LDK SOLAR CO., LTD. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS Deposit Agreement Dated as of [DATE] , 2007
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Dated
as
of [DATE] , 2007
TABLE
OF CONTENTS
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PARTIES
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1
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RECITALS
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1
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Section
1.
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Certain
Definitions
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(a)
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ADR
Register
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1
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(b)
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ADRs;
Direct Registration ADRs
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1
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(c)
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ADS
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1
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(d)
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Custodian
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1
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(e)
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Deliver,
execute, issue et al.
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1
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(f)
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Delivery
Order
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1
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(g)
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Deposited
Securities
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1
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(h)
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Direct
Registration System
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1
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(i)
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Holder
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1
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(j)
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Securities
Act of 1933
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1
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(k)
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Securities
Exchange Act of 1934
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1
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(l)
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Shares
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1
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(m)
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Transfer
Office
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1
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(n)
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Withdrawal
Order
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1
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Section
2.
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ADRs
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2
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|
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Section
3.
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Deposit
of Shares
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2
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Section
4.
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Issue
of ADRs
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2
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Section
5.
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Distributions
on Deposited Securities
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3
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|
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Section
6.
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Withdrawal
of Deposited Securities
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3
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Section
7.
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Substitution
of ADRs
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4
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Section
8.
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Cancellation
and Destruction of ADRs
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4
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Section
9.
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The
Custodian
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4
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|
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Section
10.
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Co-Registrars
and Co-Transfer Agents
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4
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Section
11.
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Lists
of Holders.
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4
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|
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Section
12.
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Depositary's
Agents
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5
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|
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Section
13.
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Successor
Depositary
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5
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Section
14.
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Reports
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5
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Section
15.
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Additional
Shares
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5
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Section
16.
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Indemnification
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5
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Section
17.
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Notices
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6
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Section
18.
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Miscellaneous
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6
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Section
19.
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Consent
to Jurisdiction
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6
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TESTIMONIUM
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7
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SIGNATURES
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7
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||
i
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FORM
OF FACE OF ADR
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A-1
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Introductory
Paragraph
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A-1
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(1)
Issuance
of ADRs
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A-2
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(2)
Withdrawal
of Deposited Securities
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A-2
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(3)Transfers
of ADRs
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A-2
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(4)
Certain
Limitations
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A-3
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(5)
Taxes
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A-4
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(6)Disclosure
of Interests
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A-4
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(7)
Charges
of Depositary
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A-4
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(8)
Available
Information
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A-5
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(9)
Execution
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's Office
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A-6
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FORM
OF REVERSE OF ADR
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A-7
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(10)Distributions
on Deposited Securities
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A-7
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(11)
Record
Dates
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A-8
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(12)
Voting
of Deposited Securities
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A-8
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(13)
Changes
Affecting Deposited Securities
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A-8
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(14)
Exoneration
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A-8
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(15)
Resignation
and Removal of Depositary; the Custodian
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A-9
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(16)
Amendment
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A-9
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(17)Termination
|
A-10
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(18)Appointment
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A-10
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||
ii
DEPOSIT
AGREEMENT dated as of [DATE] , 2007 (the "Deposit Agreement") among LDK
SOLAR
CO., LTD. and its successors (the "Company"), JPMORGAN CHASE BANK, N.A.,
as
depositary hereunder (the "Depositary"), and all holders from time to time
of
American Depositary
Receipts issued hereunder ("ADRs") evidencing American Depositary Shares
("ADSs") representing
deposited Shares (defined below). The Company hereby appoints the Depositary
as
depositary
for the Deposited Securities and hereby authorizes and directs the Depositary
to
act in accordance
with the terms set forth in this Deposit Agreement. All capitalized terms used
herein have
the
meanings ascribed to them in Section 1 or elsewhere in this Deposit Agreement.
The parties
hereto agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder.
ADRs may be either in physical certificated form or Direct Registration ADRs.
ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs (as
hereinafter defined), shall be substantially in the form of Exhibit A annexed
hereto (the "form
of
ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded
on the Direct Registration System. References to "ADRs" shall include
certificated ADRs and
Direct Registration ADRs, unless the context otherwise requires. The form of
ADR
is hereby incorporated
herein and made a part hereof; the provisions of the form of ADR shall be
binding upon
the
parties hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents
the right to receive one Share and a pro rata share in any other Deposited
Securities.
(d) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as the
context requires) and any additional or substitute Custodian appointed pursuant
to Section 9.
(e) The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry or
entries or an
electronic transfer or transfers in the Direct Registration System, and, when
used with respect to ADRs
in
physical certificated form, shall refer to the physical delivery, execution,
issuance, registration,
surrender, transfer or cancellation of certificates representing the
ADRs.
(f) "Delivery
Order"
is
defined in Section 3.
(g) "Deposited
Securities"
as of
any time means all Shares at such time deposited under
this Deposit Agreement and any and all other Shares, securities, property and
cash at such time
held
by the Depositary or the Custodian in respect or in lieu of such deposited
Shares and other
Shares, securities, property and cash.
(h) "Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by the Depositary pursuant to which the Depositary may record the
ownership of ADRs without the issuance
of a certificate, which ownership shall be evidenced by periodic statements
issued by the Depositary
to the Holders entitled thereto. For purposes hereof, the Direct Registration
System shall
include access to the Profile Modification System maintained by DTC which
provides for automated
transfer of ownership between DTC and the Depositary.
