EXHIBIT 4.3
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AGRIA CORPORATION
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
Deposit Agreement
Dated as of [ ], 2007
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.....................................................................................1
SECTION 1.01 AMERICAN DEPOSITARY SHARES....................................................................1
SECTION 1.02 COMMISSION....................................................................................2
SECTION 1.03 COMPANY.......................................................................................2
SECTION 1.04 CUSTODIAN.....................................................................................2
SECTION 1.05 DELIVER; SURRENDER............................................................................2
SECTION 1.06 DEPOSIT AGREEMENT.............................................................................2
SECTION 1.07 DEPOSITARY; CORPORATE TRUST OFFICE............................................................2
SECTION 1.08 DEPOSITED SECURITIES..........................................................................3
SECTION 1.09 DOLLARS.......................................................................................3
SECTION 1.10 DTC...........................................................................................3
SECTION 1.11 FOREIGN REGISTRAR.............................................................................3
SECTION 1.12 HOLDER........................................................................................3
SECTION 1.13 OWNER.........................................................................................3
SECTION 1.14 RECEIPTS......................................................................................3
SECTION 1.15 REGISTRAR.....................................................................................4
SECTION 1.16 RESTRICTED SECURITIES.........................................................................4
SECTION 1.17 SECURITIES ACT OF 1933........................................................................4
SECTION 1.18 SHARES........................................................................................4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY
SHARES .........................................................................................4
SECTION 2.01 FORM OF RECEIPTS; REGISTRATION AND TRANSFERABILITY OF AMERICAN DEPOSITARY SHARES..............4
SECTION 2.02 DEPOSIT OF SHARES.............................................................................5
SECTION 2.03 DELIVERY OF AMERICAN DEPOSITARY SHARES .......................................................6
SECTION 2.04 REGISTRATION OF TRANSFER OF AMERICAN DEPOSITARY SHARES; COMBINATION AND SPLIT-UP OF
RECEIPTS; INTERCHANGE OF CERTIFICATED AND UNCERTIFICATED AMERICAN DEPOSITARY SHARES...........6
SECTION 2.05 SURRENDER OF AMERICAN DEPOSITARY SHARES AND WITHDRAWAL OF DEPOSITED SECURITIES................7
SECTION 2.06 LIMITATIONS ON DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES.................8
SECTION 2.07 LOST RECEIPTS, ETC............................................................................9
SECTION 2.08 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS..........................................9
SECTION 2.09 PRE-RELEASE OF AMERICAN DEPOSITARY SHARES.....................................................9
SECTION 2.10 DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION SYSTEM...............................10
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES........................11
SECTION 3.01 FILING PROOFS, CERTIFICATES AND OTHER INFORMATION............................................11
SECTION 3.02 LIABILITY OF OWNER FOR TAXES.................................................................11
SECTION 3.03 WARRANTIES ON DEPOSIT OF SHARES..............................................................12
ARTICLE 4. THE DEPOSITED SECURITIES.......................................................................12
SECTION 4.01 CASH DISTRIBUTIONS...........................................................................12
SECTION 4.02 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS..............................................12
SECTION 4.03 DISTRIBUTIONS IN SHARES......................................................................13
SECTION 4.04 RIGHTS.......................................................................................13
SECTION 4.05 CONVERSION OF FOREIGN CURRENCY...............................................................15
SECTION 4.06 FIXING OF RECORD DATE........................................................................16
SECTION 4.07 VOTING OF DEPOSITED SECURITIES...............................................................16
SECTION 4.08 CHANGES AFFECTING DEPOSITED SECURITIES.......................................................17
SECTION 4.09 REPORTS......................................................................................17
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SECTION 4.10 LISTS OF OWNERS..............................................................................18
SECTION 4.11 WITHHOLDING..................................................................................18
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY.................................................18
SECTION 5.01 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE DEPOSITARY...................................18
SECTION 5.02 PREVENTION OR DELAY IN PERFORMANCE BY THE DEPOSITARY OR THE COMPANY..........................19
SECTION 5.03 OBLIGATIONS OF THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.................................19
SECTION 5.04 RESIGNATION AND REMOVAL OF THE DEPOSITARY....................................................21
SECTION 5.05 THE CUSTODIANS...............................................................................21
SECTION 5.06 NOTICES AND REPORTS..........................................................................22
SECTION 5.07 DISTRIBUTION OF ADDITIONAL SHARES, RIGHTS, ETC...............................................22
SECTION 5.08 INDEMNIFICATION..............................................................................23
SECTION 5.09 CHARGES OF DEPOSITARY........................................................................24
SECTION 5.10 RETENTION OF DEPOSITARY DOCUMENTS............................................................25
SECTION 5.11 EXCLUSIVITY..................................................................................25
SECTION 5.12 LIST OF RESTRICTED SECURITIES OWNERS.........................................................25
ARTICLE 6. AMENDMENT AND TERMINATION......................................................................25
SECTION 6.01 AMENDMENT....................................................................................25
SECTION 6.02 TERMINATION..................................................................................26
ARTICLE 7. MISCELLANEOUS..................................................................................27
SECTION 7.01 COUNTERPARTS.................................................................................27
SECTION 7.02 NO THIRD PARTY BENEFICIARIES.................................................................27
SECTION 7.03 SEVERABILITY.................................................................................27
SECTION 7.04 OWNERS AND HOLDERS AS PARTIES; BINDING EFFECT................................................27
SECTION 7.05 NOTICES......................................................................................27
SECTION 7.06 SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS; JURY TRIAL WAIVER...28
SECTION 7.07 GOVERNING LAW................................................................................29
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of [ ], 2007, among AGRIA
CORPORATION, incorporated under the laws of the Cayman Islands (herein called
the Company), THE BANK OF NEW YORK, a New York banking corporation (herein
called the Depositary), and all Owners and holders from time to time of American
Depositary Shares issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide, as hereinafter set
forth in this Deposit Agreement, for the deposit of Shares (as hereinafter
defined) of the Company from time to time with the Depositary or with the
Custodian (as hereinafter defined) as agent of the Depositary for the purposes
set forth in this Deposit Agreement, for the creation of American Depositary
Shares representing the Shares so deposited and for the execution and delivery
of American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be
substantially in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed
by and between the parties hereto as follows:
ARTICLE 1.
DEFINITIONS
The following definitions shall for all purposes, unless
otherwise clearly indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the
securities created under this Deposit Agreement representing rights with respect
to the Deposited Securities. American Depositary Shares may be certificated
securities evidenced by Receipts or uncertificated securities. The form of
Receipt annexed as Exhibit A to this Deposit Agreement shall be the prospectus
required under the Securities Act of 1933 for sales of both certificated and
uncertificated American Depositary Shares. Except for those provisions of this
Deposit Agreement that refer specifically to Receipts, all the provisions of
this Deposit Agreement shall apply to both certificated and uncertificated
American Depositary Shares. Each American Depositary Share shall represent the
number of Shares specified in Exhibit A to this Deposit Agreement, until there
shall occur a distribution upon Deposited Securities covered by Section 4.03 or
a change in Deposited Securities covered by Section 4.08 with respect to which
additional American Depositary Shares are not delivered, and thereafter American
Depositary Shares shall represent the amount of Shares or Deposited Securities
specified in such Sections.
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SECTION 1.02 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.03 Company.
The term "Company" shall mean AGRIA CORPORATION, organized
under the laws of the Cayman Islands, and its successors.
SECTION 1.04 Custodian.
The term "Custodian" shall mean the Hong Kong office of The
Hongkong and Shanghai Banking Corporation Limited, as agent of the Depositary
for the purposes of this Deposit Agreement, and any other firm or corporation
which may hereafter be appointed by the Depositary pursuant to the terms of
Section 5.05, as substitute or additional custodian or custodians hereunder, as
the context shall require and shall also mean all of them collectively.
SECTION 1.05 Deliver; Surrender.
(a) The term "deliver", or its noun form, when used with
respect to Shares or other Deposited Securities, shall mean (i) book-entry
transfer of those Shares or other Deposited Securities to an account maintained
by an institution authorized under applicable law to effect transfers of such
securities designated by the person entitled to that delivery or (ii) physical
transfer of certificates evidencing those Shares or other Deposited Securities
registered in the name of, or duly endorsed or accompanied by proper instruments
of transfer to, the person entitled to that delivery.
(b) The term "deliver", or its noun form, when used with
respect to American Depositary Shares, shall mean (i) book-entry transfer of
American Depositary Shares to an account at DTC designated by the person
entitled to such delivery evidencing American Depositary Shares registered in
the name requested by that person (ii) registration of American Depositary
Shares not evidenced by a Receipt on the books of the Depositary in the name
requested by the person entitled to such delivery and mailing to that person of
a statement confirming that registration or (iii) if requested by the person
entitled to such delivery, delivery at the Corporate Trust Office of the
Depositary to the person entitled to such delivery of one or more Receipts.
(c) The term "surrender", when used with respect to
American Depositary Shares, shall mean (i) one or more book-entry transfers of
American Depositary Shares to the DTC account of the Depositary, (ii) delivery
to the Depositary at its Corporate Trust Office of an instruction to surrender
American Depositary Shares not evidenced by a Receipt or (iii) surrender to the
Depositary at its Corporate Trust Office of one or more Receipts evidencing
American Depositary Shares.
SECTION 1.06 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the
same may be amended from time to time in accordance with the provisions hereof.
SECTION 1.07 Depositary; Corporate Trust Office.
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The term "Depositary" shall mean The Bank of New York, a New
York banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Deposit Agreement is 000
Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
SECTION 1.08 Deposited Securities.
