[GRAPHIC OMITTED] WHITE & CASE
================================================================================
Dated January [?], 2010
AMENDED AND RESTATED DEPOSIT AGREEMENT
between
CHINA LIFE INSURANCE COMPANY LIMITED
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Depositary
and
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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White & Case LLP
0 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
TABLE OF CONTENTS
Page
1. CERTAIN DEFINITIONS.......................................................1
2. ADRS......................................................................2
3. DEPOSIT OF SHARES.........................................................3
4. ISSUE OF ADRS.............................................................4
5. DISTRIBUTIONS ON DEPOSITED SECURITIES.....................................4
6. WITHDRAWAL OF DEPOSITED SECURITIES........................................4
7. SUBSTITUTION OF ADRS......................................................4
8. CANCELLATION AND DESTRUCTION OF ADRS......................................5
9. THE CUSTODIAN.............................................................5
10. CO-REGISTRARS AND CO-TRANSFER AGENTS......................................5
11. LISTS OF HOLDERS..........................................................5
12. DEPOSITARY'S AGENTS.......................................................5
13. SUCCESSOR DEPOSITARY......................................................5
14. REPORTS...................................................................6
15. ADDITIONAL SHARES.........................................................6
16. INDEMNIFICATION...........................................................7
17. NOTICES...................................................................8
18. MISCELLANEOUS.............................................................8
19. COMPLIANCE WITH U.S. SECURITIES LAWS......................................8
20. CONSENT TO JURISDICTION...................................................8
21. GOVERNING LAW............................................................10
SCHEDULE 1 ANNEXED TO AND INCORPORATED IN AMENDED AND
RESTATED DEPOSIT AGREEMENT.....................................12
(i)
THIS AGREEMENT is dated as of January [?], 2010
BETWEEN:
(1) CHINA LIFE INSURANCE COMPANY LIMITED and its successors (the "Company"),
(2) DEUTSCHE BANK TRUST COMPANY AMERICAS, 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).
WHEREAS
(A) The Company and JPMorgan Chase Bank (the "Predecessor Depositary") are
parties to a deposit agreement dated as of December 11, 2003, as amended by
amendment number one dated as of December 15, 2006 (the "Original Deposit
Agreement") for the purposes set forth therein;
(B) This amended and restated deposit agreement (the "Amended and Restated
Deposit Agreement") amends the Original 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 Schedule 1 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 fifteen (15) Shares and a pro
rata share in any other Deposited Securities.
(d) "Commission" means the Securities and Exchange Commission of the
United States or any successor governmental agency in the United
States.
(e) "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 Clause 9.
(f) 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.
(g) "Delivery Order" is defined in Clause 3.
(h) "Deposited Securities" as of any time means all Shares at such time
deposited under this Amended and Restated 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.
(i) "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.
(j) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(k) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(l) "Securities Exchange Act of 1934" means the United States Securities
Exchange Act of 1934, as from time to time amended.
(m) "Shares" mean the overseas listed foreign-invested shares in
registered form of the Company, or interim certificates representing
such Shares, and shall include the rights to receive Shares specified
in paragraph (1) of the form of ADR.
(n) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(o) "Withdrawal Order" is defined in Clause 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
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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 Amended and
Restated 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 Amended and
Restated Deposit Agreement and of the form of ADR, regardless of
whether their ADRs are Direct Registration ADRs or certificated ADRs.
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
Amended and Restated 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.
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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 Amended and Restated 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
reasonably practicable with respect to any Holder, the Depositary may make
such distribution as it so deems reasonably 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).
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.
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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 Deutsche Bank Trust
Company Americas) 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 Deutsche Bank Trust Company Americas) 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 Amended and Restated 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.
12. DEPOSITARY'S AGENTS
The Depositary may perform its obligations under this Amended and Restated
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 a 90-day
prior written notice of its election to do so delivered to the Company. The
Depositary may at any time be removed by the Company by a 90-day prior
written notice of such
5
removal. Notwithstanding anything to the contrary contained herein, in case
at any time the Depositary acting hereunder shall resign or be removed, it
shall continue to act as Depositary for the purpose of terminating this
Amended and Restated Deposit Agreement pursuant to paragraph (17) of the
form of ADR. 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 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 by such holders other than at a meeting, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company
shall transmit to the Depositary and the Custodian a copy of the notice
thereof in English but otherwise in the form given or to be given to
holders of Shares or other Deposited Securities. The Company will also
transmit to the Depositary, as required under relevant U.S. Securities laws
(a) English language versions of the other notices, reports and
communications which are made generally available by the Company to holders
of its Shares or other Deposited Securities and (b) English language
versions of the Company's annual and other reports prepared in accordance
with the applicable requirements of the Commission. 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 Amended and Restated Deposit Agreement.