(i) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(j) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(k) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
(l) "Shares"mean
the
ordinary shares of the Company, and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at the discretion of the Depositary in accordance with its customary practices
in its American
depositary receipt business, or at the request of the Company typewritten and
photocopied
on plain or safety paper, and shall be substantially in the form set forth
in
the form of ADR,
with
such changes as may be required by the Depositary or the Company to comply
with
their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations
or restrictions to which any particular ADRs are subject. ADRs may be issued
in
denominations
of any number of ADSs. ADRs in certificated form shall be executed by the
Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary. ADRs
in
certificated form bearing the facsimile signature of anyone who was at the
time
of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that
such
officer has ceased to hold such office prior to the delivery of such
ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the
form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs,
unless certificated
ADRs are specifically requested by the Holder.
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the
form
of ADR, regardless of whether their ADRs are Direct Registration ADRs or
certificated ADRs.
2
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the
Depositary to issue to, or upon the written order of, the person or persons
designated in such order
a
Direct Registration ADR or ADRs evidencing the number of ADSs representing
such
deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer
in respect of such deposited Shares; (c) instruments assigning to the Custodian
or its nominee
any distribution on or in respect of such deposited Shares or indemnity
therefor; and (d) proxies
entitling the Custodian to vote such deposited Shares. As soon as practicable
after the Custodian
receives Deposited Securities pursuant to any such deposit or pursuant to
paragraph (10) or
(13)
of the form of ADR, the Custodian shall present such Deposited Securities for
registration of
transfer into the name of the Custodian or its nominee, to the extent such
registration is practicable,
at the cost and expense of the person making such deposit (or for whose benefit
such deposit
is made) and shall obtain evidence satisfactory to it of such registration.
Deposited Securities
shall be held by the Custodian for the account and to the order of the
Depositary at such place
or
places and in such manner as the Depositary shall determine. Deposited
Securities may be delivered
by the Custodian to any person only under the circumstances expressly
contemplated in this
Deposit Agreement. To the extent that the provisions of or governing the Shares
make delivery of
certificates therefor impracticable, Shares may be deposited hereunder by such
delivery thereof as
the
Depositary or the Custodian may reasonably accept, including, without
limitation, by causing
them to be credited to an account maintained by the Custodian for such purpose
with the Company
or an accredited intermediary, such as a bank, acting as a registrar for the
Shares, together
with delivery of the documents, payments and Delivery Order referred to herein
to the Custodian
or the Depositary.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary
of such deposit and of the information contained in any related Delivery Order
by letter, first
class airmail postage prepaid, or, at the request, risk and expense of the
person making the deposit,
by cable, telex or facsimile transmission. After receiving such notice from
the
Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon
the
order of any person named in such notice, an ADR or ADRs registered as requested
and evidencing
the aggregate ADSs to which such person is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its
discretion that any distribution pursuant to paragraph (10) of the form of
ADR
is not practicable with
respect to any Holder, the Depositary may make such distribution as it so deems
practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing
the right to receive foreign currency, securities or property) or the retention
thereof as Deposited
Securities with respect to such Holder's ADRs (without liability for interest
thereon or the
investment thereof).
3
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal
of the Deposited Securities represented by the ADSs evidenced thereby, the
Depositary may
require proper endorsement in blank of such ADR (or duly executed instruments
of
transfer thereof
in blank) and the Holder's written order directing the Depositary to cause
the
Deposited Securities represented by the ADSs evidenced by such ADR to be
withdrawn and delivered to, or upon
the
written order of, any person designated in such order (a "Withdrawal Order").
Directions from
the
Depositary to the Custodian to deliver Deposited Securities shall be given
by
letter, first class
airmail postage prepaid, or, at the request, risk and expense of the Holder,
by
cable, telex or facsimile
transmission. Delivery of Deposited Securities may be made by the delivery
of
certificates
(which, if required by law shall be properly endorsed or accompanied by properly
executed
instruments of transfer or, if such certificates may be registered, registered
in the name of such
Holder or as ordered by such Holder in any Withdrawal Order) or by such other
means as the Depositary
may deem practicable, including, without limitation, by transfer of record
ownership thereof
to an account designated in the Withdrawal Order maintained either by the
Company or an accredited
intermediary, such as a bank, acting as a registrar for the Deposited
Securities.
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration
ADR in exchange and substitution for any mutilated certificated ADR upon
cancellation
thereof or in lieu of and in substitution for such destroyed, lost or stolen
certificated ADR,
unless the Depositary has notice that such ADR has been acquired by a bona
fide
purchaser, upon
the
Holder thereof filing with the Depositary a request for such execution and
delivery and a sufficient
indemnity bond and satisfying any other reasonable requirements imposed by
the
Depositary.
8.
Cancellation
and Destruction of ADRs.
All
ADRs surrendered to the Depositary shall be
cancelled by the Depositary. The Depositary is authorized to destroy ADRs in
certificated form so
cancelled in accordance with its customary practices.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary may from time
to time appoint one
or
more agents to act for it as Custodian hereunder. Each Custodian so appointed
(other than JPMorgan
Chase Bank, N.A.) shall give written notice to the Company and the Depositary
accepting
such appointment and agreeing to be bound by the applicable terms hereof. Any
Custodian
may resign from its duties hereunder by at least 30 days written notice to
the
Depositary. The
Depositary may discharge any Custodian at any time upon notice to the Custodian
being discharged.
Any Custodian ceasing to act hereunder as Custodian shall deliver, upon the
instruction
of the Depositary, all Deposited Securities held by it to a Custodian continuing
to act.