The term "Deposited Securities" as of any time shall mean
Shares at such time deposited or deemed to be deposited under this Deposit
Agreement, including without limitation Shares that have not been successfully
delivered upon surrender of American Depositary Shares, and any and all other
securities, property and cash received by the Depositary or the Custodian in
respect thereof and at such time held under this Deposit Agreement, subject as
to cash to the provisions of Section 4.05.
SECTION 1.09 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.10 DTC.
The term "DTC" shall mean The Depository Trust Company or its
successor.
SECTION 1.11 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that
presently carries out the duties of registrar for the Shares or any successor as
registrar for the Shares and any other agent of the Company for the transfer and
registration of Shares, including without limitation any securities depository
for the Shares.
SECTION 1.12 Holder.
The term "Holder" shall mean any person holding a Receipt or a
security entitlement or other interest in American Depositary Shares, whether
for its own account or for the account of another person, but that is not the
Owner of that Receipt or those American Depositary Shares.
SECTION 1.13 Owner.
The term "Owner" shall mean the person in whose name American
Depositary Shares are registered on the books of the Depositary maintained for
such purpose.
SECTION 1.14 Receipts.
The term "Receipts" shall mean the American Depositary
Receipts issued hereunder evidencing certificated American Depositary Shares, as
the same may be amended from time to time in accordance with the provisions
hereof.
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SECTION 1.15 Registrar.
The term "Registrar" shall mean any bank or trust company
having an office in the Borough of Manhattan, The City of New York, that is
appointed by the Depositary to register American Depositary Shares and transfers
of American Depositary Shares as herein provided.
SECTION 1.16 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or ADSs
representing such Shares, which (i) have been acquired directly or indirectly
from the Company or any of its affiliates (as defined in Rule 144 under the
Securities Act) in a transaction or chain of transactions not involving any
public offering, or are subject to resale limitations under Regulation D under
that Act or both, (ii) are held directly or indirectly by an officer, director
(or persons performing similar functions) or other affiliate of the Company,
(iii) would require registration under the Securities Act in connection with the
public offer and sale thereof in the United States, or (iv) are subject to other
restrictions on sale or deposit under the laws of the United States, the
People's Republic of China, the Cayman Islands or Hong Kong, or under a
shareholder agreement or the Company's Memorandum and Articles of Association or
under the regulations of an applicable securities exchange unless, in each case,
(x) the sale of such Shares in the United States would be covered by an
effective registration statement under the Securities Act or (y) the transaction
is exempt from the registration requirements of the Securities Act (as
hereinafter defined), and the Shares are not, when deposited, Restricted
Securities.
SECTION 1.17 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.18 Shares.
The term "Shares" shall mean ordinary shares of the Company,
that are validly issued and outstanding and fully paid, nonassessable and that
were not issued in violation of any pre-emptive or similar rights of the holders
of outstanding securities of the Company; provided, however, that, if there
shall occur any change in nominal value, a split-up or consolidation or any
other reclassification or, upon the occurrence of an event described in Section
4.08, an exchange or conversion in respect of the Shares of the Company, the
term "Shares" shall thereafter also mean the successor securities resulting from
such change in nominal value, split-up or consolidation or such other
reclassification or such exchange or conversion.
ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES,
DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES
SECTION 2.01 Form of Receipts; Registration and Transferability of American
Depositary Shares.
Definitive Receipts shall be substantially in the form set
forth in Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as
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hereinafter provided. No Receipt shall be entitled to any benefits under
this Deposit Agreement or be valid or obligatory for any purpose, unless such
Receipt shall have been (i) executed by the Depositary by the manual signature
of a duly authorized officer of the Depositary or (ii) executed by the facsimile
signature of a duly authorized officer of the Depositary and countersigned by
the manual signature of a duly authorized signatory of the Depositary or a
Registrar. The Depositary shall maintain books on which (x) each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered and (y) all American Depositary Shares delivered as
hereinafter provided and all registrations of transfer of American Depositary
Shares shall be registered. A Receipt bearing the facsimile signature of a
person that was at any time a proper officer of the Depositary shall, subject to
the other provisions of this paragraph, bind the Depositary, notwithstanding
that such person was not a proper officer of the Depositary on the date of
issuance of that Receipt.
The Receipts may be endorsed with or have incorporated in the
text thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or to
indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
American Depositary Shares evidenced by a Receipt, when
properly endorsed or accompanied by proper instruments of transfer, shall be
transferable as certificated registered securities under the laws of New York.
American Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Depositary,
notwithstanding any notice to the contrary, may treat the Owner of American
Depositary Shares as the absolute owner thereof for the purpose of determining
the person entitled to distribution of dividends or other distributions or to
any notice provided for in this Deposit Agreement and for all other purposes,
and neither the Depositary nor the Company shall have any obligation or be
subject to any liability under this Deposit Agreement to any Holder of a Receipt
unless such Holder is the Owner thereof.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instruments
or instructions for transfer, or endorsement, in form satisfactory to the
Custodian, together with all such certifications as may be required by the
Depositary or the Custodian in accordance with the provisions of this Deposit
Agreement, and, if the Depositary requires, together with a written order
directing the Depositary to deliver to, or upon the written order of, the person
or persons stated in such order, the number of American Depositary Shares
representing such deposit.
No Share shall be accepted for deposit unless accompanied by
evidence satisfactory to the Depositary that any necessary approval has been
granted by any governmental body in the Cayman Islands or the People's Republic
of China which is then performing the function of the regulation of currency
exchange. If required by the Depositary, Shares presented
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for deposit at any time, whether or not the transfer books of the Company or the
Foreign Registrar, if applicable, are closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Custodian of any dividend, or
right to subscribe for additional Shares or to receive other property which any
person in whose name the Shares are or have been recorded may thereafter receive
upon or in respect of such deposited Shares, or in lieu thereof, such agreement
of indemnity or other agreement as shall be satisfactory to the Depositary.
At the request and risk and expense of any person proposing to
deposit Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or
certificates for Shares to be deposited hereunder, together with the other
documents specified above, such Custodian shall, as soon as transfer and
recordation can be accomplished, present such certificate or certificates to the
Company or the Foreign Registrar, if applicable, for transfer and recordation of
the Shares being deposited in the name of the Depositary or its nominee or such
Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
SECTION 2.03 Delivery of American Depositary Shares .
Upon receipt by any Custodian of any deposit pursuant to
Section 2.02 hereunder, together with the other documents required as specified
above, such Custodian shall notify the Depositary of such deposit and the person
or persons to whom or upon whose written order American Depositary Shares are
deliverable in respect thereof and the number of American Depositary Shares to
be so delivered. Such notification shall be made by letter or, at the request,
risk and expense of the person making the deposit, by cable, telex or facsimile
transmission (and in addition, if the transfer books of the Company or the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Company or
the Foreign Registrar that any Deposited Securities have been recorded upon the
books of the Company or the Foreign Registrar, if applicable, in the name of the
Depositary or its nominee or such Custodian or its nominee). Upon receiving such
notice from such Custodian, or upon the receipt of Shares or evidence of the
right to receive Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall deliver, to or upon the order of
the person or persons entitled thereto, the number of American Depositary Shares
issuable in respect of that deposit, but only upon payment to the Depositary of
the fees and expenses of the Depositary for the delivery of such American
Depositary Shares as provided in Section 5.09, and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
SECTION 2.04 Registration of Transfer of American Depositary
Shares; Combination and Split-up of Receipts;
Interchange of Certificated and Uncertificated
American Depositary Shares.
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The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of American Depositary Shares on its
transfer books from time to time, upon (i) in the case of certificated American
Depositary Shares, surrender of the Receipt evidencing those American Depositary
Shares, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer or (ii) in the case of
uncertificated American Depositary Shares, receipt from the Owner of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10), and, in either case, duly stamped as may
be required by the laws of the State of New York and of the United States of
America. Thereupon the Depositary shall deliver those American Depositary Shares
to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose
of effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary, upon surrender of a Receipt for the purpose of
exchanging for uncertificated American Depositary Shares, shall cancel that
Receipt and send the Owner a statement confirming that the Owner is the owner of
the same number of uncertificated American Depositary Shares that the
surrendered Receipt evidenced. The Depositary, upon receipt of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10) from the Owner of uncertificated American
Depositary Shares for the purpose of exchanging for certificated American
Depositary Shares, shall execute and deliver to the Owner a Receipt evidencing
the same number of certificated American Depositary Shares.
The Depositary may, with notice given as promptly as
practicable to the Company, appoint one or more co-transfer agents for the
purpose of effecting registration of transfers of American Depositary Shares and
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to American Depositary Shares and
will be entitled to protection and indemnity to the same extent as the
Depositary. The Depositary shall require each co-transfer agent that it appoints
under this Section 2.04 to give notice in writing to the Depositary accepting
such appointment and agreeing to abide by the applicable terms of this Deposit
Agreement.
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal of
Deposited Securities.