The Depositary will make available a copy of any such notices, reports or
communications issued by the Company and delivered to the Depositary for
inspection by the Holders of the ADRs evidencing the ADSs representing such
Shares governed by such provisions at the Depositary's Corporate Trust
Office, at the office of the Custodian and at any other designated transfer
office.
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 Amended and Restated 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 (i) in order to
facilitate the Company's compliance with securities laws in the United
States, or (ii) for other reasons.
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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 accordance with the provisions of this Amended and
Restated 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 Clause 16, for any liability or expense directly arising
out of the negligence or bad faith of such person, or (ii) by the Company
or any of its directors, employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall 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 Amended and Restated Deposit Agreement to
the extent such loss, liability or expense is due to the negligence or bad
faith of the Depositary and its agents appointed and acting hereunder.
Notwithstanding any other provision of this Amended and Restated 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 to the extent such Special Damages arise from the gross
negligence or willful misconduct of the party from whom indemnification is
sought. Notwithstanding the above, 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, the Depositary will be
entitled to seek indemnity for such Special Damages except to the extent
such Special Damages arise out of the fraud, gross negligence or willful
misconduct of the Depositary.
Any person seeking indemnification hereunder (an "Indemnified Person")
shall notify the person from whom it is seeking indemnification (the
"Indemnifying Person") of the commencement of any indemnifiable action or
claim promptly after such Indemnified Person becomes aware of such
commencement (provided that the failure to make such notification shall not
affect such Indemnified Person's rights to seek indemnification except to
the extent such failure results in the forfeiture of substantive rights or
defenses of the Indemnifying Person) and shall consult in good faith with
the Indemnifying Person as to the conduct of the defense of such action or
7
claim that may give rise to an indemnity hereunder, which defense shall be
reasonable in the circumstances. No Indemnified Person shall compromise or
settle any action or claim that may give rise to an indemnity hereunder
without the consent of the Indemnifying Person; provided, however, that
such consent shall not be unreasonably withheld or delayed.
The obligations set forth in this Clause 16 shall survive the termination
of this Amended and Restated 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) Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ADR Administration
Fax: + 0 000 000 0000
(b) China Life Insurance Company Limited
00 Xxxxxxx Xxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxxx 000000, Xxxxx
Attention: Mr. Yuxi Lan
Fax: : x00 00 0000 0000
18. MISCELLANEOUS
This Amended and Restated 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 Amended and Restated 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 Amended and Restated 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.
19. COMPLIANCE WITH U.S. SECURITIES LAWS
Notwithstanding any other provision of this Amended and Restated Deposit
Agreement, the withdrawal of Deposited Securities may be restricted only
for the reasons set forth in General Instruction I.A.(1) of Form F-6 (as
such instructions may be amended from time to time) under the Securities
Act of 1933.
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20. CONSENT TO JURISDICTION
The Company hereby (i) designates and appoints CT Corporation System, 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the State of New York, as the
Company's authorized agent upon which process may be served in any suit,
action or proceeding arising out of or based upon this Amended and Restated
Deposit Agreement or the transactions contemplated hereby, and (ii) agrees
that the service of process upon said authorized agent shall be deemed in
every respect effective service of process upon the Company in any such
suit, action or proceeding. The Company agrees to deliver, upon the
execution and delivery of this Amended and Restated 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 documents and instruments, that may be necessary to continue
such appointment in full force and effect for so long as any ADSs or ADRs
remain outstanding or this Amended and Restated Deposit Agreement remains
in force. The Company also 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 Amended and Restated Deposit Agreement or
the transactions contemplated hereby, may be instituted in any state or
federal court in New York, New York, and, with respect to any legal suit,
action or proceeding involving the Depositary or its agents, 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 expressly consents to the non-exclusive jurisdiction of any such
court in respect of any such action, and waives any other requirements of
or objections to personal jurisdiction with respect thereto. If, for any
reason, the agent named above or its successor shall no longer serve as
agent of the Company to receive service of process in StateplaceNew 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 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
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irrevocably and unconditionally waives, and agrees not to plead or claim,
any such immunity and consents to such relief and enforcement.