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars
to register ADRs and transfers, combinations and split-ups of ADRs and to
countersign
ADRs in accordance with the terms of any such appointment and (ii) co-transfer
agents for
the
purpose of effecting transfers, combinations and split-ups of ADRs at designated
transfer offices
in addition to the Transfer Office on behalf of the Depositary. Each
co-registrar or co-transfer
agent (other than JPMorgan Chase Bank, N.A.) shall give notice in writing to
the
Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable
terms of this Deposit Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and its agents and the ADR Register, take copies thereof and require the
Depositary and its
agents to supply copies of such portions of such records as the Company may
request. The Depositary or its agent shall furnish to the Company promptly
upon
the written request of the Company,
a list of the names, addresses and holdings of ADSs by all Holders as of a
date
within seven
days of the Depositary's receipt of such request.
4
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify
the
Company
of such appointment and shall remain responsible for the performance of such
obligations
as if no agent were appointed.
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder
by written notice of its election so to do delivered to the Company, 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 providing
no less than 90 days prior written notice of such removal to the Depositary,
such removal to
take
effect the later of (i) the 90th
day
after such notice of removal is first provided and (ii) the appointment
of a successor depositary and its acceptance of such appointment as hereinafter
provided.
Notwithstanding the foregoing, if upon the resignation or removal of the
Depositary a successor
depositary is not appointed within the applicable 45-day period (in the case
of
resignation)
or 90-day period (in the case of removal) as specified in paragraph (17) of
the
form of ADR,
then
the Depositary may elect to terminate this Deposit Agreement and the ADR and
the
provisions
of said paragraph (17) shall thereafter govern the Depositary’s
obligations hereunder. 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
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. The predecessor
depositary, only upon payment of all sums due to it and on the written request
of the Company,
shall (i) execute and deliver an instrument transferring to such successor
all
rights and powers
of
such predecessor hereunder (other than its rights to indemnification and fees
owing, each of
which
shall survive any such removal and/or resignation), (ii) duly assign,
transfer and deliver all
right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor
a list of the Holders of all outstanding ADRs. Any such successor depositary
shall promptly
mail notice of its appointment to such Holders. Any bank or trust company into
or with which
the
Depositary may be merged or consolidated, or to which the Depositary shall
transfer substantially
all its American depositary receipt business, shall be the successor of the
Depositary without
the execution or filing of any document or any further act.
14.
Reports.
On or
before the first date on which the Company makes any communication available
to holders of Deposited Securities or any securities regulatory authority or
stock exchange,
by publication or otherwise, the Company shall transmit to the Depositary a
copy
thereof in
English or with an English translation or summary. The Company has delivered
to
the Depositary,
the Custodian and any Transfer Office, a copy of all provisions of or governing
the Shares
and any other Deposited Securities issued by the Company or any affiliate of
the
Company and,
promptly upon any change thereto, the Company shall deliver to the Depositary,
the Custodian and
any
Transfer Office, a copy (in English or with an English translation) of such
provisions as so changed. The Depositary and its agents may rely upon the
Company's delivery thereof for all purposes
of this Deposit Agreement.
5
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or
under
common control with the Company shall issue additional Shares, rights to
subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities
or shall deposit any Shares under this Deposit Agreement, except under
circumstances complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable efforts
to comply with written instructions of the Company not to accept for deposit
hereunder any Shares
identified in such instructions at such times and under such circumstances
as
may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with securities
laws in the United States.
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary
and its agents against any loss, liability or expense (including reasonable
fees
and expenses
of counsel) which may arise out of acts performed or omitted, in connection
with
the provisions
of this Deposit Agreement and of the ADRs, as the same may be amended, modified
or supplemented
from time to time in accordance herewith (i) by either the Depositary or its
agents or their
respective directors, employees, agents and affiliates, except, subject to
the
penultimate paragraph
of this Section 16, for any liability or expense directly arising out of the
negligence or bad
faith
of the Depositary, or (ii) by the Company or any of its directors, employees,
agents or affiliates.
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense
which may arise out of any misstatement or alleged misstatement or omission
or
alleged omission
in any registration statement, proxy statement, prospectus (or placement
memorandum), or
preliminary prospectus (or preliminary placement memorandum) relating to the
offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the Depositary
or its agents (other than the Company), as applicable, furnished in writing
by
the Depositary
and not changed or altered by the Company expressly for use in any of the
foregoing documents
or (ii) if such information is provided, the failure to state a material fact
necessary to make
the
information provided not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend
and save harmless the Company against any loss, liability or expense (including
reasonable fees
and
expenses of counsel) incurred by the Company in respect of this Deposit
Agreement to the extent
such loss, liability or expense is due to the negligence or bad faith of the
Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the form of ADR to the
contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other
for
any indirect, special, punitive or consequential damages (collectively "Special
Damages") except
(i) to the extent such Special Damages arise from the gross negligence or
willful misconduct
of the party from whom indemnification is sought or (ii) to the extent Special
Damages arise
from or out of a claim brought by a third party (including, without limitation,
Holders) against the
Depositary or its agents, except to the extent such Special Damages arise out
of
the gross negligence
or willful misconduct of the party seeking indemnification
hereunder.
6
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement
and the succession or substitution of any indemnified person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice
to
the Depositary or the Company shall be deemed given when first received by
it at
the address
or facsimile transmission number set forth in (a) or (b), respectively, or
at
such other address
or facsimile transmission number as either may specify to the other by written
notice:
(a)
JPMorgan
Chase Bank, N.A.
Four
Xxx
Xxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
ADR Administration
Fax:
(000) 000-0000
Xx-Xxxx Xxxxxxxxxx Xxxx
Xxxxx
Xxxx, Xxxxxxx Xxxxxxxx 000000
People's
Republic of China
Attention:
[CONTACT PERSON]
Fax:
[FACSIMILE]
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall
not give any legal or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners of ADRs
from
time to time shall be parties to this Deposit Agreement and shall be bound
by
all of the provisions
hereof. If any such provision is invalid, illegal or unenforceable in any
respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may
be
executed
in any number of counterparts, each of which shall be deemed an original and
all
of which
shall constitute one instrument.
