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PCCW LIMITED
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
OUTSTANDING UNDER THE TERMS OF THE
AMENDED AND RESTATED DEPOSIT AGREEMENT,
DATED AS OF AUGUST 7, 2000
--------------------------------------
Amendment No. 1
to
Amended and Restated Deposit Agreement
--------------------------------------
Dated as of ___________, 2007
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ARTICLE I
DEFINITIONS....................................................................4
SECTION 1.01 Definitions................................................4
SECTION 1.02 Effective Date.............................................4
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT................................................4
SECTION 2.01 Deposit Agreement..........................................4
SECTION 2.02 Amendments Binding on all Holders and Beneficial Owners....5
SECTION 2.03 Deregistration of Securities...............................5
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................6
SECTION 3.01 ADR Amendment..............................................6
SECTION 3.02 Deregistration of Securities...............................7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES.................................................8
SECTION 4.01 Representations and Warranties.............................8
ARTICLE V
MISCELLANEOUS..................................................................9
SECTION 5.01 New ADRs...................................................9
SECTION 5.02 Indemnification............................................9
SECTION 5.03 Ratification..............................................10
SECTION 5.04 Governing Law.............................................10
SECTION 5.05 Counterparts..............................................10
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO AMENDED AND RESTATED DEPOSIT AGREEMENT dated as
of ______, 2007, (the "Amendment"), by and among PCCW Limited, a company
incorporated and existing under the laws of Hong Kong, SAR (the "Company"),
Citibank, N.A., a national banking association organized under the laws of the
United States of America (the "Depositary"), and all Holders and Beneficial
Owners from time to time of American Depositary Shares evidenced by American
Depositary Receipts outstanding under the Amended and Restated Deposit
Agreement, dated as of August 7, 2000.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain
Amended and Restated Deposit Agreement, dated as of August 7, 2000 (the "Amended
and Restated Deposit Agreement"), for the creation of American Depositary Shares
representing the Shares (as defined in the Amended and Restated Deposit
Agreement) so deposited and for the execution and delivery of American
Depositary Receipts ("ADRs") in respect of the American Depositary Shares; and
WHEREAS, the Company has filed a Form 15F with the U.S. Securities
and Exchange Commission ("SEC") in order to seek to terminate the registration
of its securities under the United States Securities and Exchange Act of 1934,
as amended ("Exchange Act"), and its obligations to file with the SEC, or submit
to the SEC, reports under Sections 13(a) and 15(d) of the Exchange Act.
3
WHEREAS, the Company desires to (x) amend the Amended and Restated
Deposit Agreement, the ADRs currently outstanding and the form of ADR annexed to
the Amended and Restated Deposit Agreement to reflect such change, and (y) to
give notice thereof to all Holders (as defined in the Deposit Agreement) of
ADSs; and
WHEREAS, pursuant to Section 6.1 of the Amended and Restated Deposit
Agreement, the Company and the Depositary deem it necessary and desirable to
amend the Amended and Restated Deposit Agreement, the ADRs currently outstanding
and the form of ADR annexed to the Amended and Restated Deposit Agreement as
Exhibit A for the purposes set forth herein;
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 Amended and Restated Deposit Agreement, the ADRs
currently outstanding and the form of ADR annexed as Exhibit A to the Amended
and Restated Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless otherwise specified in this
Amendment, all capitalized terms used, but not defined, herein shall have the
meanings given to such terms in the Amended and Restated Deposit Agreement.
SECTION 1.02 Effective Date. The term "Effective Date" shall mean
the date set forth above and as of which this Amendment shall become effective.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01 Deposit Agreement. All references in the Amended and
Restated Deposit Agreement to the terms "Deposit Agreement" shall, as of the
Effective Date, refer to the Amended and Restated Deposit Agreement, dated as of
August 7, 2000 as amended by this Amendment and as further amended and
supplemented after the Effective Date.
4
SECTION 2.02 Amendments Binding on all Holders and Beneficial
Owners. From and after the Effective Date, the amendments to the Amended and
Restated Deposit Agreement effected hereby shall be binding on all Holders and
Beneficial Owners of ADSs issued and outstanding as of the Effective Date and on
all Holders and Beneficial Owners of ADSs issued after the Effective Date.