Upon surrender at the Corporate Trust Office of the Depositary
of American Depositary Shares for the purpose of withdrawal of the Deposited
Securities represented thereby, and upon payment of the fee of the Depositary
for the surrender of American Depositary Shares as provided in Section 5.09 and
payment of all taxes and governmental charges payable in connection with such
surrender and withdrawal of the Deposited Securities, and subject to the terms
and conditions of this Deposit Agreement, the Owner of those American Depositary
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Shares shall be entitled to delivery, to him or as instructed, of the amount of
Deposited Securities at the time represented by those American Depositary
Shares. Delivery of such Deposited Securities may be made by the delivery of (a)
certificates or account transfer for Shares in the name of such Owner with
proper endorsement or accompanied by proper instruments or instructions of
transfer to such Owner or pursuant to proper delivery instructions and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of those American Depositary Shares to such Owner or such person or
persons as instructed. Such delivery shall be made, as hereinafter provided,
without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank. The Depositary may require the surrendering Owner to
execute and deliver 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 a person or persons designated in such order in the manner
provided in the preceding paragraph. Thereupon the Depositary shall direct the
Custodian to deliver at the office of such Custodian, subject to Sections 2.06,
3.01 and 3.02 and to the other terms and conditions of this Deposit Agreement,
to or upon the written order of the person or persons designated in the order
delivered to the Depositary as above provided, the amount of Deposited
Securities represented by the surrendered American Depositary Shares, except
that the Depositary may make delivery to such person or persons at the Corporate
Trust Office of the Depositary of any dividends or distributions with respect to
the Deposited Securities represented by those American Depositary Shares, or of
any proceeds of sale of any dividends, distributions or rights, which may at the
time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering
American Depositary Shares, and for the account of such Owner, the Depositary
shall direct the Custodian to forward any cash or other property (other than
rights) comprising, and forward a certificate or certificates, if applicable,
and other proper documents of title for, the Deposited Securities represented by
the American Depositary Shares (evidenced by such Receipt, if applicable) to the
Depositary for delivery at the Corporate Trust Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Owner, by cable, telex or facsimile transmission.
The Depositary shall not deliver the Deposited Securities
except (i) upon surrender of American Depositary Shares under this Section 2.05,
(ii) in a surrender of the Deposited Securities to the Company or its agent in a
transaction to which Section 4.08 applies or (iii) in connection with a sale of
the Deposited Securities permitted under Section 3.02, 4.03, 4.04, 4.11 or 6.02.
SECTION 2.06 Limitations on Delivery, Transfer and Surrender of American
Depositary Shares.
As a condition precedent to the delivery, registration of
transfer, or surrender of any American Depositary Shares or split-up or
combination of any Receipt or withdrawal of any Deposited Securities, the
Depositary, Custodian or Registrar may require payment from the depositor of
Shares or the presenter of the Receipt or instruction for registration of
transfer or
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surrender of American Depositary Shares not evidenced by 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 as herein provided, may require the production of
proof satisfactory to it as to the identity and genuineness of any signature or
other information it deems necessary and may also require compliance with any
regulations the Depositary may establish consistent with the provisions of this
Deposit Agreement, including, without limitation, this Section 2.06.
The delivery of American Depositary Shares against deposit of
Shares generally or against deposit of particular Shares may be suspended, or
the transfer of American Depositary Shares in particular instances may be
refused, or the registration of transfer of outstanding American Depositary
Shares generally may be suspended, during any period when the transfer books of
the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or for any other
reason, subject to the provisions of the following sentence. Notwithstanding
anything to the contrary in this Deposit Agreement, the surrender of outstanding
American Depositary Shares and withdrawal of Deposited Securities may not be
suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the Foreign Registrar, if applicable,
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, and (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the American Depositary Shares or to the withdrawal of
the Deposited Securities. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this Deposit Agreement any Shares
which would be required to be registered under the provisions of the Securities
Act of 1933 for public offer and sale in the United States, unless a
registration statement is in effect as to such Shares for such offer and sale.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or
stolen, the Depositary shall execute and deliver a new Receipt of like tenor in
exchange and substitution for such mutilated Receipt upon cancellation thereof,
or in lieu of and in substitution for such destroyed, lost or stolen Receipt.
Before the Depositary shall execute and deliver a new Receipt in substitution
for a destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed
with the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled
by the Depositary. The Depositary is authorized to destroy Receipts so
cancelled.
SECTION 2.09 Pre-Release of American Depositary Shares.
Unless requested by the Company to cease doing so, the Depositary may,
notwithstanding Section 2.3, deliver American Depositary Shares prior to the
receipt of Shares
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pursuant to Section 2.2 ("Pre-Release"). The Depositary may, pursuant to Section
2.5, deliver Shares upon the surrender of American Depositary Shares that have
been Pre-Released, whether or not such cancellation is prior to the termination
of such Pre-Release or the Depositary knows that such American Depositary Shares
have been Pre-Released. The Depositary may receive American Depositary Shares in
lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a)
preceded or accompanied by a written representation and agreement from the
person to whom American Depositary Shares are to be delivered (the
"Pre-Releasee") that the Pre-Releasee, or its customer, (i) owns the Shares or
American Depositary Shares to be remitted, as the case may be (ii) assigns all
beneficial rights, title and interest in such Shares or American Depositary
Shares, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and (iii) will not take any action with respect to
such Shares or American Depositary Shares, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or American Depositary
Shares, as the case may be), other than in satisfaction of such Pre-Release, (b)
at all times fully collateralized with cash, U.S. government securities or such
other collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (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
number of Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; provided, however, that
the Depositary reserves the right to disregard such limit from time to time as
it deems reasonably appropriate, and may, with the prior written consent of the
Company, change such limit for purposes of general application. The Depositary
will also set Dollar limits with respect to Pre-Release transactions to be
entered into hereunder with any particular Pre-Releasee on a case-by-case basis
as the Depositary deems appropriate. For purposes of enabling the Depositary to
fulfill its obligations to the Owners under the Deposit Agreement, the
collateral referred to in clause (b) above shall be held by the Depositary as
security for the performance of the Pre-Releasee's obligations to the Depositary
in connection with a Pre-Release transaction, including the Pre-Releasee's
obligation to deliver American Depositary Shares upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.10 DTC Direct Registration System and Profile Modification System
(a) Notwithstanding the provisions of Section 2.04, the
parties acknowledge that the Direct Registration System ("DRS") and Profile
Modification System ("Profile") shall apply to uncertificated American
Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the system
administered by DTC pursuant to which the Depositary may register the ownership
of uncertificated American Depositary Shares, which ownership shall be evidenced
by periodic
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statements issued by the Depositary to the Owners entitled thereto. Profile is a
required feature of DRS which allows a DTC participant, claiming to act on
behalf of an Owner of American Depositary Shares, to direct the Depositary to
register a transfer of those American Depositary Shares to DTC or its nominee
and to deliver those American Depositary Shares to the DTC account of that DTC
participant without receipt by the Depositary of prior authorization from the
Owner to register such transfer.
(b) In connection with and in accordance with the arrangements
and procedures relating to DRS/Profile, the parties understand that the
Depositary will not verify, determine or otherwise ascertain that the DTC
participant which is claiming to be acting on behalf of an Owner in requesting a
registration of transfer and delivery as described in subsection (a) has the
actual authority to act on behalf of the Owner (notwithstanding any requirements
under the Uniform Commercial Code). For the avoidance of doubt, the provisions
of Sections 5.03 and 5.08 shall apply to the matters arising from the use of the
DRS. The parties agree that the Depositary's reliance on and compliance with
instructions received by the Depositary through the DRS/Profile System and in
accordance with this Deposit Agreement shall not constitute negligence or bad
faith on the part of the Depositary.
ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or
holder may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of American
Depositary Shares or the distribution of any dividend or sale or distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed or such certificates are executed
or such representations and warranties made. If requested in writing, the
Depositary shall, as promptly as practicable, provide the Company, at the
expense of the Company, with copies of any such proofs, certificates or other
information it receives pursuant to this section, unless prohibited by
applicable law.
SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable
by the Custodian or the Depositary with respect to any American Depositary
Shares or any Deposited Securities represented by any American Depositary
Shares, such tax or other governmental charge shall be payable by the Owner of
such American Depositary Shares to the Depositary. The Depositary may refuse to
register any transfer of those American Depositary Shares or any withdrawal of
Deposited Securities represented by those American Depositary Shares until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the
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Owner thereof any part or all of the Deposited Securities represented by those
American Depositary Shares, and may apply such dividends or other distributions
or the proceeds of any such sale in payment of such tax or other governmental
charge and the Owner of such American Depositary Shares shall remain liable for
any deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares and each
certificate therefor, if applicable, are validly issued, fully paid,
nonassessable and free of any preemptive rights of the holders of outstanding
Shares and that the person making such deposit is duly authorized so to do.
Every such person shall also be deemed to represent that the deposit of such
Shares and the sale of American Depositary Shares representing such Shares by
that person are not restricted under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and delivery
of American Depositary Shares.
ARTICLE 4.
THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or
other cash distribution on any Deposited Securities, the Depositary shall,
subject to the provisions of Section 4.05, convert such dividend or distribution
into Dollars and shall distribute the amount thus received (net of the fees and
expenses of the Depositary as provided in Section 5.09) to the Owners entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively; provided, however, that in
the event that the Company or the Depositary shall be required to withhold and
does withhold from such cash dividend or such other cash distribution an amount
on account of taxes or other governmental charges, the amount distributed to the
Owner of the American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Owner a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest whole cent
and so distributed to Owners entitled thereto. The Company or its agent will
remit to the appropriate governmental agency in the Cayman Islands or the
People's Republic of China all amounts withheld and owing to such agency. The
Depositary will forward to the Company or its agent such information from its
records as the Company may reasonably request to enable the Company or its agent
to file necessary reports with governmental agencies, and the Depositary or the
Company or its agent may file any such reports necessary to obtain benefits
under the applicable tax treaties for the Owners.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever
the Depositary shall receive any distribution other than a distribution
described in Sections 4.01, 4.03 or 4.04, the Depositary shall cause the
securities or property received by it to be distributed to the Owners entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary or
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any taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or holders) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it may deem equitable and practicable
for the purpose of effecting such distribution, including, but not limited to,
the public or private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the fees and
expenses of the Depositary as provided in Section 5.09) shall be distributed by
the Depositary to the Owners entitled thereto as in the case of a distribution
received in cash. The Depositary may refuse to effect any distribution of
securities under this Section 4.2 unless it has received an opinion of United
States counsel for the Company that is satisfactory to the Depositary that the
distribution does not require registration under the Securities Act. The
Depositary may sell, by public or private sale, an amount of securities or other
property it would otherwise distribute under this Section 4.02 that is
sufficient to pay it fees and expenses in respect of that distribution.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Depositary may deliver to
the Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively, an
aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
the issuance of American Depositary Shares, including the withholding of any tax
or other governmental charge as provided in Section 4.11 and the payment of the
fees and expenses of the Depositary as provided in Section 5.09 (and the
Depositary may sell, by public or private sale, an amount of the Shares received
sufficient to pay its fees and expenses in respect of that distribution). The
Depositary may withhold any such delivery of American Depositary Shares if it
has not received satisfactory assurances from the Company that such distribution
does not require registration under the Securities Act of 1933. In lieu of
delivering fractional American Depositary Shares in any such case, the
Depositary shall sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.01. If additional American Depositary Shares
are not so delivered, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby.