7
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding
against the Company brought by the Depositary or any Holder, arising out of
or
based upon
this
Deposit Agreement or the transactions contemplated hereby, may be instituted
in
any state
or
federal court in New York, New York, and irrevocably waives any objection which
it may now
or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
also irrevocably
agrees that any legal suit, action or proceeding against the Depositary brought
by the Company,
arising out of or based upon this Deposit Agreement or the transactions
contemplated hereby,
may only be instituted in a state or federal court in New York, New York. The
Company has
appointed _________________________, New York, New York, as its authorized
agent
(the "Authorized
Agent") upon which process may be served in any such action arising out of
or
based on
this
Deposit Agreement or the transactions contemplated hereby which may be
instituted in any state
or
federal court in New York, New York by the Depositary or any Holder, and waives
any other
requirements of or objections to personal jurisdiction with respect thereto.
The
Company represents
and warrants that the Authorized Agent has agreed to act as said agent for
service of process, and the Company agrees to take any and all action, including
the filing of any and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect
as
aforesaid. Service of process upon the Authorized Agent and written notice
of
such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company.
If, for any reason, the Authorized Agent named above or its successor shall
no
longer serve
as
agent of the Company to receive service of process in New York, the Company
shall promptly
appoint a successor acceptable to the Depositary, so as to serve and will
promptly advise the
Depositary thereof. In the event the Company fails to continue such designation
and appointment
in full force and effect, the Company hereby waives personal service of process
upon it
and
consents that any such service of process may be made by certified or registered
mail, return receipt
requested, directed to the Company at its address last specified for notices
hereunder, and service
so made shall be deemed completed five (5) days after the same shall have been
so mailed. Notwithstanding
the foregoing, any action based on this Agreement may be instituted by the
Depositary
or any Holder in any competent court in the Cayman Islands or the People's
Republic of China.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may hereafter
be entitled to, or have attributed to it, any right of immunity, on the grounds
of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of
any
relief in any
respect thereof, from setoff or counterclaim, from the jurisdiction of any
court, from service of process,
from attachment upon or prior to judgment, from attachment in aid of execution
or judgment,
or from execution of judgment, or other legal process or proceeding for the
giving of any relief
or
for the enforcement of any judgment, in any jurisdiction in which proceedings
may at any time
be
commenced, with respect to its obligations, liabilities or other matter under
or
arising out of
or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or this
Agreement,
the Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief
and enforcement.
8
IN
WITNESS WHEREOF, LDK SOLAR CO., LTD. and JPMORGAN CHASE
BANK, N.A. have duly executed this Deposit Agreement as of the day and year
first above
set
forth and all holders of ADRs shall become parties hereto upon acceptance by
them of ADRs
issued in accordance with the terms hereof.
By:
_____________________
Name:
Title:
JPMORGAN
CHASE BANK, N.A.
By:
______________________
Name:
Title:
Vice President
9
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
____ No.
of ADSs:
Number
___________
Each
ADS
represents
One
Share
CUSIP:
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
(Incorporated
under the laws of the Cayman Islands)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under
the
laws of the United States of America , as depositary hereunder (the
"Depositary"), hereby certifies
that
is the
registered owner (a "Holder") of
American
Depositary Shares ("ADSs"),
each (subject to paragraph (13)) representing one ordinary share (including
the
rights to receive
Shares described in paragraph (1), "Shares" and, together with any other
securities, cash or property
from time to time held by the Depositary in respect or in lieu of deposited
Shares, the "Deposited
Securities"), of LDK Solar Co., Ltd., a corporation organized under the laws
of
the Cayman
Islands (the "Company"), deposited under the Deposit Agreement dated as of
[DATE] , 2007
(as
amended from time to time, the "Deposit Agreement") among the Company, the
Depositary
and all Holders from time to time of American Depositary Receipts issued
thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and
this
ADR (which includes the provisions set forth on the reverse hereof) shall be
governed by and
construed in accordance with the laws of the State of New York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement. Subject
to paragraph (4), the Depositary may so issue ADRs for delivery at the Transfer
Office (defined in paragraph (3)) only against deposit with the Custodian of:
(a) Shares in form satisfactory
to the Custodian; (b) rights to receive Shares from the Company or any
registrar, transfer
agent, clearing agent or other entity recording Share ownership or transactions;
or, (c) other
rights to receive Shares (until such Shares are actually deposited pursuant
to
(a) or (b) above, "Pre-released
ADRs") only if (i) Pre-released ADRs are fully collateralized (marked to market
daily)
with cash, government securities or such other collateral as the Depositary
deems appropriate
held by the Depositary for the benefit of Holders (but such collateral shall
not
constitute
"Deposited Securities"), (ii) each recipient of Pre-released ADRs represents
and
agrees in
writing with the Depositary that such recipient or its customer (a) beneficially
owns such Shares, (b)
assigns all beneficial right, title and interest therein to the Depositary,
(c)
holds such Shares for the
account of the Depositary and (d) will deliver such Shares to the Custodian
as
soon as practicable
and promptly upon demand therefor and (iii) all Pre-released ADRs evidence
not
more than
30%
of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however,
that
the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate.
The Depositary may retain for its own account any earnings on collateral for
Pre-released
ADRs and its charges for issuance thereof. At the request, risk and expense
of
the person
depositing Shares, the Depositary may accept deposits for forwarding to the
Custodian and may
deliver ADRs at a place other than its office. Every person depositing Shares
under the Deposit
Agreement represents and warrants that such Shares are validly issued and
outstanding, fully
paid, nonassessable and free of pre-emptive rights, that the person making
such
deposit is duly
authorized so to do and that such Shares (A) are not "restricted securities"
as
such term is defined
in Rule 144 under the Securities Act of 1933 unless at the time of deposit
they
may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold
freely in the
United States or (B) have been registered under the Securities Act of 1933.