21. GOVERNING LAW
This Amended and Restated Deposit Agreement and the ADRs 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 by the Company, which shall be governed
by the laws of the People's Republic of China.
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IN WITNESS WHEREOF, CHINA LIFE INSURANCE COMPANY LIMITED and DEUTSCHE BANK TRUST
COMPANY AMERICAS have duly executed this Amended and Restated 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.
CHINA LIFE INSURANCE COMPANY LIMITED
By: [?]
Name: [?]
Title: [?]
DEUTSCHE BANK TRUST COMPANY AMERICAS
By: [?]
Name: [?]
Title: Vice President
By: [?]
Name: [?]
Title: Vice President
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SCHEDULE 1
ANNEXED TO AND INCORPORATED IN
AMENDED AND RESTATED DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
Number No. of ADSs:
Each ADS represents
fifteen (15) Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
CLASS H SHARES
of
CHINA LIFE INSURANCE COMPANY LIMITED
(Incorporated under the
laws of The People's Republic of China)
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DEUTSCHE BANK TRUST COMPANY AMERICAS, an indirect wholly owned subsidiary of
Deutsche Bank A.G., as depositary hereunder (the "Depositary"), hereby certifies
that ________ is the registered owner (a "Holder") of ________ American
Depositary Shares ("ADSs"), each (subject to paragraph (13)) representing 15
overseas listed foreign-invested shares, or H shares (including the rights to
receive Shares described in paragraph (1), "Shares" and, together with any other
securities, cash or property from time to time held by the Depositary in respect
or in lieu of deposited Shares, the "Deposited Securities"), of China Life
Insurance Company Limited, a corporation organized under the laws of The
People's Republic of China (the "Company"), deposited under the Amended and
Restated Deposit Agreement dated as of January [?], 2010 (as amended from time
to time, the "Amended and Restated 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 Amended and Restated 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 StateplaceNew York.
1. ISSUANCE OF ADRS
This ADR is one of the ADRs issued under the Amended and Restated Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs for
delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the
Custodian; (b) rights to receive Shares from the Company or any registrar,
transfer agent, clearing agent or other entity recording Share ownership or
transactions; or, (c) other rights to receive Shares (until such Shares are
actually deposited pursuant to (a) or (b) above, "Pre-released ADRs") only
if (i) Pre-released ADRs are fully collateralized (marked to market daily)
with cash or U.S. government securities held by the Depositary for the
benefit of Holders (but such collateral shall not constitute "Deposited
Securities"), (ii) each recipient of Pre-released ADRs agrees in writing
with the Depositary that such recipient (a) owns such Shares, (b) assigns
all beneficial right, title and interest therein to the Depositary, (c)
holds such Shares for the account of the Depositary and (d) will deliver
such Shares to the Custodian as soon as practicable and promptly upon
demand therefor and (iii) all Pre-released ADRs evidence not more than 30%
of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems reasonably 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 Amended and Restated
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 Amended and
13
Restated 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 (i) in order
to facilitate the Company's compliance with such Act, or (ii) for other
reasons.
2. WITHDRAWAL OF DEPOSITED SECURITIES
Subject to paragraphs (4) and (5), upon surrender of (i) a certificated ADR
in form satisfactory to the Depositary at the Transfer Office or (ii)
proper instructions and documentation in the case of a Direct Registration
ADR, the Holder hereof is entitled to delivery at the Custodian's office of
the Deposited Securities at the time represented by the ADSs evidenced by
this ADR. At the request, risk and expense of the Holder hereof, the
Depositary may deliver such Deposited Securities at such other place as may
have been requested by the Holder. Notwithstanding any other provision of
the Amended and Restated 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.
3. TRANSFERS OF ADRS
The Depositary or its agent will keep, at a designated transfer office in
the Borough of Manhattan, The City of New York (the "Transfer Office"), (a)
a register (the "ADR Register") for the registration, registration of
transfer, combination and split-up of ADRs, and, in the case of Direct
Registration ADRs, shall include the Direct Registration System, which at
all reasonable times will be open for inspection by Holders and the Company
for the purpose of communicating with Holders in the interest of the
business of the Company or a matter relating to the Amended and Restated
Deposit Agreement and (b) facilities for the delivery and receipt of ADRs.