SECTION 4.04 Rights.
In the event that the Company shall offer or cause to be
offered to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall have
discretion as to the procedure to be followed in making such rights available to
any Owners or in disposing of such rights on behalf of any Owners and
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making the net proceeds available to such Owners or, if by the terms of such
rights offering or for any other reason, the Depositary may not either make such
rights available to any Owners or dispose of such rights and make the net
proceeds available to such Owners, then the Depositary shall allow the rights to
lapse. If at the time of the offering of any rights the Depositary determines in
its reasonable discretion that it is lawful and feasible to make such rights
available to all or certain Owners but not to other Owners, the Depositary may
distribute to any Owner to whom it determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary Shares held by such
Owner, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be
distributed, if an Owner requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner hereunder, the Depositary will make such rights available
to such Owner upon written notice from the Company to the Depositary that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Owner has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Owners, then upon instruction from such
an Owner pursuant to such warrants or other instruments to the Depositary from
such Owner to exercise such rights, upon payment by such Owner to the Depositary
for the account of such Owner of an amount equal to the purchase price of the
Shares to be received upon the exercise of the rights, and upon payment of the
fees and expenses of the Depositary and any other charges as set forth in such
warrants or other instruments, the Depositary shall, on behalf of such Owner,
exercise the rights and purchase the Shares, and the Company shall cause the
Shares so purchased to be delivered to the Depositary on behalf of such Owner.
As agent for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 of this Deposit Agreement, deliver American Depositary
Shares to such Owner. In the case of a distribution pursuant to the second
paragraph of this Section, such deposit shall be made, and Deposited Securities
shall be delivered, under depositary arrangements which provide for issuance of
Deposited Securities subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under applicable United States laws.
If the Depositary determines in its reasonable discretion that
it is not lawful and feasible to make such rights available to all or certain
Owners, it may sell the rights, warrants or other instruments in proportion to
the number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of this Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any American Depositary Shares or
otherwise.
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The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner requests the distribution of warrants or other
instruments, notwithstanding that there has been no such registration under the
Securities Act of 1933, the Depositary shall not effect such distribution unless
it has received an opinion from recognized counsel in the United States for the
Company upon which the Depositary may rely that such distribution to such Owner
is exempt from such registration; provided, however, that the Company will have
no obligation to cause its counsel to issue such opinion at the request of such
Owner.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted by sale or in any other manner that it may determine such foreign
currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any American Depositary Shares or
otherwise and shall be net of any expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
shall file such application for approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall determine that in its
judgment any foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary is
not obtainable without excessively burdensome or otherwise unreasonable efforts,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
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If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some of the Owners entitled
thereto, the Depositary may in its discretion make such conversion and
distribution in Dollars to the extent permissible to the Owners entitled thereto
and may distribute the balance of the foreign currency received by the
Depositary to, or hold such balance uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled thereto.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which date shall be the same date, to the extent
practicable, as the record date for the Deposited Securities or if different, as
close thereto as practicable (a) for the determination of the Owners who shall
be (i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting or (iii) responsible for any fee
or charge assessed by the Depositary pursuant to this Deposit Agreement, or (b)
on or after which each American Depositary Share will represent the changed
number of Shares. Subject to the provisions of Sections 4.01 through 4.05 and to
the other terms and conditions of this Deposit Agreement, the Owners on such
record date shall be entitled, as the case may be, to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively and to give
voting instructions and to act in respect of any other such matter.
SECTION 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or
other Deposited Securities, if requested in writing by the Company, the
Depositary shall, as soon as practicable thereafter, mail to the Owners a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary from the Company, (b) a statement
that the Owners as of the close of business on a specified record date will be
entitled, subject to any applicable provision of People's Republic of China and
Cayman Islands law and of the articles of association or similar document of the
Company, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that such instructions may be given or deemed given in accordance
with the last sentence of this paragraph if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of an Owner on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor, in so far as practicable, to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by the American Depositary
Shares in accordance with the instructions set forth in such request. The
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Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions or deemed instructions. If no instructions are received by the
Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities, provided,
that no such instruction shall be deemed given and no such discretionary proxy
shall be given with respect to any matter as to which the Company informs the
Depositary (and the Company agrees to provide such information as promptly as
practicable in writing) that (x) the Company does not wish such proxy given, (y)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner
in particular will receive the notice described in the preceding paragraph
sufficiently prior to the instruction cutoff date to ensure that the Depositary
will vote the Shares or Deposited Securities in accordance with the provisions
set forth in the preceding paragraph.
In order to give Owners a reasonable opportunity to instruct
the Depositary as to the exercise of voting rights relating to Deposited
Securities, if the Company will request the Depositary to act under this Section
4.07, the Company shall give the Depositary notice of any such meeting and
details concerning the matters to be voted upon not less than 45 days prior to
the meeting date.
SECTION 4.08 Changes Affecting Deposited Securities.
Upon any change in nominal value, change in par value,
split-up, 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, or upon the redemption
or cancellation by the Company of the Deposited Securities, any securities, cash
or property which shall be received by the Depositary or a Custodian in exchange
for, in conversion of, in lieu of or in respect of Deposited Securities, shall
be treated as new Deposited Securities under this Deposit Agreement, and
American Depositary Shares shall thenceforth represent, in addition to the
existing Deposited Securities, the right to receive the new Deposited Securities
so received, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners
at its Corporate Trust Office, as promptly as practicable after receipt, any
reports and communications, including any proxy solicitation material, received
from the Company which are both (a) received by the Depositary as the holder of
the Deposited Securities and (b) made generally available to the
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holders of such Deposited Securities by the Company. The Depositary shall also,
upon written request by the Company, send to the Owners copies of such reports
when furnished by the Company pursuant to Section 5.06. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English, to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at
the expense of the Company, furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons in
whose names American Depositary Shares are registered on the books of the
Depositary.
SECTION 4.11 Withholding.
The Company or its agent will remit to the appropriate
governmental agencies in the Cayman Islands and the People's Republic of China
all amounts withheld and owing to such agencies. The Depositary will forward to
the Company or its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental agencies, and the Depositary or the Company or its agent may
file any such reports necessary to obtain benefits under the applicable tax
treaties for the Owners of Receipts.
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 charge which the Depositary is
obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes or charges and the Depositary shall distribute
the net proceeds of any such sale after deduction of such taxes or charges to
the Owners entitled thereto in proportion to the number of American Depositary
Shares held by them respectively.
ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books
by the Depositary.
Until termination of this Deposit Agreement in accordance with
its terms, the Depositary shall maintain in the Borough of Manhattan, The City
of New York, facilities for the execution and delivery, registration,
registration of transfers and surrender of Receipts in accordance with the
provisions of this Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust
Office, for the registration of American Depositary Shares and transfers of
American Depositary Shares which at all reasonable times shall be open for
inspection by the Owners and the Company, provided that such inspection shall
not be for the purpose of communicating with Owners in the interest of a
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business or object other than the business of the Company or a matter related to
this Deposit Agreement or the American Depositary Shares.
The Depositary may close the transfer books, at any time or
from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder or at the reasonable written request of the
Company.
If any American Depositary Shares are listed on one or more
stock exchanges in the United States, the Depositary shall act as Registrar or,
with notice given as promptly as practicable to the Company, appoint a Registrar
or one or more co-registrars for registry of such American Depositary Shares in
accordance with any requirements of such exchange or exchanges. The Depositary
shall require each Registrar and co registrar that it appoints under this
Section 5.01 to give notice in writing to the Depositary accepting such
appointment and agreeing to abide by the applicable terms of this Deposit
Agreement.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Owner or Holder (i) if by reason of any provision of any present or
future law or regulation of the United States, the People's Republic of China or
any other country, or of any governmental or regulatory authority or stock
exchange, or by reason of any provision, present or future, of the articles of
association or similar document of the Company, or by reason of any provision of
any securities issued or distributed by the Company, or any offering or
distribution thereof, or by reason of any act of God or war or terrorism or
other circumstances beyond its control, the Depositary or the Company shall be
prevented, delayed or forbidden from, or be subject to any civil or criminal
penalty on account of, doing or performing any act or thing which by the terms
of this Deposit Agreement or the Deposited Securities it is provided shall be
done or performed, (ii) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which by the terms of this
Deposit Agreement it is provided shall or may be done or performed, (iii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in this Deposit Agreement, (iv) for the inability of any Owner or holder to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of this
Deposit Agreement, made available to Owners or holders, or (v) for any special,
consequential or punitive damages for any breach of the terms of this Deposit
Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02,
or 4.03, or an offering or distribution pursuant to Section 4.04, or for any
other reason, such distribution or offering may not be made available to Owners,
and the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse.