Such
representations
and warranties shall survive the deposit of Shares and issuance of ADRs. The
Depositary
will not knowingly accept for deposit under the Deposit Agreement any Shares
required to
be
registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to
accept
for such deposit any Shares identified by the Company in order to facilitate
the
Company's
compliance with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of
(i) a
certificated ADR in form satisfactory to the Depositary at the Transfer Office
or (ii) proper instructions
and documentation in the case of a Direct Registration ADR, the Holder hereof
is
entitled
to delivery at, or to the extent in dematerialized form from, the Custodian's
office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk
and
expense of the Holder hereof, the Depositary may deliver such Deposited
Securities at such
other place as may have been requested by the Holder. Notwithstanding any other
provision of
the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only
for
the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be
amended from time to time) under the Securities Act of 1933.
A-2
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of
transfer, combination and split-up of ADRs, and, in the case of Direct
Registration ADRs, shall include the Direct Registration System, which at all
reasonable times will be open for inspection by Holders
and the Company for the purpose of communicating with Holders in the interest
of
the business
of the Company or a matter relating to the Deposit Agreement and (b) facilities
for the delivery
and receipt of ADRs. The term ADR Register includes the Direct Registration
System. Title
to
this ADR (and to the Deposited Securities represented by the ADSs evidenced
hereby), when
properly endorsed (in the case of ADRs in certificated form) or upon delivery
to
the Depositary
of proper instruments of transfer, is transferable by delivery with the same
effect as in the
case
of negotiable instruments under the laws of the State of New York; provided
that the
Depositary,
notwithstanding any notice to the contrary, may treat the person in whose name
this ADR
is
registered on the ADR Register as the absolute owner hereof for all purposes
and
neither the
Depositary nor the Company will have any obligation or be subject to any
liability under the Deposit
Agreement to any holder of an ADR, unless such holder is the Holder thereof.
Subject to paragraphs
(4) and (5), this ADR is transferable on the ADR Register and may be split
into
other ADRs
or
combined with other ADRs into one ADR, evidencing the aggregate number of ADSs
surrendered
for split-up or combination, by the Holder hereof or by duly authorized attorney
upon surrender
of this ADR at the Transfer Office properly endorsed (in the case of ADRs in
certificated form)
or
upon delivery to the Depositary of proper instruments of transfer and duly
stamped as may
be
required by applicable law; provided
that the
Depositary may close the ADR Register at any
time
or from time to time when deemed expedient by it or requested by the Company.
At
the request
of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct
Registration ADR, or vice versa, execute and deliver a certificated ADR or
a
Direct Registration
ADR, as the case may be, for any authorized number of ADSs requested, evidencing
the
same
aggregate number of ADSs as those evidenced by the certificated ADR or Direct
Registration
ADR, as the case may be, substituted.
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of any ADR, the delivery of any distribution in respect thereof, or, subject
to
the last sentence
of paragraph (2), the withdrawal of any Deposited Securities, and from time
to
time in the case
of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require:
(a) payment with respect thereto of (i) any stock transfer or other tax or
other
governmental
charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers
of Shares or other Deposited Securities upon any applicable register and (iii)
any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory
to it of (i) the identity of any signatory and genuineness of any signature
and
(ii) such other
information, including without limitation, information as to citizenship,
residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and
this
ADR, as it may deem necessary or proper; and (c) compliance with such
regulations as the Depositary
may establish consistent with the Deposit Agreement. The issuance of ADRs,
the
acceptance
of deposits of Shares, the registration, registration of transfer, split-up
or
combination of
ADRs
or, subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may
be
suspended, generally or in particular instances, when the ADR Register or any
register for Deposited
Securities is closed or when any such action is deemed advisable by the
Depositary.
A-3
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf
of
the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by
the
ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall
be
paid by the Holder hereof to the Depositary. The Depositary may refuse to effect
any registration,
registration of transfer, split-up or combination hereof or, subject to the
last
sentence of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary
may also deduct from any distributions on or in respect of Deposited Securities,
or may sell
by
public or private sale for the account of the Holder hereof any part or all
of
such Deposited Securities
(after attempting by reasonable means to notify the Holder hereof prior to
such
sale), and may
apply
such deduction or the proceeds of any such sale in payment of such tax or other
governmental
charge, the Holder hereof remaining liable for any deficiency, and shall reduce
the number
of
ADSs evidenced hereby to reflect any such sales of Shares. In connection with
any distribution
to Holders, the Company will remit to the appropriate governmental authority
or
agency
all amounts (if any) required to be withheld and owing to such authority or
agency by the Company;
and the Depositary and the Custodian will remit to the appropriate governmental
authority
or agency all amounts (if any) required to be withheld and owing to such
authority or agency
by
the Depositary or the Custodian. If the Depositary determines that any
distribution in property
other than cash (including Shares or rights) on Deposited Securities is subject
to any tax that
the
Depositary or the Custodian is obligated to withhold, the Depositary may dispose
of all or a
portion
of such property in such amounts and in such manner as the Depositary deems
necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net
proceeds of any such sale or the balance of any such property after deduction
of
such taxes to the
Holders entitled thereto. Each Holder of an ADR or an interest therein agrees
to
indemnify the Depositary,
the Company, the Custodian and any of their respective directors, employees,
agents and
affiliates against, and hold each of them harmless from, any claims by any
governmental authority
with respect to taxes, additions to tax, penalties or interest arising out
of
any refund of taxes,
reduced rate of withholding at source or other tax benefit
obtained.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited Securities
may require disclosure of or impose limits on beneficial or other ownership
of
Deposited Securities,
other Shares and other securities and may provide for blocking transfer, voting
or other rights
to
enforce such disclosure or limits, Holders and all persons holding ADRs agree
to
comply with
all
such disclosure requirements and ownership limitations and to comply with any
reasonable Company
instructions in respect thereof. The Company reserves the right to instruct
Holders to deliver
their ADSs for cancellation and withdrawal of the Deposited Securities so as
to
permit the Company
to deal directly with the Holder thereof as a holder of Shares and Holders
agree
to comply
with such instructions. The Depositary agrees to cooperate with the Company
in
its efforts
to inform Holders of the Company's exercise of its rights under this paragraph
and agrees to consult
with, and provide reasonable assistance without risk, liability or expense
on
the part of the Depositary,
to the Company on the manner or manners in which it may enforce such rights
with
respect
to any Holder.