The term ADR Register includes the Direct Registration System. Title to
this ADR (and to the Deposited Securities represented by the ADSs evidenced
hereby), when properly endorsed (in the case of ADRs in certificated form)
or upon delivery to the Depositary of proper instruments of transfer, is
transferable by delivery with the same effect as in the case of negotiable
instruments under the laws of the State of New York; provided that the
Depositary, notwithstanding any notice to the contrary, may treat the
person in whose name this ADR is registered on the ADR Register as the
absolute owner hereof for all purposes. Subject to paragraphs (4) and (5),
this ADR is transferable on the ADR Register and may be split into other
ADRs or combined with other ADRs into one ADR, evidencing the same number
of ADSs evidenced by this ADR, by the Holder hereof or by duly authorized
attorney upon surrender of this ADR at the Transfer Office properly
endorsed (in the case of ADRs in certificated form) or upon delivery to the
Depositary of proper instruments of transfer and duly stamped as may be
required by applicable law; provided that the Depositary may close the ADR
Register at any time or from time to time when deemed expedient by it or
requested by the Company. At the request of a Holder, the Depositary shall,
for the purpose of substituting a certificated ADR with a Direct
Registration ADR, or vice versa, execute and deliver a certificated ADR or
a Direct Registration ADR, as the case may be, for any authorized number of
ADSs requested, evidencing the same aggregate number of ADSs as those
evidenced by the certificated ADR or Direct Registration ADR, as the case
may be, substituted.
14
4. CERTAIN LIMITATIONS
Prior to the issue, registration, registration of transfer, split-up or
combination of any ADR, the delivery of any distribution in respect
thereof, or, subject to the last sentence of paragraph (2), the withdrawal
of any Deposited Securities, and from time to time in the case of clause
(b)(ii) of this paragraph (4), the Company, the Depositary or the Custodian
may require: (a) payment with respect thereto of (i) any stock transfer or
other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or
other Deposited Securities upon any applicable register and (iii) any
applicable charges as provided in paragraph (7) of this ADR; (b) the
production of proof satisfactory to it of (i) the identity and genuineness
of any signature and (ii) such other information, including without
limitation, information as to citizenship, residence, exchange control
approval, beneficial ownership of any securities, compliance with
applicable law, regulations, provisions of or governing Deposited
Securities and terms of the Amended and Restated 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 Amended and
Restated Deposit Agreement. The issuance of ADRs, the acceptance of
deposits of Shares, the registration, registration of transfer, split-up or
combination of ADRs or, subject to the last sentence of paragraph (2), the
withdrawal of Deposited Securities may be suspended, generally or in
particular instances, when the ADR Register or any register for Deposited
Securities is closed or when any such action is deemed advisable by the
Depositary or the Company.
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
15
Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders
entitled thereto.
6. DISCLOSURE OF INTERESTS; LIMITATION ON OWNERSHIP
To the extent that the provisions of or governing any Deposited Securities
may require disclosure of or impose limits on beneficial or other ownership
of Deposited Securities, other Shares and other securities and may provide
for blocking transfer, voting or other rights to enforce such disclosure or
limits, Holders and all persons holding ADRs agree to comply with all such
disclosure requirements and ownership limitations and to cooperate with the
Depositary in the Depositary's compliance with any Company instructions in
respect thereof.
Holders and holders of interests in ADSs will be subject to the provisions
of the Hong Kong Securities and Futures Ordinance (the "Ordinance") and any
other regulations of placeHong Kong relating to disclosure of interests in
Shares. For the purpose of this paragraph, "interest" shall have the
meaning set forth in the Ordinance. Under the Ordinance, a Holder or holder
of an interest in ADSs will have a duty to notify the Company and The Stock
Exchange of Hong Kong Limited if such Holder or holder becomes aware that
its interest in Shares (including its interest in Shares represented by
ADSs and/or any deemed or attributable interests specified in the Ordinance
(including but not limited to equity derivatives)) equals or exceeds 5% of
long positions in the outstanding share capital of the Company. If a Holder
or holder of an interest in ADSs has long positions which in the aggregate
equal to or exceed 5% of the outstanding share capital of the Company, then
it is required to notify the Company and The Stock Exchange of Hong Kong
Limited if its aggregate short positions equal to or exceed 1% of the
outstanding share capital of the Company. Such Holder or holder of an
interest in ADSs may be required to further notify the Company and The
Stock Exchange of Hong Kong Limited of certain changes in such Holder or
beneficial owner's interest in the Shares after the first notification.