SECTION 2.03 Deregistration of Securities. To reflect the
termination of the Company's registration of its securities under the Exchange
Act, the Amended and Restated Deposit Agreement is hereby amended as of the
Effective Date by deleting Section 4.12 in its entirety and inserting the
following in its stead:
"Section 4.12 Available Information. The Company has been subject to the
periodic reporting requirements of the Exchange Act, and has filed with
the SEC, and submitted to the SEC, certain reports that can be retrieved
from the SEC's Internet website at xxx.xxx.xxx, and can be inspected and
copied at the public reference facilities maintained by the SEC at 000 X
Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000. The Company has filed a Form 15F
("Form 15F") with the SEC, which has suspended the Company's duty under
the Exchange Act to file or submit the reports required under Sections
13(a) or 15(d) of the Exchange Act. Upon the effectiveness of Form 15F,
the Company's duty to file or submit reports under Sections 13(a) or 15(d)
of the Exchange Act will terminate and the Company will, pursuant to Rule
12g3-2(e)(1), receive the exemption from the reporting obligations of the
Exchange Act provided by Rule 12g3-2(b). In order to satisfy the
conditions of Rule 12g3-2(b), the Company intends to publish the
5
information contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act
in English on its Internet website or through an electronic information
delivery system generally available to the public in the Company's primary
trading market. The Company has specified in Form 15F the Internet website
or the electronic information delivery system on which it intends to
publish such information. The information so published by the Company
cannot be retrieved from the SEC's Internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
SEC. If the Form 15F is not declared effective, the Company will again be
subject to the periodic reporting requirements of the Exchange Act and
will be required to file with the SEC, and submit to the SEC, certain
reports that can be retrieved from the SEC's Internet website at
xxx.xxx.xxx, and can be inspected and copied at the public reference
facilities maintained by the SEC. The Company's Internet Website as of the
date of the Amendment No. 1 to the Amended and Restated Deposit Agreement
is xxx.xxxx.xxx."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01 ADR Amendment. The first sentence of paragraph (1) of
the form of ADR attached as Exhibit A to the Amended and Restated Deposit
Agreement and in each of the ADRs issued and outstanding under the terms of the
Amended and Restated Deposit Agreement is hereby amended as of the Effective
Date by deleting such sentence in its entirety and inserting the following in
its stead:
"This American Depositary Receipt is one of an issue (herein called
the Receipts), all issued and to be issued upon the terms and conditions set
forth in the Amended and Restated Deposit Agreement, dated as of August 7, 2000,
as amended by Amendment No. 1 to Amended and Restated Deposit Agreement, dated
as of _________, 2007 (as so amended and as further amended and supplemented
6
from time to time, the "Deposit Agreement"), by and among the Company, the
Depositary and all Holders and Beneficial Owners from time to time of American
Depositary Shares evidenced by Receipts issued thereunder, each of whom by
accepting a Receipt becomes bound by all the terms and provisions thereof."
SECTION 3.02 Deregistration of Securities. To reflect the
termination of the Company's registration of its securities under the Exchange
Act, the form of Receipt attached as Exhibit A to the Amended and Restated
Deposit Agreement and each of the Receipts issued and outstanding under the
terms of the Amended and Restated Deposit Agreement is hereby amended as of the
Effective Date by deleting paragraph (13) in its entirety and inserting the
following in its stead:
"(13) Available Information. The Company has been subject to the periodic
reporting requirements of the Exchange Act, and has filed with the SEC,
and submitted to the SEC, certain reports that can be retrieved from the
SEC's Internet website at xxx.xxx.xxx, and can be inspected and copied at
the public reference facilities maintained by the SEC at 000 X Xxxxxx,
X.X., Xxxxxxxxxx, X.X. 00000. The Company has filed a Form 15F ("Form
15F") with the SEC, which has suspended the Company's duty under the
Exchange Act to file or submit the reports required under Sections 13(a)
or 15(d) of the Exchange Act. Upon the effectiveness of Form 15F, the
Company's duty to file or submit reports under Sections 13(a) or 15(d) of
the Exchange Act will terminate and the Company will, pursuant to Rule
12g3-2(e)(1), receive the exemption from the reporting obligations of the
Exchange Act provided by Rule 12g3-2(b). In order to satisfy the
conditions of Rule 12g3-2(b), the Company intends to publish the
information contemplated in Rule 12g3-2(b)(1)(iii) under the Exchange Act
7
in English on its Internet website or through an electronic information
delivery system generally available to the public in the Company's primary
trading market. The Company has specified in Form 15F the Internet website
or the electronic information delivery system on which it intends to
publish such information. The information so published by the Company
cannot be retrieved from the SEC's Internet website, and cannot be
inspected or copied at the public reference facilities maintained by the
SEC. If the Form 15F is not declared effective, the Company will again be
subject to the periodic reporting requirements of the Exchange Act and
will be required to file with the SEC, and submit to the SEC, certain
reports that can be retrieved from the SEC's Internet website at
xxx.xxx.xxx, and can be inspected and copied at the public reference
facilities maintained by the SEC."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Representations and Warranties. The Company represents
and warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and
the Amended and Restated Deposit Agreement, as amended hereby, and all other
documentation executed and delivered by the Company in connection therewith,
will be and have been, respectively, duly and validly authorized, executed and
delivered by the Company, and 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
8
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Amended and Restated
Deposit Agreement as amended hereby, and other document furnished hereunder or
thereunder in Hong Kong, neither of such agreements need to be filed or recorded
with any court or other authority in Hong Kong, nor does any stamp or similar
tax need be paid in Hong Kong on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company
in connection with this Amendment is true, accurate and correct.
