrees that it shall
use its reasonable efforts to cooperate with the Company, to the extent
permitted under applicable law, in enforcing the provisions of the Hong Kong
Securities (Disclosure of Interests) Ordinance and any other legislation or
regulations of Hong Kong from time to time relating to disclosure of interests,
including sanctions that the Company may invoke in the event an Owner fails to
provide certain requested information concerning interests in Receipts or
Deposited Securities. Such sanctions may include limitations on the transfer of
such Deposited Securities.
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An Owner also may have a duty under the Hong Kong Securities (Disclosure of
Interests) Ordinance to notify the Company if such Owner becomes aware that its
interest (which term is broadly defined under such Ordinance) in Deposited
Securities evidenced by Receipts together with any other interests of such Owner
in Deposited Securities is the equivalent of 10% or more of the issued share
capital of the Company. Under the Hong Kong Securities (Disclosure of Interests)
Ordinance, such Owner may be required to further notify the Company in the event
such Owner's interest changes by such percentage as would cross a whole
percentage point or such Owner ceases to have an interest in 10% or more of the
securities of the Company.
24. TAKEOVERS
Each Owner agrees that in relation to the acquisition of beneficial
ownership or control of Shares (including Shares represented by American
Depositary Shares), the Owner shall have regard to and shall comply with the
Code on Takeovers and Mergers issued by the Securities and Futures Commission of
Hong Kong as such code may be amended and supplemented from time to time and
agrees to comply with such other laws, regulations and codes of practice
applicable to the acquisition of beneficial ownership or control of Shares in
Hong Kong whether or not such may be enforceable against such Owner.
25. OWNERSHIP RESTRICTIONS
The Company may restrict, in such manner as it deems appropriate, transfers
of the Shares where such transfer might result in ownership of Shares exceeding
the prescribed limits under applicable law or the Company's Articles of
Association. The Company may also restrict, in such manner as it deems
appropriate, transfers of the American Depositary Shares where such transfer may
result in the total number of Shares represented by the American Depositary
Shares beneficially owned by an Owner or Beneficial Owner exceeding the
prescribed limits under any applicable law or the Company's Articles of
Association. The Company may, in its sole discretion, instruct the Depositary to
take reasonable steps with respect to the ownership interest of any Owner or
Beneficial Owner in excess of the limitation set forth in the preceding
sentence, including but not limited to a mandatory sale or disposition on behalf
of an Owner or Beneficial Owner of the Shares represented by the American
Depositary Shares held by such an Owner or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is reasonably practicable and
permitted by applicable law.
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS........................................................1
SECTION 1.1 American Depositary Shares..................................1
SECTION 1.2 Beneficial Owner............................................1
SECTION 1.3 Commission..................................................1
SECTION 1.4 Company.....................................................2
SECTION 1.5 Consultation................................................2
SECTION 1.6 Custodian...................................................2
SECTION 1.7 Deposit, deliver, execute, issue, register, surrender,
transfer, withdraw or cancel................................2
SECTION 1.8 Deposit Agreement...........................................2
SECTION 1.9 Depositary; Corporate Trust Office..........................2
SECTION 1.10 Deposited Securities........................................2
SECTION 1.11 Dollars; Renminbi...........................................2
SECTION 1.12 Hong Kong...................................................3
SECTION 1.13 Non-U.S. Registrar..........................................3
SECTION 1.14 Owner.......................................................3
SECTION 1.15 Receipts....................................................3
SECTION 1.16 Registrar...................................................3
SECTION 1.17 Restricted Securities.......................................3
SECTION 1.18 Section.....................................................3
SECTION 1.19 Securities Act of 1933......................................3
SECTION 1.20 Shares......................................................3
ARTICLE 2 FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.................................4
SECTION 2.1 Form and Transferability of Receipts........................4
SECTION 2.2 Deposit of Shares...........................................4
SECTION 2.3 Execution and Delivery of Receipts..........................5
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts..5
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares..............6
SECTION 2.6 Limitations on Execution and Delivery, Transfer and
Surrender of Receipts.......................................7
SECTION 2.7 Lost Receipts, etc..........................................7
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts........7
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TABLE OF CONTENTS
(continued)
Page
SECTION 2.9 Pre-Release of Receipts.....................................7
SECTION 2.10 Maintenance of Records......................................8
ARTICLE 3 CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS....9
SECTION 3.1 Filing Proofs, Certificates and Other Information...........9
SECTION 3.2 Liability of Owner or Beneficial Owner for Taxes............9
SECTION 3.3 Warranties on Deposit of Shares.............................9
SECTION 3.4 Disclosure of Interests.....................................9
SECTION 3.5 Takeovers..................................................10
SECTION 3.6 Ownership Restrictions.....................................10
ARTICLE 4 THE DEPOSITED SECURITIES..........................................11
SECTION 4.1 Cash Distributions.........................................11
SECTION 4.2 Distributions Other Than Cash, Shares or Rights............11
SECTION 4.3 Distributions in Shares....................................11
SECTION 4.4 Rights.....................................................12
SECTION 4.5 Conversion of Foreign Currency.............................13
SECTION 4.6 Fixing of Record Date......................................14
SECTION 4.7 Voting of Deposited Securities.............................14
SECTION 4.8 Changes Affecting Deposited Securities.....................15
SECTION 4.9 Reports....................................................15
SECTION 4.10 Lists of Owners............................................15
SECTION 4.11 Withholding................................................15
ARTICLE 5 THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY....................16
SECTION 5.1 Maintenance of Office and Transfer Books by the
Depositary.................................................16
SECTION 5.2 Prevention or Delay in Performance by the Depositary or
the Company................................................16
SECTION 5.3 Obligations of the Depositary, the Custodian and the
Company....................................................17
SECTION 5.4 Resignation and Removal of the Depositary..................17
SECTION 5.5 The Custodians.............................................18
SECTION 5.6 Notices and Reports........................................18
SECTION 5.7 Distribution of Additional Shares, Rights, etc.............19
SECTION 5.8 Indemnification............................................19
SECTION 5.9 Charges of Depositary......................................20
SECTION 5.10 Retention of Depositary Documents..........................21
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TABLE OF CONTENTS
(continued)
Page
SECTION 5.11 Exclusivity................................................21
ARTICLE 6 AMENDMENT AND TERMINATION.........................................21
SECTION 6.1 Amendment..................................................21
SECTION 6.2 Termination................................................22
ARTICLE 7 MISCELLANEOUS.....................................................22
SECTION 7.1 Counterparts...............................................22
SECTION 7.2 No Third Party Beneficiaries...............................23
SECTION 7.3 Severability...............................................23
SECTION 7.4 Owners and Beneficial Owners as Parties; Binding Effect....23
SECTION 7.5 Notices....................................................23
SECTION 7.6 Arbitration; Settlement of Disputes........................23
SECTION 7.7 Submission to Jurisdiction; Appointment of Agent for
Service of Process.........................................24
SECTION 7.8 Waiver of Immunities.......................................25
SECTION 7.9 Governing Law..............................................25
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