Under the Ordinance, the Company may make inquiries if the Company knows or
has reasonable cause to believe that a Holder or holder of an interest in
ADSs has any interest in Shares (including its interest in Shares
represented by ADSs and/or any deemed or attributable interests specified
in the Ordinance (including but not limited to equity derivatives)) or has
a short position in Shares or ADSs. The Depositary agrees that it shall use
reasonable efforts to comply with written instructions received from the
Company requesting that the Depositary forward any such requests for
information relating to such interest in Shares or ADSs to such Holder and
to forward to the Company any responses to such requests received by the
Depositary provided that nothing herein shall be interpreted as obligating
the Depositary to provide or obtain any such information not provided to
the Depositary by such Holder. No Holder may individually or with its
nominees or other persons acting in concert beneficially own more than 10%
of the outstanding share capital of the Company without the prior approval
of the China Insurance Regulatory Commission.
7. CHARGES OF DEPOSITARY
The Depositary may charge each person to whom ADSs are issued against
deposits of Shares, including deposits in respect of Share Distributions,
Rights and Other Distributions (as such terms are defined in paragraph
(10)), and each person surrendering ADSs for withdrawal of Deposited
Securities, U.S.$5.00 for each
16
100 ADSs (or portion thereof) delivered or surrendered. The Depositary may
sell (by public or private sale) sufficient securities and property
received in respect of Share Distributions, Rights and Other Distributions
prior to such deposit to pay such charge. The following additional charges
shall be incurred by the Holders, by any party depositing or withdrawing
Shares or by any party surrendering ADRs or to whom ADRs are issued
(including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
ADRs or the Deposited Securities or a distribution of ADRs pursuant to
paragraph (10)), whichever is applicable (i) a fee of U.S.$0.02 or less per
ADS (or portion thereof) for any Cash distribution made pursuant to the
Amended and Restated Deposit Agreement, (ii) to the extent not prohibited
by the rules of any stock exchange or interdealer quotation system upon
which the ADSs are traded, a fee of U.S.$1.50 per ADR or ADRs for transfers
made pursuant to paragraph (3) hereof, (iii) a fee for the distribution of
securities pursuant to paragraph (10) hereof, such fee being in an amount
equal to the fee for the execution and delivery of ADSs referred to above
which would have been charged as a result of the deposit of such securities
(for purposes of this paragraph (7) treating all such securities as if they
were Shares) but which securities or the net cash proceeds from the sale
thereof are instead distributed by the Depositary to Holders entitled
thereto, or (iv) such fees and expenses as are incurred by the Depositary
(including without limitation expenses incurred on behalf of Holders in
connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its
Custodian's compliance with applicable law, rule or regulation. The Company
will pay all other charges and expenses of the Depositary and any agent of
the Depositary (except the Custodian) pursuant to agreements from time to
time between the Company and the Depositary, except (i) stock transfer or
other taxes and other governmental charges (which are payable by Holders or
persons depositing Shares), (ii) cable, telex and facsimile transmission
and delivery charges incurred at the request of persons depositing, or
Holders delivering Shares, ADRs or Deposited Securities (which are payable
by such persons or Holders), (iii) transfer or registration fees for the
registration of transfer of Deposited Securities on any applicable register
in connection with the deposit or withdrawal of Deposited Securities (which
are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of the Amended and Restated Deposit Agreement), and (iv) expenses of the
Depositary in connection with the conversion of foreign currency into U.S.
dollars (which are paid out of such foreign currency). These charges may be
changed in the manner indicated in paragraph (16).
8. AVAILABLE INFORMATION
The Amended and Restated 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
17
United States Securities and Exchange Commission (the "Commission"). Such
reports and other information may be inspected and copied at public
reference facilities maintained by the Commission located at the date
hereof at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
9. EXECUTION
This ADR shall not be valid for any purpose unless executed by the
Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Depositary
By:
Name:
Title:
The Depositary's office is located at 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
[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
18
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 placecountry-regionUnited 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.
11. RECORD DATES
The Depositary may, after consultation with the Company if practicable, fix
a record date (which shall be as near as practicable to any corresponding
record date set by the Company) for the determination of the Holders who
shall be entitled to receive any distribution on or in respect of Deposited
Securities, to give instructions for the exercise of any voting rights, to
receive any notice or to act in respect of other matters and only such
Holders shall be so entitled.