A-4
(7)
Charges
of Depositary.
The
Depositary may collect from (i) each person to whom ADSs
are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph
(10)), issuances pursuant to a stock dividend or stock split declared by
the Company, or issuances
pursuant to a merger, exchange of securities or any other transaction or
event affecting the ADSs or the Deposited Securities, and (ii) each person
surrendering ADSs for withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each
100
ADSs (or portion thereof) issued, delivered, reduced, cancelled or
surrendered (as the case
may
be). The Depositary may sell (by public or private sale) sufficient securities
and property received
in respect of Share Distributions, Rights and Other Distributions prior to
such
deposit to pay
such
charge. The following additional charges shall be incurred by the Holders,
by
any party depositing
or withdrawing Shares or by any party surrendering ADSs, to whom ADSs are issued
(including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company
or an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution of
ADSs
pursuant to paragraph (10)), whichever is applicable (i) a fee of U.S.$0.02
or
less per ADS
(or
portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement, (ii) to the
extent not prohibited by the rules of the primary stock exchange upon which
the
ADSs are listed,
a
fee of U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph (3)
hereof, (iii)
a
fee for the distribution or sale of securities pursuant to paragraph (10)
hereof, such fee being in
an
amount equal to the fee for the execution and delivery of ADSs referred to
above
which would
have been charged as a result of the deposit of such securities (for purposes
of
this paragraph
(7) treating all such securities as if they were Shares) but which securities
or
the net cash proceeds
from the sale thereof are instead distributed by the Depositary to Holders
entitled thereto, (iv)
a
fee of U.S.$0.02 per ADS (or portion thereof) in each calendar year for the
services performed
by the Depositary in administering the ADRs (which fee shall be assessed against
Holders
as of the record date or dates set by the Depositary not more than once each
calendar year and
shall
be payable at the sole discretion of the Depositary by billing such Holders
or
by deducting
such charge from one or more cash dividends or other cash distributions), and
(v) such fees
and
expenses as are incurred by the Depositary (including without limitation
expenses incurred
on behalf of Holders in connection with compliance with foreign exchange control
regulations
or any law or regulation relating to foreign investment) in delivery of
Deposited Securities
or otherwise in connection with the Depositary's or its Custodian's compliance
with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary
and any agent of the Depositary (except the Custodian) pursuant to agreements
from time
to
time between the Company and the Depositary, except (i) stock transfer or other
taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable,
telex and facsimile transmission and delivery charges incurred at the request
of
persons depositing,
or Holders delivering Shares, ADRs or Deposited Securities (which are payable
by
such
persons or Holders), (iii) transfer or registration fees for the registration
or
transfer of Deposited
Securities on any applicable register in connection with the deposit or
withdrawal of Deposited
Securities (which are payable by persons depositing Shares or Holders
withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement),
(iv) expenses of the Depositary in connection with the conversion of foreign
currency into
U.S.
dollars (which are paid out of such foreign currency), and (v) any other charge
payable by any
of
the Depositary, any of the Depositary’s
agents,
including, without limitation, the Custodian, or
the
agents of the Depositary’s agents in connection with the servicing of the Shares
or other Deposited
Securities (which charge shall be assessed against Holders as of the record
date
or dates set
by
the Depositary and shall be payable at the sole discretion of the Depositary
by
billing such Holders
or by deducting such charge from one or more cash dividends or other cash
distributions). Such
charges may at any time and from time to time be changed by agreement between
the Company
and the Depositary.
A-5
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both
received by
the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to
the
holders of Deposited Securities, are available for inspection by Holders at
the
offices of the Depositary
and the Custodian and at the Transfer Office. The Depositary will distribute
copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange
Act of 1934 and accordingly files certain reports with the United States
Securities and Exchange
Commission (the "Commission"). Such reports and other information may be
inspected and
copied at public reference facilities maintained by the Commission located
at
the date hereof at 000
X
Xxxxxx, XX, Xxxxxxxxxx, XX 00000.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A., as Depositary
By
.................................................. Authorized
Officer
The
Depositary's office is located at 0 Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000.
A-6
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent practicable,
the Depositary will distribute to each Holder entitled thereto on the record
date set by the
Depositary therefor at such Holder's address shown on the ADR Register, in
proportion to the number
of
Deposited Securities (on which the following distributions on Deposited
Securities are received
by the Custodian) represented by ADSs evidenced by such Holder's ADRs: (a)
Cash.