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to
any liability under this Deposit Agreement to any Owner or Holder, except that
the Company agrees to perform its obligations specifically set forth in this
Deposit Agreement without negligence or bad faith.
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The Depositary assumes no obligation nor shall it be subject
to any liability under this Deposit Agreement to any Owner or Holder (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities), except that the Depositary agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Company shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the American
Depositary Shares on behalf of any Owner or Holder or any other person.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon any documents it believes in good
faith to be genuine and to have been signed or presented by the proper party.
The Depositary shall not be liable for any acts or omissions
made by a successor depositary whether in connection with a previous act or
omission of the Depositary or in connection with any matter arising wholly after
the removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary performed
its obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be liable for the acts or omissions
made by any securities depository, clearing agency or settlement system in
connection with or arising out of book-entry settlement of Deposited Securities
or otherwise.
The Depositary shall not be responsible for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any such vote is cast or the effect of any such vote, provided
that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
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SECTION 5.04 Resignation and Removal of the 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
120 days prior written notice of such removal, to become effective upon the
later of (i) the 120th day after delivery of the notice to the Depositary and
(ii) the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its reasonable 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; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor and shall deliver to such successor a list of the
Owners of all outstanding Receipts. Any such successor depositary shall promptly
mail notice of its appointment to the Owners.
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.
SECTION 5.05 The Custodians.
The Custodian shall be subject at all times and in all
respects to the directions of the Depositary and shall be responsible solely to
it. Any Custodian may resign and be discharged from its duties hereunder by
notice of such resignation delivered to the Depositary at least 30 days prior to
the date on which such resignation is to become effective. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian or
custodians, each of which shall thereafter be a Custodian hereunder. Whenever
the Depositary in its discretion determines that it is in the best interest of
the Owners to do so, it may appoint a substitute or additional custodian or
custodians, each of which shall thereafter be one of the Custodians hereunder.
Upon demand of the Depositary any Custodian shall deliver such of the Deposited
Securities held by it as are requested of it to any other Custodian or such
substitute or additional custodian or custodians. Each such substitute or
additional custodian shall deliver to the Depositary, forthwith upon its
appointment, an acceptance of such appointment satisfactory in form and
substance to the Depositary.
Upon the appointment of any successor depositary hereunder,
each Custodian then acting hereunder shall forthwith become, without any further
act or writing, the agent
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hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder; but
the successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority as agent hereunder of such successor depositary.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice,
by publication or otherwise, of any meeting of holders of Shares or other
Deposited Securities, or of any adjourned meeting of such holders, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights, the Company agrees to transmit to the Depositary and the
Custodian a copy of the notice thereof in the form given or to be given to
holders of Shares or other Deposited Securities.
The Company will arrange for the translation into English, if
not already in English, to the extent required pursuant to any regulations of
the Commission, and the prompt transmittal by the Company to the Depositary and
the Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
If the Company or any affiliate of the Company determines to
make any issuance or distribution of (1) additional Shares, (2) rights to
subscribe for Shares, (3) securities convertible into Shares, or (4) rights to
subscribe for such securities (each a "Distribution"), the Company shall notify
the Depositary in writing in English as promptly as practicable and in any event
before the Distribution starts and, if requested in writing by the Depositary,
the Company shall promptly furnish to the Depositary a written opinion from U.S.
counsel for the Company that is reasonably satisfactory to the Depositary,
stating whether or not the Distribution requires, or, if made in the United
States, would require, registration under the Securities Act of 1933. If, in the
opinion of that counsel, the Distribution requires, or, if made in the United
States, would require, registration under the Securities Act of 1933, that
counsel shall furnish to the Depositary a written opinion as to whether or not
there is a registration statement under the Securities Act of 1933 in effect
that will cover that Distribution.
The Company agrees with the Depositary that neither the
Company nor any company controlled by, controlling or under common control with
the Company will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933 or the Company delivers to the Depositary an opinion of United States
counsel, satisfactory to the Depositary, to the effect that, upon deposit, those
Shares will be eligible for public resale in the United States without further
registration under the Securities Act of 1933 .
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SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to any
fees and expenses reasonably incurred in seeking, enforcing or collecting such
indemnity and the fees and expenses of counsel) which may arise out of or in
connection with (a) any registration with the Commission of American Depositary
Shares or Deposited Securities or the offer or sale thereof in the United States
or (b) acts performed or omitted, pursuant to the provisions of or in connection
with this Deposit Agreement and of the Receipts, as the same may be amended,
modified or supplemented from time to time, (i) by either the Depositary or a
Custodian or their respective directors, employees, agents and affiliates,
except for any liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its directors, employees,
agents and affiliates.
The indemnities contained in the preceding paragraph shall not
extend to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of American Depositary Shares in
accordance with Section 2.09 and which would not otherwise have arisen had such
American Depositary Shares not been the subject of a Pre-Release pursuant to
Section 2.09; provided, however, that the indemnities provided in the preceding
paragraph shall apply to any such liability or expense (i) to the extent that
such liability or expense would have arisen had American Depositary Shares not
been the subject of a Pre-Release, or (ii) which may arise out of any
misstatement or alleged misstatement or omission or alleged omission in any
registration statement, proxy statement, prospectus (or placement memorandum),
or preliminary prospectus (or preliminary placement memorandum) relating to the
offer or sale of American Depositary Shares, except to the extent any such
liability or expense arises out of (i) information relating to the Depositary or
any Custodian (other than the Company), as applicable, furnished in writing and
not materially 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.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to its or their negligence or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall promptly (and in no event more than ten (10) days after receipt of notice
of such Proceeding) notify the party obligated to provide such indemnification
(the "Indemnitor") of such Proceeding. The failure of the Indemnitee to so
notify the Indemnitor shall not impair the Indemnitee's ability to seek
indemnification from the Indemnitor (but only for costs, expenses and
liabilities incurred after such notice) unless such failure adversely affects
the Indemnitor's ability to adequately oppose or defend such Proceeding. Upon
receipt of such notice from the Indemnitee, the Indemnitor shall be entitled to
participate in such Proceeding and, to the extent that it shall so desire and
provided no conflict of interest exists as specified in
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subparagraph (b) below or there are no other defenses available to Indemnitee as
specified in subparagraph (d) below, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnitee (in which case all attorney's fees and
expenses shall be borne by the Indemnitor and the Indemnitor shall in good faith
defend the Indemnitee). The Indemnitee shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be borne by the Indemnitee unless
(a) the Indemnitor agrees in writing to pay such fees and expenses, (b) the
Indemnitee shall have reasonably and in good faith concluded that there is a
conflict of interest between the Indemnitor and the Indemnitee in the conduct of
the defense of such action, (c) the Indemnitor fails, within ten (10) days prior
to the date the first response or appearance is required to be made in such
Proceeding, to assume the defense of such Proceeding with counsel reasonably
satisfactory to the Indemnitee or (d) there are legal defenses available to
Indemnitee that are different from or are in addition to those available to the
Indemnitor. No compromise or settlement of such Proceeding may be effected by
either party without the other party's consent unless (i) there is no finding or
admission of any violation of law and no effect on any other claims that may be
made against such other party and (ii) the sole relief provided is monetary
damages that are paid in full by the party seeking the settlement. Neither party
shall have any liability with respect to any compromise or settlement effected
without its consent, which shall not be unreasonably withheld. The Indemnitor
shall have no obligation to indemnify and hold harmless the Indemnitee from any
loss, expense or liability incurred by the Indemnitee as a result of a default
judgment entered against the Indemnitee unless such judgment was entered after
the Indemnitor agreed, in writing, to assume the defense of such Proceeding.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees, reasonably expenses and
out-of-pocket charges of the Depositary and those of any Registrar in accordance
with agreements in writing entered into between the Depositary and the Company
from time to time. The Depositary shall present its statement for such charges
and expenses to the Company once every three months. The charges and expenses of
the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares or by any party surrendering American
Depositary Shares or to whom American Depositary Shares 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 American
Depositary Shares or Deposited Securities or a delivery of American Depositary
Shares pursuant to Section 4.03), or by Owners, as applicable: (1) taxes and
other governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals hereunder, (3) such cable,
telex and facsimile transmission expenses as are expressly provided in this
Deposit Agreement, (4) such expenses as are incurred by the Depositary in the
conversion of foreign currency pursuant to Section 4.05, (5) a fee of $5.00 or
less per 100 American Depositary Shares (or portion thereof) for the delivery of
American Depositary Shares pursuant to Section 2.03, 4.03 or 4.04 and the
surrender of American Depositary Shares pursuant to Section 2.05 or 6.02, (6) a
fee of $.02 or less per American Depositary Share (or portion thereof) for any
cash distribution made pursuant to this
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Xxxxxxx Xxxxxxxxx, including, but not limited to Sections 4.01 through 4.04
hereof, (7) a fee for the distribution of securities pursuant to Section 4.02,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Owners, (8) in addition to any fee charged
under clause 6, a fee of $.02 or less per American Depositary Share (or portion
thereof) per annum for depositary services, which will be payable as provided in
clause 9 below, and (9) any other charges payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.06 and shall be payable at the sole
discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.09 hereof, may own and
deal in any class of securities of the Company and its affiliates and in
American Depositary Shares.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents,
records, bills and other data compiled during the term of this Deposit Agreement
at the times permitted by the laws or regulations governing the Depositary
unless the Company requests that such papers be retained for a longer period or
turned over to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for
issuance of American or global depositary shares or receipts so long as The Bank
of New York is acting as Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary
a list setting forth, to the actual knowledge of the Company, those persons or
entities who beneficially own Restricted Securities and the Company shall update
that list on a regular basis. The Company agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon.