ARTICLE V
MISCELLANEOUS
SECTION 5.01 New ADRs. From and after the Effective Date, the
Depositary shall arrange to have new ADRs printed or amended that reflect the
changes to the form of ADR effected by this Amendment. All ADRs issued hereunder
after the Effective Date, once such new ADRs are available, whether upon the
deposit of Shares or other Deposited Securities or upon the transfer,
combination or split up of existing ADRs, shall be substantially in the form of
the specimen ADR attached as Exhibit A hereto. However, ADRs issued prior or
subsequent to the date hereof, which do not reflect the changes to the form of
ADR effected hereby, 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 Amended and Restated Deposit Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
SECTION 5.02 Indemnification. The Company agrees to indemnify and
hold harmless the Depositary (and any and all of its directors, employees and
officers) for any and all liability it or they may incur as a result of the
terms of this Amendment and the transactions contemplated herein.
9
SECTION 5.03 Ratification. Except as expressly amended hereby, the
terms, covenants and conditions of the Amended and Restated Deposit Agreement as
originally executed shall remain in full force and effect.
SECTION 5.04 Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be wholly performed in the State of New York.
SECTION 5.05 Counterparts. This Amendment may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall be deemed an original, and all such
counterparts together shall constitute one and the same instrument.
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.
PCCW Limited
By:
-------------------------
Name:
Title:
CITIBANK, N.A., as Depositary
By:
-------------------------
Name:
Title:
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Exhibit A
[FORM OF RECEIPT]
American Depositary Shares (each
American Depositary Share
representing ten (10) Fully Paid
Shares each, par value HK$0.25)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED SHARES
of
PCCW Limited
(Incorporated under the laws of Hong Kong, SAR)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________ is the owner of _____________
American Depositary Shares (hereinafter "ADS"), representing deposited shares,
each of Par Value HK$0.25, including evidence of rights to receive such shares
(the "Shares"), of PCCW Limited, a corporation incorporated under the laws of
Hong Kong, SAR (the "Company"). As of the date of the Deposit Agreement (as
hereinafter defined), each ADS represents ten (10) Shares deposited under the
Deposit Agreement with the Custodian, which at the date of execution of the
Deposit Agreement is Citibank, N.A., Hong Kong, branch (the "Custodian"). The
ADS(s) to Share(s) ratio is subject to amendment as provided in Article IV of
the Deposit Agreement. The Depositary's Corporate Agency Office is located at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. The Depositary's
principal executive office is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000.
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(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue (herein called the Receipts), all issued and to be issued upon the terms
and conditions set forth in the Amended and Restated Deposit Agreement, dated as
of August 7, 2000, as amended by Amendment No. 1 to Amended and Restated Deposit
Agreement, dated as of _________, 2007 (as so amended and as further amended and
supplemented from time to time, the "Deposit Agreement"), by and among the
Company, the Depositary and all Holders and Beneficial Owners from time to time
of American Depositary Shares evidenced by Receipts issued thereunder, each of
whom by accepting a Receipt becomes bound by all the terms and provisions
thereof. The Deposit Agreement sets forth the rights and obligations of Holders
and Beneficial Owners of Receipts and the rights and duties of the Depositary in
respect of the Shares deposited thereunder and any and all other securities,
property and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Corporate Agency Office of the Depositary and with the Custodian. Each Holder
and each Beneficial Owner, 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 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.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Articles Association of
the Company (as in effect on the date of the signing of the Deposit Agreement)
and are qualified by and subject to the detailed provisions of the Deposit
Agreement and the Articles of Association, to which reference is hereby made.