Any
U.S.
dollars available to the Depositary resulting from a cash dividend or other
cash
distribution
or the net proceeds of sales of any other distribution or portion thereof
authorized in this
paragraph (10) ("Cash"), on an averaged or other practicable basis, subject
to
(i) appropriate adjustments
for taxes withheld, (ii) such distribution being impermissible or impracticable
with respect
to certain Holders, and (iii) deduction of the Depositary's expenses in (1)
converting any foreign
currency to U.S. dollars by sale or in such other manner as the Depositary
may
determine to the
extent that it determines that such conversion may be made on a reasonable
basis, (2) transferring
foreign currency or U.S. dollars to the United States by such means as the
Depositary may
determine to the extent that it determines that such transfer may be made on
a
reasonable basis,
(3) obtaining any approval or license of any governmental authority required
for
such conversion
or transfer, which is obtainable at a reasonable cost and within a reasonable
time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares available to
the
Depositary
resulting from a dividend or free distribution on Deposited Securities
consisting of Shares
(a
"Share Distribution") and (ii) U.S. dollars available to it resulting from
the
net proceeds of
sales
of Shares received in a Share Distribution, which Shares would give rise to
fractional ADSs
if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i)
Warrants or other
instruments in the discretion of the Depositary representing rights to acquire
additional ADRs in
respect of any rights to subscribe for additional Shares or rights of any nature
available to the Depositary
as a result of a distribution on Deposited Securities ("Rights"), to the extent
that the Company
timely furnishes to the Depositary evidence satisfactory to the Depositary
that
the Depositary
may lawfully distribute the same (the Company has no obligation to so furnish
such evidence),
or (ii) to the extent the Company does not so furnish such evidence and sales
of
Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights
as
in the case of Cash, or (iii) to the extent the Company does not so furnish
such
evidence and
such
sales cannot practicably be accomplished by reason of the nontransferability
of
the Rights,
limited markets therefor, their short duration or otherwise, nothing (and any
Rights may lapse).
(d) Other
Distributions.
(i)
Securities or property available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions and
Rights ("Other Distributions"),
by any means that the Depositary may deem equitable and practicable, or (ii)
to
the extent
the Depositary deems distribution of such securities or property not to be
equitable and practicable,
any U.S. dollars available to the Depositary from the net proceeds of sales
of
Other Distributions
as in the case of Cash. Such U.S. dollars available will be distributed by
checks drawn
on
a bank in the United States for whole dollars and cents. Fractional cents will
be withheld without
liability and dealt with by the Depositary in accordance with its then current
practices.
A-7
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable,
fix a record date (which, to the extent applicable, shall be as near as
practicable to any corresponding
record date set by the Company) for the determination of the Holders who shall
be responsible
for the fee assessed by the Depositary for administration of the ADR program
and
for any expenses provided for in paragraph (7) hereof as well as for the
determination of the Holders who
shall
be entitled to receive any distribution on or in respect of Deposited
Securities, to give instructions
for the exercise of any voting rights, to receive any notice or to act in
respect of other matters
and only such Holders shall be so entitled or obligated.
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders
of
Shares or other
Deposited Securities, the Depositary shall distribute to Holders a notice
stating (a) such information
as is contained in such notice and any solicitation materials, (b) that each
Holder on the
record date set by the Depositary therefor will, subject to any applicable
provisions of Cayman Island
law, be entitled to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining
to the Deposited Securities represented by the ADSs evidenced by such Holder's
ADRs and
(c)
the manner in which such instructions may be given, including instructions
to
give a discretionary
proxy to a person designated by the Company. Upon receipt of instructions of
a
Holder
on
such record date in the manner and on or before the date established by the
Depositary for
such
purpose, the Depositary shall endeavor insofar as practicable and permitted
under the provisions
of or governing Deposited Securities to vote or cause to be voted the Deposited
Securities
represented by the ADSs evidenced by such Holder's ADRs in accordance with
such
instructions.
The Depositary will not itself exercise any voting discretion in respect of
any
Deposited
Securities. There is no guarantee that Holders generally or any Holder in
particular will receive
the notice described above with sufficient time to enable such Holder to return
any voting instructions
to the Depositary in a timely manner.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended
ADRs
(with or
without calling this ADR for exchange) or cash, securities or property on the
record date set by the
Depositary therefor to reflect any change in par value, split-up, consolidation,
cancellation or other
reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed
to Holders or any cash, securities or property available to the Depositary
in
respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities
to any person and, irrespective of whether such Deposited Securities are
surrendered or otherwise
cancelled by operation of law, rule, regulation or otherwise, to sell by public
or private sale
any
property received in connection with) any recapitalization, reorganization,
merger, consolidation,
liquidation, receivership, bankruptcy or sale of all or substantially all the
assets of the
Company, and to the extent the Depositary does not so amend this ADR or make
a
distribution to
Holders to reflect any of the foregoing, or the net proceeds thereof, whatever
cash, securities or property
results from any of the foregoing shall constitute Deposited Securities and
each
ADS evidenced
by this ADR shall automatically represent its pro rata interest in the Deposited
Securities as
then
constituted.