ARTICLE 6.
AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary without the consent of Owners or holders in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile
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transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Owners, shall, however,
not become effective as to outstanding American Depositary Shares until the
expiration of thirty days after notice of such amendment shall have been given
to the Owners of outstanding American Depositary Shares. Every Owner and holder,
at the time any amendment so becomes effective, shall be deemed, by continuing
to hold such American Depositary Shares or any interest therein, 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 Owner to
surrender American Depositary Shares and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
SECTION 6.02 Termination.
The Company may at any time terminate this Deposit Agreement
by instructing the Depositary to mail a notice of termination to the Owners of
all American Depositary Shares then outstanding at least 60 days prior to the
termination date included in such notice. The Depositary may likewise terminate
this Deposit Agreement if at any time 30 days shall have expired after the
Depositary delivered to the Company a written resignation notice and if a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04; in such case the Depositary shall mail a notice of
termination to the Owners of all American Depositary Shares then outstanding at
least 30 days prior to the termination date. On and after the date of
termination, the Owner of American Depositary Shares will, upon (a) surrender of
such American Depositary Shares, (b) payment of the fee of the Depositary for
the surrender of American Depositary Shares referred to in Section 2.05, and (c)
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 those American Depositary Shares. If any American Depositary
Shares shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of American
Depositary Shares, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in this Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, upon surrender of American Depositary
Shares (after deducting, in each case, the fee of the Depositary for the
surrender of American Depositary Shares, any expenses for the account of the
Owner of such American Depositary Shares in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges).
At any time after the expiration of four months from the date
of termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it under this Deposit Agreement,
unsegregated and without liability for interest, for the pro rata benefit of the
Owners of American Depositary Shares that have not theretofore been surrendered,
such Owners thereupon becoming general creditors of the Depositary with respect
to such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting,
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in each case, the fee of the Depositary for the surrender of American Depositary
Shares, any expenses for the account of the Owner of such American Depositary
Shares in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges). Upon the termination of this
Deposit Agreement, the Company shall be discharged from all obligations under
this Deposit Agreement except for its obligations to the Depositary under
Sections 5.08 and 5.09.
ARTICLE 7.
MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any Owner or Holder during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 Owners and Holders as Parties; Binding Effect.
The Owners and Holders from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance of American Depositary Shares or any
interest therein.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to Agria Corporation,
Xxxx 000, 0/X, Xxxxxxx Xxxxxxxx, Xx. 00X, Xxxxx Xxxxxx Zhongguancun, Haidian
District, Beijing 100081, People's Republic of China, or any other place to
which the Company may have transferred its principal office with notice to the
Depositary.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if in English and personally delivered or sent by
mail or cable, telex or facsimile transmission confirmed by letter, addressed to
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention:
American Depositary Receipt Administration, or any other
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place to which the Depositary may have transferred its Corporate Trust Office
with notice to the Company.
Any and all notices to be given to any Owner shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for American
Depositary Shares of the Depositary, or, if such Owner shall have filed with the
Depositary a written request that notices intended for such Owner be mailed to
some other address, at the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service
of Process; Jury Trial Waiver.
The Company hereby (i) irrevocably designates and appoints Law
Debenture Corporate Services Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, X.X.
00000, as the Company's authorized agent upon which process may be served in any
suit or proceeding arising out of or relating to the Shares or Deposited
Securities, the American Depositary Shares, the Receipts or this Agreement, (ii)
consents and submits to the jurisdiction of any state or federal court in the
State of New York in which any such suit or proceeding may be instituted, and
(iii) agrees that service of process upon said authorized agent shall be deemed
in every respect effective service of process upon the Company in any such suit
or proceeding. The Company agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Company further agrees to take any and all action, including the
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment in full force and effect for so long
as any American Depositary Shares or Receipts remain outstanding or this
Agreement remains in force. 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.
EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER
DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE
DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR
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THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY
QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY).
SECTION 7.07 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted
and all rights hereunder and thereunder and provisions hereof and thereof shall
be governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of the Cayman Islands.
-29-
IN WITNESS WHEREOF, AGRIA CORPORATION and THE BANK OF NEW YORK
have duly executed this Deposit Agreement as of the day and year first set forth
above and all Owners and Holders shall become parties hereto upon acceptance by
them of American Depositary Shares or any interest therein.
AGRIA CORPORATION
By:[o]
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:[o]
Name:
Title:
-30-
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents
Two (2) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES OF
THE PAR VALUE OF $0.0000001 EACH OF
AGRIA CORPORATION
(INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS)
The Bank of New York, as depositary (hereinafter called the
"Depositary"), hereby certifies that___________ ________________________, or
registered assigns IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited ordinary shares (herein called "Shares") of AGRIA
CORPORATION, incorporated under the laws of THE CAYMAN ISLANDS (herein called
the "Company"). At the date hereof, each American Depositary Share represents
two (2) ordinary Shares deposited or subject to deposit under the Deposit
Agreement (as such term is hereinafter defined) at the Hong Kong office of The
Hongkong and Shanghai Banking Corporation Limited (herein called the
"Custodian"). The Depositary's Corporate Trust Office is located at a different
address than its principal executive office. Its Corporate Trust Office is
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive
office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1
1. THE DEPOSIT AGREEMENT.
This American Depositary Receipt is one of an issue (herein
called "Receipts"), all issued and to be issued upon the terms and conditions
set forth in the deposit agreement, dated as of [o], 2007 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and holders from time to time of American Depositary Shares issued thereunder,
each of whom by accepting American Depositary Shares agrees to become a party
thereto and become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights of Owners and holders 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 Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and are qualified
by and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary
of American Depositary Shares, and upon payment of the fee of the Depositary
provided in this Receipt, and subject to the terms and conditions of the Deposit
Agreement, the Owner of those American Depositary Shares is entitled to
delivery, to him or as instructed, of the amount of Deposited Securities at the
time represented by those American Depositary Shares. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates or account transfer
for Shares in the name of the Owner hereof or as ordered by him or by
certificates properly endorsed or accompanied by proper instruments or
instructions of transfer to such Owner or as ordered by him and (b) any other
securities, property and cash to which such Owner is then entitled in respect of
this Receipt to such Owner or as ordered by him. Such delivery will be made at
the option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof. Notwithstanding any other provision of the Deposit Agreement or
this Receipt, the surrender of outstanding American Depositary Shares and
withdrawal of Deposited Securities may be suspended only for (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,
and (iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the American Depositary Shares or to the withdrawal of the Deposited
Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
Transfers of American Depositary Shares may be registered on
the books of the
2
Depositary upon (i) in the case of certificated American Depositary Shares,
surrender of the Receipt evidencing those American Depositary Shares, by the
Owner in person or by a duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer or (ii) in the case of
uncertificated American Depositary Shares, receipt from the Owner of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10), and, in either case, duly stamped as may
be required by the laws of the State of New York and of the United States of
America and upon payment of funds for any applicable transfer taxes and the
expenses of the Depositary and upon compliance with such regulations, if any, as
the Depositary may establish for such purpose. This Receipt may be split into
other such Receipts, or may be combined with other such Receipts into one
Receipt, evidencing the same aggregate number of American Depositary Shares as
the Receipt or Receipts surrendered. The Depositary, upon surrender of a Receipt
for the purpose of exchanging for uncertificated American Depositary Shares,
shall cancel that Receipt and send the Owner a statement confirming that the
Owner is the Owner of the same number of uncertificated American Depositary
Shares that the surrendered Receipt evidenced. The Depositary, upon receipt of a
proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile as provided in Section 2.10 of the Deposit Agreement) from the
Owner of uncertificated American Depositary Shares for the purpose of exchanging
for certificated American Depositary Shares, shall execute and deliver to the
Owner a Receipt evidencing the same number of certificated American Depositary
Shares. As a condition precedent to the delivery, registration of transfer, or
surrender of any American Depositary Shares or split-up or combination of any
Receipt or withdrawal of any Deposited Securities, the Depositary, the
Custodian, or Registrar may require payment from the depositor of the Shares or
the presenter of the Receipt or instruction for registration of transfer or
surrender of American Depositary Shares not evidenced by 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 as provided in the Deposit Agreement, may require
the production of proof satisfactory to it as to the identity and genuineness of
any signature or other information it deems necessary and may also require
compliance with any regulations the Depositary may establish consistent with the
provisions of the Deposit Agreement.
The delivery of American Depositary Shares against deposit of
Shares generally or against deposit of particular Shares may be suspended, or
the transfer of American Depositary Shares in particular instances may be
refused, or the registration of transfer of outstanding American Depositary
Shares generally may be suspended, during any period when the transfer books of
the Depositary are closed, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of the Deposit Agreement, or for any other
reason, subject to the provisions of the following sentence. Without limitation
of the foregoing, the Depositary shall not knowingly accept for deposit under
the Deposit Agreement any Shares which would be required to be registered under
the provisions of the Securities Act of 1933 for public offer and sale in the
United States, unless a registration statement is in effect as to such Shares
for such offer and sale.
3
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable
with respect to any American Depositary Shares or any Deposited Securities
represented by any American Depositary Shares, such tax or other governmental
charge shall be payable by the Owner to the Depositary. The Depositary may
refuse to register any transfer of those American Depositary Shares or any
withdrawal of Deposited Securities represented by those American Depositary
Shares until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner any part or all of the
Deposited Securities represented by those American Depositary Shares, and may
apply such dividends or other distributions or the proceeds of any such sale in
payment of such tax or other governmental charge and the Owner shall remain
liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement
shall be deemed thereby to represent and warrant, that such Shares and each
certificate therefor, if applicable, are validly issued, fully paid,
nonassessable and free of any preemptive rights of the holders of outstanding
Shares and that the person making such deposit is duly authorized so to do.