All capitalized terms used herein which are not otherwise defined herein shall
have the
A-2
meanings ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the ADSs
into DTC. Each Beneficial Owner of ADSs held through DTC must rely on the
procedures of DTC and the DTC Participants to exercise and be entitled to any
rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
The Holder of this Receipt (and of the ADSs evidenced hereby) shall be
entitled to Delivery (at the Custodian's designated office) of the Deposited
Securities at the time represented by the ADS(s) evidenced hereby upon
satisfaction of each of the following conditions: (i) the Holder (or a duly
authorized attorney of the Holder) has duly Delivered to the Depositary at its
Corporate Agency Office the ADSs evidenced hereby (and, if applicable, this
Receipt) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if so required by the Depositary, this Receipt has been properly
endorsed in blank or is accompanied by proper instruments of transfer in blank
(including signature guarantees in accordance with standard securities industry
practice), (iii) if so required by the Depositary, the Holder of the ADSs has
executed and delivered to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be Delivered to
or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however,
in each case, to the terms and conditions of this Receipt, of the Deposit
Agreement, of the Company's Articles of Association, of any applicable laws and
the rules of the CCASS, and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
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unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this Receipt, of the Articles of
Association of the Company, of any applicable laws and the rules of the CCASS,
and to the terms and conditions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing other than a whole
number of Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be Delivered in accordance with the terms hereof, and shall,
at the discretion of the Depositary, either (i) return to the person
surrendering such ADSs the number of ADSs representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by the
ADS(s) so Surrendered and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person surrendering the ADSs. Notwithstanding anything else
contained in this Receipt or the Deposit Agreement, the Depositary may make
delivery at the Corporate Agency Office of the Depositary of (i) any cash
dividends or cash distributions, or (ii) any proceeds from the sale of any
distribution of shares or rights, which are at the time held by the Depositary
in respect of the Deposited Securities represented by the ADSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any Holder so
surrendering ADSs represented by this Receipt, and for the account of such
Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held by the
Custodian in respect of the Deposited Securities represented by such ADSs to the
Depositary for delivery at the Corporate Agency Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
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(3) Transfer, Combination and Split-Up of Receipts. The Depositary shall
cause the Registrar to register the transfer of this Receipt (and of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary
shall cancel this Receipt and execute new Receipts evidencing the same aggregate
number of ADSs as those evidenced by this Receipt when canceled, shall cause the
Registrar to countersign such new Receipts, and shall Deliver such new Receipts
to or upon the order of the person entitled thereto, if each of the following
conditions has been satisfied: (i) this Receipt has been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Corporate Agency Office for the purpose of effecting a transfer thereof, (ii)
this Receipt has been properly endorsed or is accompanied by proper instruments
of transfer (including signature guarantees in accordance with standard
securities industry practice), (iii) this Receipt has been duly stamped (if
required by the laws of the State of New York or of the United States), and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement) have been paid, subject, however,
in each case, to the terms and conditions of this Receipt, of the Deposit
Agreement and of applicable law, in each case as in effect at the time thereof.
The Depositary shall cause the Registrar to register the split-up or
combination of this Receipt (and of the ADSs represented hereby) on the books
maintained for such purpose and the Depositary shall cancel this Receipt and
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by this Receipt (when canceled), shall
cause the Registrar to countersign such new Receipts, and shall Deliver such new
Receipts to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) this Receipt has been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Corporate Agency Office for the purpose of effecting a split-up or combination
hereof, and (ii) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and government charges (as are set forth
in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been paid,
subject, however, in each case, to the terms
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and conditions of this Receipt, of the Deposit Agreement and of applicable law,
in each case as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of issuance or transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of Shares
or presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and charges of
the Depositary as provided in the Deposit Agreement and in this Receipt, (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature or any other matters contemplated in the Deposit Agreement, and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this Receipt and the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts generally may be suspended, during any period when the transfer books
of the Company, the Depositary, a Registrar or the Share Registrar are closed or
if any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Shares or ADSs are listed, or under any
provision of the Deposit Agreement or this Receipt, or under any provision
A-6
of, or governing, the Deposited Securities, or because of a meeting of
shareholders of the Company or for any other reason, subject in all cases to
Article (24) hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, Holders are entitled to surrender outstanding ADSs
to withdraw the Deposited Securities at any time subject only to (i) temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Shares in connection with voting at a shareholders' meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the Receipts or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Section I.A.(1) of the
General Instructions to Form F-6 (as such General Instructions may be amended
from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provisions of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to applicable Hong Kong law, the rules and requirements of Hong
Kong Stock Exchange, and of any stock exchange on which Shares or ADSs are, or
will be, registered, traded or listed, or the Articles of Association of the
Company, which are made to provide information, inter alia, as to the capacity
in which such Holder or Beneficial Owner owns ADSs (and Shares, as the case may
be) and regarding the identity of any other person(s) interested in such ADSs
and the nature of such interest and various matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this Receipt
or of the Deposit Agreement, the Company may restrict transfers of the Shares
where such transfer might result in ownership of Shares exceeding limits imposed
by applicable law or the Articles of Association of the Company. The Company may
also restrict, in such manner as it deems appropriate, transfers of ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but
A-7
subject to applicable law, instruct the Depositary to take action with respect
to the ownership interest of any Holder or Beneficial Owner in excess of the
limits set forth in the preceding sentence, including but not limited to, the
imposition of restrictions on the transfer of ADSs, the removal or limitation of
voting rights or a mandatory sale or disposition on behalf of a Holder or
Beneficial Owner of the Shares represented by the ADSs held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Association of
the Company.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable with respect to any Receipt or any Deposited
Securities or ADSs shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or Depositary may withhold or deduct
from any distributions made in respect of Deposited Securities and may sell for
the account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner hereof remaining liable for any deficiency. The Custodian
may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, and to register the transfer, split-up or combination of ADRs and
(subject to Article (24) hereof) the withdrawal of Deposited Securities until
payment in full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and any of their agents, employees and Affiliates for, and hold each
of then harmless from, any claims with respect to taxes (including applicable
interest and penalties thereon) arising from any tax benefit obtained for such
Holder and/or Beneficial Owner.