12. VOTING OF DEPOSITED SECURITIES
As soon as practicable after receipt from the Company of notice of any
meeting or solicitation of consents or proxies of holders of Shares or
other Deposited Securities, the Depositary shall distribute to Holders a
notice stating (a) such information as is contained in such notice and any
solicitation materials, (b) that each Holder on the record date set by the
Depositary therefor, subject to any applicable provision of Hong Kong or
People's Republic of China law, will be entitled to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by the ADSs evidenced by such Holder's
ADRs and (c) the manner in which such instructions may be given, including
instructions to give a discretionary proxy to a person designated by the
Company. Upon receipt of instructions of a Holder on such record date in
the manner and on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor insofar as practicable and permitted
under the provisions of or governing Deposited Securities to vote or cause
to be voted the Deposited Securities represented by the ADSs evidenced by
such Holder's ADRs in accordance with such instructions. The Depositary
will not itself exercise any voting discretion in respect of any Deposited
Securities.
19
13. CHANGES AFFECTING DEPOSITED SECURITIES
Subject to paragraphs (4) and (5), the Depositary may, in its discretion,
amend this ADR or distribute additional or amended ADRs (with or without
calling this ADR for exchange) or cash, securities or property on the
record date set by the Depositary therefor to reflect any change in par
value, split-up, consolidation, cancellation or other reclassification of
Deposited Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is
hereby authorized to surrender any Deposited Securities to any person and
to sell by public or private sale any property received in connection with)
any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of
the Company, and to the extent the Depositary does not so amend this ADR or
make a distribution to Holders to reflect any of the foregoing, or the net
proceeds thereof, whatever cash, securities or property results from any of
the foregoing shall constitute Deposited Securities and each ADS evidenced
by this ADR shall automatically represent its pro rata interest in the
Deposited Securities as then constituted.
14. EXONERATION
The Depositary, the Company, their agents and each of them shall: (a) incur
no liability (i) if any present or future law, regulation of the United
States, Hong Kong, the People's Republic of China or any other country, or
of any governmental or regulatory authority or stock exchange, the
provisions of or governing any Deposited Securities, act of God, war or
other circumstance beyond its control shall prevent, delay or subject to
any civil or criminal penalty any act which the Amended and Restated
Deposit Agreement or this ADR provides shall be done or performed by it, or
(ii) by reason of any exercise or failure to exercise any discretion given
it in the Amended and Restated 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 Amended and Restated 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
20
forth in the Amended and Restated 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 Amended and Restated 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 a 90-day written notice of its
election to do so delivered to the Company, or be removed as Depositary by
the Company by a 90-day prior written notice of such removal delivered to
the Depositary. The Depositary may appoint substitute or additional
Custodians and the term "Custodian" refers to each Custodian or all
Custodians as the context requires.
16. AMENDMENT
Subject to the last sentence of paragraph (2), the ADRs and the Amended and
Restated Deposit Agreement may be amended by written agreement between the
Company and the Depositary, without consent of the Holders, 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 Amended and Restated 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 Amended
and Restated Deposit Agreement as amended thereby. In no event shall any
amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order
to comply with mandatory provisions of applicable law. Any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company
and the Depositary) in order for (a) the ADSs to be registered on Form F-6
under the Securities Act of 1933 or (b) the ADSs or Shares to be traded
solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be
deemed not to prejudice any substantial rights of Holders. Notwithstanding
the foregoing, if any governmental body should adopt new laws, rules or
regulations which would require amendment or supplement of the Amended and
Restated Deposit Agreement or the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the
Amended and Restated Deposit Agreement and the ADR at any time in
accordance with such changed rules. Such amendment or supplement to the
Amended and Restated Deposit Agreement in such circumstances may become
21
effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance.
17. TERMINATION
Upon the resignation or removal of the Depositary pursuant to the Amended
and Restated Deposit Agreement, the Depositary shall, at the written
direction of the Company, terminate the Amended and Restated Deposit
Agreement and this ADR by mailing notice of such termination to the Holders
at least 30 days prior to the date fixed in such notice for such
termination. After the date so fixed for termination, the Depositary and
its agents will perform no further acts under the Amended and Restated
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 Amended and Restated 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 Amended and Restated 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 Amended and Restated Deposit Agreement except for its obligations to
the Depositary and its agents.