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(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur
no
liability (i) if any present or future law, rule or regulation of the United
States, the People's
Republic of China, the Cayman Islands or any other country, or of any
governmental or regulatory
authority or any securities exchange or market or automated quotation system,
the provisions
of or governing any Deposited Securities, any present or future provision of
the
Company's
charter, any act of God, war, terrorism or other circumstance beyond its control
shall prevent,
delay or subject to any civil or criminal penalty
any act which the Deposit Agreement or this ADR provides shall be done or
performed by
it or
them (including, without limitation, voting pursuant
to paragraph (12) hereof), or (ii) by reason of any exercise or failure to
exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability except
to
perform its
obligations to the extent they are specifically set forth in this ADR and the
Deposit Agreement without
gross negligence or bad faith; (c) in the case of the Depositary and its agents,
be under no obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited
Securities or this ADR; (d) in the case of the Company and its agents hereunder
be under
no
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of
any
Deposited Securities or this ADR, which in its opinion may involve it in expense
or liability,
unless indemnity satisfactory to it against all expense (including fees and
disbursements of
counsel) and liability be furnished as often as may be required; or (e) not
be
liable for any action or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person
presenting Shares for deposit, any Holder, or any other person believed by
it to
be competent
to give such advice or information. The Depositary, its agents and the Company
may rely
and
shall be protected in acting upon any written notice, request, direction or
other document believed
by them to be genuine and to have been signed or presented by the proper party
or parties. The
Depositary and its agents will not be responsible for any failure to carry
out
any instructions to vote
any
of the Deposited Securities, for the manner in which any such vote is cast
or
for the effect of
any
such vote. The Depositary and its agents may own and deal in any class of
securities of the Company
and its affiliates and in ADRs. Notwithstanding anything to the contrary set
forth in the Deposit
Agreement or an ADR, the Depositary and its agents may fully respond to any
and
all demands
or requests for information maintained by or on its behalf in connection with
the Deposit Agreement,
any Holder or Holders, any ADR or ADRs or otherwise related hereto to the extent
such
information is requested or required by or pursuant to any lawful authority,
including without limitation
laws, rules, regulations, administrative or judicial process, banking,
securities or other regulators.
The Company has agreed to indemnify the Depositary and its agents under certain
circumstances
and the Depositary has agreed to indemnify the Company under certain
circumstances.
Neither the Company nor the Depositary nor any of their respective agents shall
be liable
to
Holders or beneficial owners of interests in ADSs for any indirect, special,
punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any
provision hereof.
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as Depositary
by written notice of its election so to do delivered to the Company, such
resignation to take
effect upon the appointment of a successor depositary and its acceptance of
such appointment as
provided in the Deposit Agreement. The Depositary may at any time be
removed by the Company
by no less than 90 days prior written notice of such removal, to become
effective upon the
later
of (i) the 90th day after delivery of the notice to the Depositary and (ii)
the
appointment of a
successor depositary and its acceptance of such appointment as provided in
the
Deposit Agreement.
The Depositary may appoint substitute or additional Custodians and the term
"Custodian"
refers
to each Custodian or all Custodians as the context requires.
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(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement
may be amended by the Company and the Depositary, provided
that any
amendment that
imposes or increases any fees or charges (other than stock transfer or other
taxes and other governmental
charges, transfer or registration fees, cable, telex or facsimile transmission
costs, delivery
costs or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given
to
the Holders. Every Holder of an ADR at the time any amendment to the Deposit
Agreement
so becomes effective shall be deemed, by continuing to hold such ADR, to consent
and agree
to
such amendment and to be bound by the Deposit Agreement as amended thereby.
In
no event
shall any amendment impair the right of the Holder of any ADR to surrender
such
ADR and receive
the Deposited Securities represented thereby, except in order to comply with
mandatory provisions
of applicable law. Any amendments or supplements which (i) are reasonably
necessary (as
agreed by the Company and the Depositary) in order for (a) the ADSs to be
registered on Form F-6
under
the Securities Act of 1933 or (b) the ADSs or Shares to be traded solely in
electronic book-entry
form and (ii) do not in either such case impose or increase any fees or charges
to be borne
by
Holders, shall be deemed not to prejudice any substantial rights of Holders.
Notwithstanding
the foregoing, if any governmental body or regulatory body should adopt new
laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement
or the form of ADR to ensure compliance therewith, the Company and the
Depositary may
amend
or supplement the Deposit Agreement and the ADR at any time in accordance with
such
changed laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement
in such circumstances may become effective before a notice of such amendment
or
supplement
is given to Holders or within any other period of time as required for
compliance.
(17)
Termination.
The
Depositary may, and shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders
at least 30 days prior to the date fixed in such notice for such termination;
provided, however,
if the Depositary shall have (i) resigned as Depositary hereunder, notice of
such termination
by the Depositary shall not be provided to Holders unless a successor depositary
shall not
be
operating hereunder within 45 days of the date of such resignation, and (ii)
been removed as Depositary
hereunder, notice of such termination by the Depositary shall not be provided
to
Holders
unless a successor depositary shall not be operating hereunder on the
90th
day
after the Company's
notice of removal was first provided to the Depositary. After the date so fixed
for termination,
the Depositary and its agents will perform no further acts under the Deposit
Agreement
and this ADR, except to receive and hold (or sell) distributions on Deposited
Securities and
deliver Deposited Securities being withdrawn. As soon as practicable after
the
expiration of six
months from the date so fixed for termination, the Depositary shall sell the
Deposited Securities and
shall
thereafter (as long as it may lawfully do so) hold in a segregated account
the
net proceeds of
such
sales, together with any other cash then held by it under the Deposit Agreement,
without liability
for interest, in trust for the pro rata
benefit
of the Holders of ADRs not theretofore surrendered.
After making such sale, the Depositary shall be discharged from all obligations
in respect
of the Deposit Agreement and this ADR, except to account for such net proceeds
and other cash.
After the date so fixed for termination, the Company shall be discharged from
all obligations under
the
Deposit Agreement except for its obligations to the Depositary and its
agents.
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and
conditions
of the Deposit Agreement shall be deemed for all purposes to (a) be a party
to
and bound
by
the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint
the Depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and
to
take any and all
actions contemplated in the Deposit Agreement and the applicable ADR(s), to
adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry
out
the purposes of the Deposit Agreement
and the applicable ADR(s), the taking of such actions to be the conclusive
determinant of
the
necessity and appropriateness thereof.
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