(8) Representation and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such
A-8
Shares and the certificates therefore are duly authorized, validly issued, fully
paid, non-assessable and legally obtained by such person, (ii) all preemptive
(and similar) rights, if any, with respect to such Shares have been validly
waived or exercised, (iii) the person making such deposit is duly authorized to
do so, (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim and are not,
and the ADSs issuable upon such deposit will not be, Restricted Securities, and
(v) the Shares presented for deposit have not been stripped of any rights or
entitlements. Such representations and warranties shall survive the deposit and
withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof
and the transfer of such ADSs. If any such representations or warranties are
false in any way, the Company and Depositary shall be authorized, at the cost
and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, and any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation (or, in the
case of Shares in registered form presented for deposit, such information
relating to the registration of Shares on the books of the Shares Registrar) as
the Depositary or the Custodian may deem necessary or proper or as the Company
may reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer
of any Receipt or the distribution or sale of any dividend or
A-9
other distribution of rights or of the proceeds thereof or, to the extent not
limited by Article (24) hereof, the delivery of any Deposited Securities until
such proof or other information is filed or such certificates are executed, or
such representations are made or such information and documentation are
provided, in each case to the Depositary's, the Registrar's and the Company's
satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement:
(i) to any person to whom ADSs are issued upon the deposit of
Shares, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or
portion thereof) so issued under the terms of the Deposit
Agreement (excluding issuances pursuant to paragraphs (iii)
and (iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $ 2.00 per
100 ADSs (or portion thereof) held for the distribution of
cash proceeds (i e., upon the sale of rights and other
entitlements);
(iv) to any Holder of ADRs, a fee not in the excess of U.S. $ 5.00
per 100 ADSs (or portion thereof) issued upon the exercise of
rights; and
(v) No Fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends (or other
free distributions of stock) so long as the charging of such
fee is prohibited by the exchange upon which the ADSs are
listed. If charging of such fees is not prohibited, the fees
specified in (i) above shall be payable in respect
distributions of ADS and the fees specified in (iii) above
shall be payable in respect of distributions of cash.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
A-10
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit Agreement
will be paid by the Company upon agreement between the Depositary and the
Company. All fees and charges may, at any time and from time to time, be changed
by agreement between the Depositary and Company but, in the case of fees and
charges payable by Holders or Beneficial Owners, only in the manner contemplated
by Article (22) of this Receipt. The Depositary will provide, without charge, a
copy of its latest fee schedule to anyone upon request. The charges and expenses
of the Custodian are for the sole account of the Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that the Receipt has been properly endorsed or
is accompanied by proper instruments of transfer. Notwithstanding any notice to
the contrary, the Depositary and the Company may deem and treat the Holder of
this Receipt (that is, the person in whose name this Receipt is registered on
the books of the
A-11
Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or this Receipt to any holder of this
Receipt or any Beneficial Owner unless such holder is the Holder of this Receipt
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of Receipt. The Holder(s) of this Receipt (and the ADSs
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this Receipt has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary.
(13) Available Information. The Company has been subject to the periodic
reporting requirements of the Exchange Act, and has filed with the SEC, and
submitted to the SEC, certain reports that can be retrieved from the SEC's
Internet website at xxx.xxx.xxx, and can be inspected and copied at the public
reference facilities maintained by the SEC at 000 X Xxxxxx, X.X., Xxxxxxxxxx,
X.X. 00000. The Company has filed a Form 15F ("Form 15F") with the SEC, which
has suspended the Company's duty under the Exchange Act to file or submit the
reports required under Sections 13(a) or 15(d) of the Exchange Act. Upon the
effectiveness of Form 15F, the Company's duty to file or submit reports under
Sections 13(a) or 15(d) of the Exchange Act
A-12
will terminate and the Company will, pursuant to Rule 12g3-2(e)(1), receive the
exemption from the reporting obligations of the Exchange Act provided by Rule
12g3-2(b). In order to satisfy the conditions of Rule 12g3-2(b), the Company
intends to publish the information contemplated in Rule 12g3-2(b)(1)(iii) under
the Exchange Act in English on its Internet website or through an electronic
information delivery system generally available to the public in the Company's
primary trading market. The Company has specified in Form 15F the Internet
website or the electronic information delivery system on which it intends to
publish such information. The information so published by the Company cannot be
retrieved from the SEC's Internet website, and cannot be inspected or copied at
the public reference facilities maintained by the SEC. If the Form 15F is not
declared effective, the Company will again be subject to the periodic reporting
requirements of the Exchange Act and will be required to file with the SEC, and
submit to the SEC, certain reports that can be retrieved from the SEC's Internet
website at xxx.xxx.xxx, and can be inspected and copied at the public reference
facilities maintained by the SEC.
