AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
Exhibit
(a)(2)
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of
April , 2009 (the "Amendment"), to the Deposit Agreement dated
as of May 10, 1996 (the "Deposit Agreement"), among Guangshen Railway
Company Limited, a corporation organized under the laws of the People's Republic
of China (the "Company"), JPMorgan Chase Bank, N.A. (fka Xxxxxx Guaranty Trust
Company of New York), as depositary (the "Depositary"), and all holders from
time to time of American depositary receipts ("ADRs") issued
thereunder.
W I T N E S S E T H:
WHEREAS,
the Company and the Depositary entered into the Deposit Agreement for the
purposes set forth therein; and
WHEREAS,
pursuant to paragraph (16) of the form of ADR contained in the Deposit
Agreement, the Company and the Depositary desire to amend the terms of the
Deposit Agreement and the ADRs (including, the form of ADR).
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION 1.01. Definitions. Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
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ARTICLE
II
AMENDMENTS TO DEPOSIT
AGREEMENT
SECTION 2.01. All
references in the Deposit Agreement to the term "Deposit Agreement" shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement as
amended by this Amendment.
SECTION 2.02. All
references in the Deposit Agreement to Xxxxxx Guaranty Trust Company of New York
or the Depositary shall be references to JPMorgan Chase Bank, N.A., as
Depositary.
SECTION 2.03. Section 2
of the Deposit Agreement is amended by inserting the following at the conclusion
thereof:
Notwithstanding
anything to the contrary set forth in the Deposit Agreement or any ADRs, ADRs
may be either in physical certificated form or in book entry form through the
direct registration system utilized by the Depositary. References to
"ADRs" shall include certificated ADRs and ADRs the ownership of which is
recorded on the direct registration system ("Direct Registration ADRs"), unless
the context otherwise requires. The direct registration system is 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. The direct registration system
also includes access to the Profile Modification System maintained by DTC which
provides for automated transfer of ownership between DTC and the
Depositary. In this Deposit Agreement and the ADRs, 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 on the books of the Depositary or
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. No manual or facsimile signature of the Depositary shall
be required for a Direct Registration ADR otherwise properly issued by the
Depositary to be valid. 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. 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.
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SECTION 2.04. Section 16
of the Deposit Agreement is amended by inserting the following immediately prior
the last sentence thereof:
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.
SECTION 2.05. The
addresses set forth in Section 17 of the Deposit Agreement are amended to read
as follows:
JPMorgan
Chase Bank, N.A.
Four Xxx
Xxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: ADR
Administration
Fax:
(000) 000-0000
Guangshen
Railway Company Limited
No. 1052
Heping Road, Shenzhen
People’s
Republic of China 518010
Attention: Secretary
to the Board of Directors
Fax: (86)
(000) 0000-0000
ARTICLE
III
AMENDMENTS TO THE FORM OF
ADR
SECTION 3.01. Paragraph
(7) of the form of ADR is amended to read as follows:
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(7)
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Charges of
Depositary. The Depositary may charge, and 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)), , 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) 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) an aggregate
fee of U.S.$0.02 per ADS per calendar year (or portion thereof) for
services performed by the Depositary in administering the ADRs (which fee
may be charged on a periodic basis during each calendar year and shall be
assessed against Holders as of the record date or record dates set by the
Depositary during 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),
provided, however, that if the Depositary imposes a fee under this clause
(iv), then the total of fees assessed under this clause (iv), combined
with the total of fees assessed under clause (i) above, shall not exceed
U.S. $0.02 per ADS in any calendar year, and (v) reimbursement of such
fees, charges and expenses as are incurred by the Depositary and/or any of
the Depositary's agents (including, without limitation, the Custodian and
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 connection with the servicing of the Shares or
other Deposited Securities, the delivery of Deposited Securities or
otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation (which charge shall be
assessed on a proportionate basis 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). 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), 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). Such charges may at
any time and from time to time be changed by agreement between the Company
and the Depositary.
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SECTION 3.02. Paragraph (10)(b)(i) of the
form of ADR is amended to read as follows:
(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 or from a stock split or pursuant to a
merger, exchange of securities or any other transaction or event affecting
the ADSs or the Deposited Securities (any such event defined hereunder as
a "Share Distribution")
SECTION
3.03. Paragraph (14) of the form of ADR is amended by
inserting the following
sentences immediately prior to the last sentence thereof:
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. Neither the Company nor the Depositary nor any of
their respective agents shall be liable to Holders, beneficial owners of
interests in ADSs or any other third parties for any Special
Damages.
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SECTION 3.04. The
form of ADR shall be amended to reflect the amendments set forth herein and any
corresponding and further changes required.
ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES
SECTION 4.01. Representations
and Warranties. (a) The Company represents and
warrants to, and agrees with, the Depositary and the Holders, that:
(i) This
Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(ii) In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, neither
of such agreements need to be filed or recorded with any court or other
authority in the People's Republic of China, nor does any stamp or similar tax
or governmental charge need to be paid in the People's Republic of China on or
in respect of such agreements.
(b) The
Depositary represents and warrants to, and agrees with, the Company, that this
Amendment, when executed and delivered by the Depositary, will be duly and
validly authorized, executed and delivered by the Depositary, and it and the
Deposit Agreement as amended hereby constitute the legal, valid and binding
obligations of the Depositary, enforceable against the Depositary in accordance
with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles.
ARTICLE
V
MISCELLANEOUS
SECTION 5.01. Effective
Date. This Amendment is dated as of the date set forth above
and shall be effective thirty days after notice hereof has been given to the
Holders in the manner required by the Deposit Agreement (the "Effective
Date").
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SECTION 5.02. Outstanding
ADRs. ADRs issued prior or subsequent to the
Effective Date, do not need to be called in for exchange and may
remain outstanding until such time as the Holders thereof choose to surrender
them for any reason under the Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
SECTION
5.03. Indemnification. The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 16 of the Deposit Agreement in connection with any and all
liability it or they may incur as a result of the terms of this Amendment and
the transactions contemplated herein.
SECTION 5.04. Counterparts. This
Amendment may be executed in any number of counterparts, each of which shall be
deemed an original and all of which taken together shall constitute one
instrument.
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IN WITNESS WHEREOF, the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
GUANGSHEN
RAILWAY COMPANY
LIMITED
By:_____________________
Name:
Title:
JPMORGAN
CHASE BANK, N.A.
By:_____________________
Name:
Title:
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