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PERFECT WORLD CO., LTD.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of July , 2007
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TABLE OF CONTENTS
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Page
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PARTIES .................................................................. 1
RECITALS .................................................................. 1
Section 1. Certain Definitions
(a) ADR Register ................................................... 1
(b) ADRs; Direct Registration ADRs ................................ 1
(c) ADS ........................................................... 1
(d) Custodian ..................................................... 1
(e) Deliver, execute, issue et al. ................................ 1
(f) Delivery Order ................................................ 1
(g) Deposited Securities .......................................... 1
(h) Direct Registration System .................................... 2
(i) Holder ........................................................ 2
(j) Securities Act of 1933 ........................................ 2
(k) Securities Exchange Act of 1934 ............................... 2
(l) Shares ........................................................ 2
(m) Transfer Office ............................................... 2
(n) Withdrawal Order .............................................. 2
Section 2. ADRs ........................................................... 2
Section 3. Deposit of Shares .............................................. 3
Section 4. Issue of ADRs .................................................. 3
Section 5. Distributions on Deposited Securities........................... 3
Section 6. Withdrawal of Deposited Securities ............................ 4
Section 7. Substitution of ADRs .......................................... 4
Section 8. Cancellation and Destruction of ADRs .......................... 4
Section 9. The Custodian ................................................. 4
Section 10. Co-Registrars and Co-Transfer Agents ........................... 4
Section 11. Lists of Holders. .............................................. 5
Section 12. Depositary's Agents ........................................... 5
Section 13. Successor Depositary .......................................... 5
Section 14. Reports ....................................................... 6
Section 15. Additional Shares ............................................. 6
Section 16. Indemnification ............................................... 6
Section 17. Notices ....................................................... 7
Section 18. Miscellaneous ................................................. 8
Section 19. Consent to Jurisdiction ....................................... 8
TESTIMONIUM ................................................................ 9
SIGNATURES ................................................................ 9
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EXHIBIT A
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FORM OF FACE OF ADR A-1
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Introductory Paragraph A-1
(1) Issuance of ADRs A-2
(2) Withdrawal of Deposited Securities A-2
(3) Transfers of ADRs A-3
(4) Certain Limitations A-3
(5) Taxes A-4
(6) Disclosure of Interests A-5
(7) Charges of Depositary A-5
(8) Available Information A-6
(9) Execution A-7
Signature of Depositary A-7
Address of Depositary's Office A-7
FORM OF REVERSE OF ADR A-8
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(10) Distributions on Deposited Securities A-8
(11) Record Dates A-9
(12) Voting of Deposited Securities A-9
(13) Changes Affecting Deposited Securities . A-9
(14) Exoneration A-10
(15) Resignation and Removal of Depositary; the Custodian A-11
(16) Amendment A-11
(17) Termination A-12
(18) Appointment A-12
DEPOSIT AGREEMENT dated as of July , 2007 (the "Deposit Agreement") among
PERFECT WORLD CO., LTD. and its successors (the "Company"), 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). 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 five Shares 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
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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 class B 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.
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(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.
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 Depositary, the Custodian or a nominee of either 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 Depositary, the Custodian or a nominee of either, 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
3
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.
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 AG,
Hong Kong Branch) 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
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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 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 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
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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.
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
its agents acting hereunder, 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
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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 or its agents
acting hereunder.
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
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) Deutsche Bank Trust Company Americas
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Depositary Receipts Department
Fax: (000) 000-0000
(b) Perfect World Co., Ltd.
0xx Xxxxx, Xxx Xxxx Xxxxxxxx
#0 Xxxxxxx Xxxx Xxxx
Haidian District, Beijing
People's Republic of China
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Attention:
Fax:
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.
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 CT Corporation System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000, 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
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action based on this Agreement may be instituted by the Depositary or any Holder
in any competent court in the Cayman Islands, The People's Republic of China
(including the Hong Kong Special Administrative Region, 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.
IN WITNESS WHEREOF, PERFECT WORLD CO., LTD. and DEUTSCHE BANK TRUST COMPANY
AMERICAS 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.
PERFECT WORLD CO., LTD.
By:
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Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
------------------------------
Name:
Title:
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
No. of ADSs: Number
Each ADS represents five Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
CLASS B ORDINARY SHARES
of
PERFECT WORLD CO., LTD.
(Incorporated under the laws of the Cayman Islands)
DEUTSCHE BANK TRUST COMPANY AMERICAS, 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 five class B ordinary 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 Perfect World Co., Ltd., a corporation organized under the laws
of the Cayman Islands (the "Company"), deposited under the Deposit Agreement
dated as of July , 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) unless otherwise instructed by the Company on no less than five days prior
written notice, 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
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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.
(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
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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.
(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.
A-4
(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.
(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) an aggregate fee
of U.S.$0.02 per ADS per calendar year 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
A-5
Holders of ADRs 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), 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.
(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.
A-6
(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:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Depositary
By
Authorized Officer
The Depositary's office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-7
[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
A-8
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.
(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
A-9
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, rule or
regulation of the United States, the Cayman Islands, The People's Republic of
China (including the Hong Kong Special Administrative Region, the People's
Republic of China) 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
A-10
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.
(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
A-11
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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