Dated:
CITIBANK, N .A. CITIBANK, N .A.,
Transfer Agent and Registrar as Depositary
By: By:
--------------------- ---------------------
Authorized Signatory Authorized Signatory
The address of the Corporate Agency Office of the Depositary is 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. The principal executive
office of the Depositary is 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000.
A-13
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distribution in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of the
Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, as promptly as practicable convert or cause
to be converted such cash dividend, distribution or proceeds into Dollars (upon
the terms of the Deposit Agreement), (ii) if applicable, establish the ADS
Record Date upon the terms described in Section 4.9, and (iii) will distribute
promptly the amount thus received (net of (a) applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADS
held as of the ADS Record Date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs represented such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company to the relevant governmental authority.
A-14
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
and either (i) the Depositary shall distribute to the Holders as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date,
additional ADSs, which represent in aggregate the number of Shares received as
such dividend, or free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and the expenses incurred by, the Depositary,
and (b) taxes). In lieu of delivering fractional ADSs, the Depositary shall sell
the number of Shares or ADSs, as the case may be, represented by the aggregate
of such fractions and distribute the net proceeds upon the terms set forth in
the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company has failed to
deliver an opinion of U.S. counsel under Section 5.7 determining that Shares are
registered or exempt from registration under the Securities Act or other laws in
order to be distributed to Holders, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable and the Depositary shall distribute
the net proceeds of any such sale (after deduction of (a) taxes and fees and (b)
charges of, and expenses incurred by, the Depositary) to Holders entitled
thereto.
A-15
upon the terms of the Deposit Agreement. The Depositary shall hold and/or
distribute any unsold balance of such property in accordance with the provisions
of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
an ADS record date according to paragraph (16) and establish procedures to
enable the Holder hereof to elect to receive the proposed distribution in cash
or in additional ADSs. If a Holder elects to receive the distribution in cash,
the dividend shall be distributed as in the case of a distribution in cash. If
the Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be distributed as in the case of a distribution in Shares. If
such elective distribution is not lawful or not reasonably practicable, the
Depositary shall, to the extent permitted by law, distribute to Holders, on the
basis of the same determination as is made in Hong Kong in respect of the Shares
for which no election is made, either (x) cash or (y) additional ADSs
representing such additional Shares, in each case, upon the terms described in
the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Shares (rather than ADSs). There can be no assurance
that the Holder hereof will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Depositary upon consultation with the Company, shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary
A-16
shall sell the rights as described below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date (upon the
terms described in the Deposit Agreement) and establish procedures (x) to
distribute rights to purchase additional ADSs (by means of warrants or
otherwise), (y) to enable the Holders to exercise the rights (upon payment of
the subscription price and of the applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs
upon the valid exercise of such rights. Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise rights to subscribe for Shares (rather than ADSs). If (i) the
Company does not timely request the Depositary to make the rights available to
Holders or if the Company requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive the documentation required by the
Deposit Agreement or determines it is not reasonably practicable to make the
rights available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
and private sale) as it may deem proper. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of applicable fees and charges
of, and expenses incurred by, the Depositary and taxes) upon the terms hereof
and of the Deposit Agreement. If the Depositary is unable to make any rights to
Shares available to Holders or to arrange for the sale of the rights upon the
terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such rights available to Holders in general or any
Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise, or (iii) the content of any materials
forwarded to the ADR Holders on behalf of the Company in connection with the
rights distribution.
A-17
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of ADSs representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Shares and
rights to subscribe therefor) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, the Depositary may
dispose of all or a portion of such property (including Shares and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any such
taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Shares or to exercise such rights. Nothing
herein or in the Deposit Agreement shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
A-18
Upon receipt of a notice indicating that the Company wishes property other
than cash, Shares or rights to purchase additional Shares, to be made to Holders
of ADSs, the Depositary shall determine whether such distribution to Holders is
lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall establish the ADS Record
Date and distribute the property so received to the Holders of record, as of the
ADS Record Date, in proportion to the number of ADSs held by them respectively
and in such manner as the Depositary may deem practicable for accomplishing such
distribution (i) upon receipt of payment or net of the applicable fees and
charges of, and expenses incurred by, the Depositary, and (ii) net of any taxes
withheld. The Depositary may dispose of all or portion of the property so
distributed and deposited, in such amounts and in such manner (including public
or private sale) as the Depositary may deem practicable or necessary to satisfy
any taxes (including applicable interest and penalties) or other governmental
charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) to the Holders upon the terms hereof and of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property for the account of the Holders in any way it deems reasonably
practicable under the circumstances.