Every such person shall also be deemed to represent that the deposit of such
Shares and the sale of American Depositary Shares representing such Shares by
that person are not restricted under the Securities Act of 1933. Such
representations and warranties shall survive the deposit of Shares and delivery
of American Depositary Shares.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or
holder may be required from time to time to file with the Depositary or the
Custodian such proof of citizenship or residence, exchange control approval, or
such information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
American Depositary Shares or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. If
requested in writing, the Depositary shall, as promptly as practicable, provide
the Company, at the expense of the Company, with copies of any such proofs,
certificates or other information it receives pursuant to this Article, unless
prohibited by applicable law. No Share shall be accepted for deposit unless
accompanied by evidence satisfactory to the Depositary that any necessary
approval has been granted by any governmental body in the Cayman Islands or in
the People's Republic of China, which is then performing the function of the
regulation of currency exchange.
7. CHARGES OF DEPOSITARY.
The Company agrees to pay the fees, reasonable expenses and
out-of-pocket charges of the Depositary and those of any Registrar only in
accordance with agreements in writing entered into between the Depositary and
the Company from time to time. The Depositary shall present its statement for
such charges and expenses to the Company once every
4
three months. The charges and expenses of the Custodian are for the sole account
of the Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares or by any party surrendering American
Depositary Shares or to whom American Depositary Shares 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 American
Depositary Shares or Deposited Securities or a delivery of American Depositary
Shares pursuant to Section 4.03 of the Deposit Agreement), or by Owners, as
applicable: (1) taxes and other governmental charges, (2) such registration fees
as may from time to time be in effect for the registration of transfers of
Shares generally on the Share register of the Company or Foreign Registrar and
applicable to transfers of Shares to or from the name of the Depositary or its
nominee or the Custodian or its nominee on the making of deposits or withdrawals
under the terms of the Deposit Agreement, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in the Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05 of the Deposit Agreement, (5) a fee of $5.00
or less per 100 American Depositary Shares (or portion thereof) for the delivery
of American Depositary Shares pursuant to Section 2.03, 4.03 or 4.04 of the
Deposit Agreement and the surrender of American Depositary Shares pursuant to
Section 2.05 or 6.02 of the Deposit Agreement, (6) a fee of $.02 or less per
American Depositary Share (or portion thereof) for any cash distribution made
pursuant to the Deposit Agreement, including, but not limited to Sections 4.01
through 4.04 of the Deposit Agreement, (7) a fee for the distribution of
securities pursuant to Section 4.02 of the Deposit Agreement, such fee being in
an amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Owners, (8) in addition to any fee charged under clause 6,
a fee of $.02 or less per American Depositary Share (or portion thereof) per
annum for depositary services, which will be payable as provided in clause 9
below, and (9) any other charges payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.06 of the Deposit Agreement and
shall be payable at the sole discretion of the Depositary by billing such Owners
for such charge or by deducting such charge from one or more cash dividends or
other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal
in any class of securities of the Company and its affiliates and in American
Depositary Shares.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the
Depositary may deliver American Depositary Shares prior to the receipt of Shares
pursuant to Section 2.02 of the Deposit Agreement (a "Pre-Release"). The
Depositary may, pursuant to Section 2.05 of the Deposit Agreement, deliver
Shares upon the surrender of American Depositary Shares that have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such American Depositary Shares
have been Pre-Released.
5
The Depositary may receive American Depositary Shares in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom American
Depositary Shares or Shares are to be delivered, that such person, or its
customer, owns the Shares or American Depositary Shares to be remitted, as the
case may be, (b) at all times fully collateralized with cash 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
number of Shares represented by American Depositary Shares which are outstanding
at any time as a result of Pre-Release will not normally exceed thirty percent
(30%) of the Shares deposited under the Deposit Agreement; 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 compensation
received by it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner
and Holder of this Receipt by accepting or holding the same consents and agrees
that when properly endorsed or accompanied by proper instruments of transfer,
shall be transferable as certificated registered securities under the laws of
New York. American Depositary Shares not evidenced by Receipts shall be
transferable as uncertificated registered securities under the laws of New York.
The Depositary, notwithstanding any notice to the contrary, may treat the Owner
of American Depositary Shares as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under the Deposit Agreement to any
Holder of a Receipt unless such Holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the
Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt
shall have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements
of the Securities Exchange Act of 1934 and, accordingly, files certain reports
with the Securities and Exchange Commission. Such materials will be available
for inspection and copying at the public reference facilities maintained by the
Commission located at Xxxx 0000, 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners at
its Corporate
6
Trust Office, as promptly as practicable after receipt, any reports, notices and
other communications, including any proxy soliciting material, received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company. The Depositary will also, upon written
request by the Company, send to Owners copies of such reports when furnished by
the Company pursuant to the Deposit Agreement. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
The Depositary will keep books, at its Corporate Trust Office,
for the registration of American Depositary Shares and transfers of American
Depositary Shares which at all reasonable times shall be open for inspection by
the Owners and the Company, provided that such inspection shall not be for the
purpose of communicating with Owners in the interest of a business or object
other than the business of the Company or a matter related to the Deposit
Agreement or the American Depositary Shares.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other
cash distribution on any Deposited Securities, the Depositary will, if at the
time of receipt thereof any amounts received in a foreign currency can in the
judgment of the Depositary be converted on a reasonable basis into United States
dollars transferable to the United States, and subject to the Deposit Agreement,
convert such dividend or distribution into dollars and will distribute the
amount thus received (net of the fees and expenses of the Depositary as provided
in Article 7 hereof and Section 5.09 of the Deposit Agreement) to the Owners
entitled thereto; provided, however, that in the event that the Company 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 or other governmental charges, the amount distributed to the
Owners of the American Depositary Shares representing such Deposited Securities
shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.09 of the
Deposit Agreement, whenever the Depositary receives any distribution other than
a distribution described in Sections 4.01, 4.03 or 4.04 of the Deposit
Agreement, the Depositary will cause the securities or property received by it
to be distributed to the Owners entitled thereto, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary such
distribution cannot be made proportionately among the Owners of Receipts
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees and expenses of the Depositary as provided in Article 7
hereof and Section 5.09 of the Deposit Agreement) will be distributed by the
Depositary to the Owners of Receipts entitled thereto all in the manner and
subject to the conditions described in Section 4.01 of the Deposit Agreement.
The Depositary may refuse to effect any distribution of securities under this
paragraph unless it has received an opinion of
7
United States counsel for the Company that is satisfactory to the Depositary
that the distribution does not require registration under the Securities Act.
The Depositary may sell, by public or private sale, an amount of securities or
other property it would otherwise distribute under this Article that is
sufficient to pay its fees and expenses in respect of that distribution.
If any distribution consists of a dividend in, or free
distribution of, Shares, the Depositary may deliver to the Owners entitled
thereto, an aggregate number of American Depositary Shares representing the
amount of Shares received as such dividend or free distribution, subject to the
terms and conditions of the Deposit Agreement with respect to the deposit of
Shares and the issuance of American Depositary Shares, including the withholding
of any tax or other governmental charge as provided in Section 4.11 of the
Deposit Agreement and the payment of the fees and expenses of the Depositary as
provided in Article 7 hereof and Section 5.09 of the Deposit Agreement (and the
Depositary may sell, by public or private sale, an amount of Shares received
sufficient to pay its fees and expenses in respect of that distribution). In
lieu of delivering fractional American Depositary Shares in any such case, the
Depositary will sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.01of the Deposit Agreement. If additional
American Depositary Shares are not so delivered, each American Depositary Share
shall thenceforth also represent the additional Shares distributed upon the
Deposited Securities represented thereby.
The Company or its agent will remit to the appropriate
governmental agencies in the Cayman Islands and the People's Republic of China
all amounts withheld and owing to such agencies. The Depositary will forward to
the Company or its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental agencies, and the Depositary or the Company or its agent may
file any such reports necessary to obtain benefits under the applicable tax
treaties for the Owners. 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 charge which the Depositary is
obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay any such taxes or charges, and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes or
charges to the Owners of Receipts entitled thereto.
13. RIGHTS.
In the event that the Company shall offer or cause to be
offered to the holders of any Deposited Securities any rights to subscribe for
additional Shares or any rights of any other nature, the Depositary shall have
discretion as to the procedure to be followed in making such rights available to
any Owners or in disposing of such rights on behalf of any Owners and making the
net proceeds available to such Owners or, if by the terms of such rights
offering or for any other reason, the Depositary may not either make such rights
available to any Owners or dispose of such rights and make the net proceeds
available to such Owners, then the Depositary shall allow the rights to lapse.
If at the time of the offering of any rights the Depositary determines in its
reasonable discretion that it is lawful and feasible to make such rights
available to all or certain Owners but not to other Owners, the Depositary may
distribute to any Owner to
8
whom it determines the distribution to be lawful and feasible, in proportion to
the number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be
distributed, if an Owner requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Owner under the Deposit Agreement, the Depositary will make such
rights available to such Owner upon written notice from the Company to the
Depositary that (a) the Company has elected in its sole discretion to permit
such rights to be exercised and (b) such Owner has executed such documents as
the Company has determined in its sole discretion are reasonably required under
applicable law.