A-19
(15) Redemption. Upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) provide to each Holder a notice setting forth the Company's
intention to exercise the redemption rights and any other particulars set forth
in the Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof upon the terms of the Deposit Agreement. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar equivalent of per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
the Deposit Agreement and the applicable fees and charges of, and expenses
incurred by, the Depositary, and taxes) multiplied by the number of Units or
Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, or any other matter, the Depositary
shall fix a record date ("ADS Record Date") for
A-20
the determination of the Holders of Receipts who shall be entitled to receive
such distribution, to give instructions for the exercise of voting rights at any
such meeting, or to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. Subject
to applicable law and the terms and conditions of this Receipt and the Deposit
Agreement, only the Holders of Receipts at the close of business in New York on
such ADS Record Date shall be entitled to receive such distributions, to give
such instructions, to receive such notice or solicitation, or otherwise take
action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy. The Depositary shall (if
requested in writing in a timely manner by the Company, at the Company's expense
and provided no U.S. legal prohibitions exist) distribute to Holders as of the
ADS Record Date: (a) such notice of meeting or solicitation of consent or
proxies, (b) a statement that the Holders as of the ADS Record Date will be
entitled, subject to any applicable law, the Company's Articles of Association
and the provisions of or governing Deposited Securities (which provisions, if
any, shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs and (c) a brief statement
as to the manner in which such voting instructions may be given. Upon the timely
receipt of voting instructions from a Holder of ADSs as of the ADS Record Date
in the manner specified by the Depositary, the Depositary shall endeavor,
insofar as practicable and permitted under applicable law and the provisions of
the Articles of Association of the Company and the provisions of the Deposited
Securities, to vote, or cause the Custodian to vote, the Deposited Securities
represented by such Holder's ADSs in accordance with such instructions.
A-21
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, the Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders or as
otherwise contemplated herein. If the Depositary timely receives voting
instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder's
ADSs, the Depositary will deem such Holder (unless otherwise specified in the
notice distributed to Holders) to have instructed the Depositary to vote in
favor of the items set forth in such instructions. Deposited Securities
represented by ADSs for which no timely voting instructions are received by the
Depositary from the Holder shall not be voted. Notwithstanding anything else
contained in the Deposit Agreement or this Receipt, the Depositary shall not
have any obligation to take any action with respect to any meeting, or
solicitation or consents or proxies, of holders of Shares or other Deposited
Securities if the taking of such action would violate U.S. laws. The Company
agrees to take any and all actions reasonably necessary to enable Holders and
Beneficial Owners to exercise the voting rights accruing to the Deposited
Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
There can be no assurance that Holders generally or any Holder in particular
will receive the notice described above with sufficient time to enable the
Holder to return voting instructions to the Depositary in a timely manner.
A-22
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the Receipt shall,
subject to the provisions of the Deposit Agreement and applicable law, evidence
ADSs representing the right to receive such additional securities. The
Depositary may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of
satisfactory documentation contemplated by the Deposit Agreement, execute and
deliver additional Receipts as in the case of a stock dividend on the Shares, or
call for the surrender of outstanding Receipts to be exchanged for new Receipts
in accordance with procedures established by the Depositary, using its
reasonable judgment including, but not limited to, suspending distributions of
dividends and voting rights in respect of unsurrendered Receipts, in either
case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in this Exhibit A to the Deposit
Agreement, specifically describing such new Deposited Securities or corporate
change. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the Depositary
may, with the Company's approval, and shall if the Company requests, sell such
securities at public or private sale, at such place or places and upon such
terms as it may deem proper and may allocate the net proceeds of such sales (net
of (a) fees and charges of, and expenses incurred by, the Depositary and (b)
taxes) for the account of the Holders otherwise entitled to such securities and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to the
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Deposit Agreement. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or feasible to make such securities available
to Holders in general or any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, Hong Kong or any other country, or of any other
governmental authority or regulatory authority or stock exchange, or by reason
of any provision, present or future of the Articles of Association of the
Company or any provision of or governing any Deposited Securities, or by reason
of any act of God or war or other circumstances beyond its control (including,
without limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, terrorism, explosions
and computer failure), (ii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement or in the
Articles of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for any inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited
A-24
Securities but is not, under the terms of this Deposit Agreement, made available
to Holders of ADSs, (v) for the limitation of any rights under this Deposit
Agreement resulting from a Holder's failure to surrender outstanding Receipts
when required under this Deposit Agreement or for any other actions, in
accordance with market practice, as may be required in connection with a
corporate action relating to the Deposited Securities, or (vi) for any
consequential or punitive damages for any breach of the terms of this Deposit
Agreement. The Depositary, its controlling persons, its agents, any Custodian
and the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties. No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement or this Receipt.
(20) Standard of Care. The Company and the Depositary assume no obligation
and shall not be subject to any liability under the Deposit Agreement or this
Receipt to any Holder(s) or Beneficial Owner(s), except that the Company and
Depositary agree to perform their respective obligations specifically set forth
in the Deposit Agreement and this Receipt without negligence or bad faith. The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of this Deposit
Agreement. The Depositary shall not incur any liability for any failure to
determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited
A-25
Securities or for any tax consequences that may result from the ownership of
ADSs, Shares or Deposited Securities, for the credit-worthiness of any third
party, for allowing any rights to lapse upon the terms of this Deposit Agreement
or for the failure or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) 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 written
notice of such removal, which notice shall be effective on the earlier of (i)
the 60th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. 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 (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor. The predecessor depositary, upon payment of
all sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to
A-26
such successor all rights and powers of such predecessor hereunder (other than
as contemplated in the Deposit Agreement), (ii) duly assign, transfer and
deliver all right, title and interest to the Deposited Securities to such
successor, and (iii) deliver to such successor a list of the Holders of all
outstanding Receipts and such other information relating to Receipts and Holders
thereof as the successor may reasonably request. Any such successor depositary
shall promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
Article 22, the Deposit Agreement and applicable law, this Receipt and any
provisions of the Deposit Agreement may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other that the
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that 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 or (b) the ADSs to be
traded solely in electronic book-entry
A-27
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 materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial
Owner at the time any amendment or supplement so becomes effective shall be
deemed, by continuing to hold such ADS(s), to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement as amended or
supplemented thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which should require amendment
or supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and
this Receipt at any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and
A-28
in the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
providing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed for such termination. On
and after the date of termination of the Deposit Agreement, the Holder will,
upon surrender of such Holder's Receipt(s) at the Corporate Agency Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of ADSs referred to in Article (2) hereof and in the Deposit Agreement and
subject to the conditions and restrictions therein set forth, and upon payment
of any applicable taxes or governmental charges, be entitled to Delivery, to him
or upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of termination
of the Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in the Deposit
Agreement, and shall continue to deliver Deposited Securities, subject to the
conditions and restrictions set forth in the Deposit Agreement, together with
any dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold
A-29
uninvested the net proceeds of any such sale, together with any other cash then
held by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered. After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement with respect to the Receipts and the
Shares, the Deposited Securities and the ADSs, except to account for such net
proceeds and other cash (after deducting, or charging, as the case may be, in
each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any Applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this Receipt or the Deposit Agreement to the contrary, the withdrawal or
delivery of Deposited Securities will not be suspended by the Company or the
Depositary except as would be permitted by I.A. (1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitation. Subject to the further
terms and provisions of this Article (25), the Depositary, its Affiliate and
their agents, on their behalf, may own and deal in any class of securities of
the Company and its Affiliates and in ADSs. The Depositary may issue ADSs
against evidence of rights to receive Shares from the Company, any agent of the
Company or any custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Shares.
Such evidence of rights shall consist of written blanket or specific guarantees
of ownership of Shares. In its capacity as
A-30
Depositary, the Depositary shall not lend Shares or ADSs; provided, however,
that the Depositary may (i) issue ADSs prior to the receipt of Shares pursuant
to Section 2.3 of the Deposit Agreement and (ii) deliver Shares prior to the
receipt of ADSs for withdrawal of Deposited Securities pursuant to Section 2.7
of the Deposit Agreement, including ADSs which were issued under (i) above but
for which Shares may not have been received (each such transaction a
"Pre-Release Transaction"). The Depositary may receive ADSs in lieu of Shares
under (i) above and receive Shares in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) accompanied by or subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs or Shares
are to be delivered (w) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (x) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collaterized with cash,
U.S. government securities or such other collateral as the Depositary deems
appropriate, (c) terminable by the Depositary on not more than five (5) business
days' notice and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The Depositary will normally limit the
number of ADSs and Shares involved in such Pre-Release Transactions at any one
time to thirty percent (30%) of the ADSs outstanding (without giving effect to
ADSs outstanding under (i) above), 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 also set limits with respect to the number
of ADSs and Shares involved in Pre-Release Transactions with anyone person on a
case by case
A-31
basis as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not earnings thereon, shall be held for the
benefit of the Holders (other than the Applicant).
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _______________________________ whose taxpayer identification
number is ____________________________ and whose address including postal zip
code is ___________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing _________________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated:
Name: ________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his/her full title in
such capacity, if not on file with the
Depositary, must be forwarded with this
Receipt.
All endorsement or assignments of Receipts
must be guaranteed by a member of a
Medallion Signature Program approved by the
Securities Transfer Association, Inc.
SIGNATURE GUARANTEED
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