If the Depositary has distributed warrants or other
instruments for rights to all or certain Owners, then upon instruction from such
an Owner pursuant to such warrants or other instruments to the Depositary from
such Owner to exercise such rights, upon payment by such Owner to the Depositary
for the account of such Owner of an amount equal to the purchase price of the
Shares to be received upon the exercise of the rights, and upon payment of the
fees and expenses of the Depositary and any other charges as set forth in such
warrants or other instruments, the Depositary shall, on behalf of such Owner,
exercise the rights and purchase the Shares, and the Company shall cause the
Shares so purchased to be delivered to the Depositary on behalf of such Owner.
As agent for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant
to Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to
such Owner. In the case of a distribution pursuant to the second paragraph of
this Article 13, such deposit shall be made, and Deposited Securities shall be
delivered, under depositary arrangements which provide for issuance of Deposited
Securities subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under applicable United States laws.
If the Depositary determines in its reasonable discretion that
it is not lawful and feasible to make such rights available to all or certain
Owners, it may sell the rights, warrants or other instruments in proportion to
the number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes
and governmental charges payable in connection with such rights and subject to
the terms and conditions of the Deposit Agreement) for the account of such
Owners otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Owners because of exchange restrictions or the date of delivery of any American
Depositary Shares or otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in the Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner requests the
9
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under the Securities Act of 1933, the Depositary shall
not effect such distribution unless it has received an opinion from recognized
counsel in the United States for the Company upon which the Depositary may rely
that such distribution to such Owner is exempt from such registration; provided,
however, that the Company shall have no obligation to cause its counsel to issue
such opinion at the request of such Owner.
The Depositary shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any American Depositary Shares or
otherwise and shall be net of any expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with
the approval or license of any government or agency thereof, the Depositary
shall file such application for approval or license, if any, as it may deem
desirable.
If at any time the Depositary shall determine that in its
judgment any foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary is
not obtainable without excessively burdensome or otherwise unreasonable efforts,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in
part, cannot be effected for distribution to some of the Owners entitled
thereto, the Depositary may in its discretion make such conversion and
distribution in Dollars to the extent permissible to the Owners entitled thereto
and may distribute the balance of the foreign currency received by the
Depositary to, or hold such balance uninvested and without liability for
interest thereon for the respective accounts of, the Owners entitled thereto.
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15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or whenever
rights shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which date shall be the same date, to the extent
practicable, as the record date for the Deposited Securities or if different, as
close thereto as practicable (a) for the determination of the Owners who shall
be (i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting or (iii) responsible for any fee
or charge assessed by the Depositary pursuant to the Deposit Agreement, or (b)
on or after which each American Depositary Share will represent the changed
number of Shares, subject to the provisions of the Deposit Agreement.
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16. VOTING OF DEPOSITED SECURITIES.
Upon receipt of notice of any meeting of holders of Shares or
other Deposited Securities, if requested in writing by the Company, the
Depositary shall, as soon as practicable thereafter, mail to the Owners of
Receipts a notice, the form of which notice shall be in the sole discretion of
the Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary from the Company, (b) a statement
that the Owners as of the close of business on a specified record date will be
entitled, subject to any applicable provision of the People's Republic of China
and Cayman Islands law and of the articles of association or similar document of
the Company, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given including an express
indication that such instruction may be given or deemed given in accordance with
the last sentence of this paragraph if no instruction is received, to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of an Owner on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by such American Depositary
Shares in accordance with the instructions set forth in such request. The
Depositary shall not vote or attempt to exercise the right to vote that attaches
to the Shares or other Deposited Securities, other than in accordance with such
instructions or deemed instructions. If no instructions are received by the
Depositary from any Owner with respect to any of the Deposited Securities
represented by the American Depositary Shares evidenced by such Owner's Receipts
on or before the date established by the Depositary for such purpose, the
Depositary shall deem such Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such Deposited Securities; provided,
that no such instruction shall be deemed given and no such discretionary proxy
shall be given with respect to any matter as to which the Company informs the
Depositary (and the Company agrees to provide such information as promptly as
practicable in writing) that (x) the Company does not wish such proxy given, (y)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares.
There can be no assurance that Owners generally or any Owner
in particular will receive the notice described in the preceding paragraph
sufficiently prior to the instruction cutoff date to ensure that the Depositary
will vote the Shares or Deposited Securities in accordance with the provisions
set forth in the preceding paragraph.
In order to give Owners a reasonable opportunity to instruct
the Depositary as to the exercise of voting rights relating to Deposited
Securities, if the Company will request the Depositary to act under this
Article, the Company shall give the Depositary notice of any such meeting and
details concerning the matters to be voted upon not less than 45 days prior to
the meeting date.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
Upon any change in nominal value, change in par value,
split-up, consolidation,
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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, or upon the redemption or
cancellation by the Company of the Deposited Securities, any securities, cash or
property which shall be received by the Depositary or a Custodian in exchange
for, in conversion of, in lieu of or in respect of Deposited Securities shall be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent, in addition to the existing
Deposited Securities, the right to receive the new Deposited Securities so
received, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their
respective directors, employees, agents or affiliates shall incur any liability
to any Owner or Holder, (i) if by reason of any provision of any present or
future law or regulation of the United States, the People's Republic of China or
any other country, or of any governmental or regulatory authority, or by reason
of any provision, present or future, of the articles of association or similar
document of the Company, or by reason of any provision of any securities issued
or distributed by the Company, or any offering or distribution thereof, or by
reason of any act of God or war or terrorism or other circumstances beyond its
control, the Depositary or the Company shall be prevented, delayed or forbidden
from or be subject to any civil or criminal penalty on account of doing or
performing any act or thing which by the terms of the Deposit Agreement or the
Deposited Securities it is provided shall be done or performed, (ii) by reason
of any non-performance or delay, caused as aforesaid, in the performance of any
act or thing which by the terms of the Deposit Agreement it is provided shall or
may be done or performed, (iii) by reason of any exercise of, or failure to
exercise, any discretion provided for in the Deposit Agreement, (iv) for the
inability of any Owner or Holder to benefit from any distribution, offering,
right or other benefit which is made available to holders of Deposited
Securities but is not, under the terms of the Deposit Agreement, made available
to Owners or holders, or (v) for any special, consequential or punitive damages
for any breach of the terms of the Deposit Agreement. Where, by the terms of a
distribution pursuant to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or
an offering or distribution pursuant to Section 4.04 of the Deposit Agreement,
such distribution or offering may not be made available to Owners of Receipts,
and the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or Holders, except that they agree to perform their obligations
specifically set forth in the Deposit Agreement without negligence or bad faith.
The Depositary shall not be subject to any liability with respect to the
validity or worth of the Deposited Securities. Neither the Depositary nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit, or other proceeding in respect of any Deposited Securities or in
respect of the American Depositary Shares, on behalf of any Owner or Holder or
any other person. Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for
13
deposit, any Owner or holder, or any other person believed by it in good faith
to be competent to give such advice or information. Neither the Depositary nor
the Company shall be liable for any action or nonaction by it in reliance upon
any documents it believes in good faith to be genuine and to have been signed or
presented by the proper party. The Depositary shall not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities or
for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith. The Depositary
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in
connection with a matter arising wholly after the removal or resignation of the
Depositary, provided that in connection with the issue out of which such
potential liability arises, the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary. The Depositary shall not
be liable for the acts or omissions made by any securities depository, clearing
agency or settlement system in connection with or arising out of book-entry
settlement of Deposited Securities or otherwise. The Company agrees to indemnify
the Depositary, its directors, employees, agents and affiliates and any
Custodian against, and hold each of them harmless from, any liability or expense
(including, but not limited to any fees and expenses reasonably incurred in
seeking, enforcing or collecting such indemnity and the fees and expenses of
counsel) which may arise out of or in connection with (a) any registration with
the Commission of American Depositary Shares or Deposited Securities or the
offer or sale thereof in the United States or (b) acts performed or omitted,
pursuant to the provisions of or in connection with the Deposit Agreement and of
the Receipts, as the same may be amended, modified or supplemented from time to
time, (i) by either the Depositary or a Custodian or their respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them, or (ii) by the Company or
any of its directors, employees, agents and affiliates. No disclaimer of
liability under the Securities Act of 1933 is intended by any provision of the
Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT
OF SUCCESSOR CUSTODIAN.
The Depositary may at any time resign as Depositary under the
Deposit Agreement 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 120 days
prior written notice of such removal, to become effective upon the later of (i)
the 120th 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. Whenever the Depositary in its discretion
determines that it is in the best interest of the Owners to do so, it may
appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary without the consent of Owners or holders in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
14
substantial existing right of Owners, shall, however, not become effective as to
outstanding American Depositary Shares until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
American Depositary Shares. Every Owner and holder of American Depositary
Shares, at the time any amendment so becomes effective, shall be deemed, by
continuing to hold such American Depositary Shares or any interest therein, 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 Owner
to surrender American Depositary Shares and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Company may terminate the Deposit Agreement by instructing
the Depositary to mail notice of termination to the Owners of all American
Depositary Shares then outstanding at least 60 days prior to the termination
date included in such notice. The Depositary may likewise terminate the Deposit
Agreement, if at any time 30 days shall have expired after the Depositary
delivered to the Company a written resignation notice and if a successor
depositary shall not have been appointed and accepted its appointment as
provided in the Deposit Agreement; in such case the Depositary shall mail a
notice of termination to the Owners of all American Depositary Shares then
outstanding at least 30 days prior to the termination date. On and after the
date of termination, the Owner of American Depositary Shares will, upon (a)
surrender of such American Depositary Shares, (b) payment of the fee of the
Depositary for the surrender of American Depositary Shares referred to in
Section 2.05, and (c) 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 those American Depositary Shares. If any American
Depositary Shares shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
American Depositary Shares, shall suspend the distribution of dividends to the
Owners 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 and other property as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, upon surrender of American Depositary
Shares (after deducting, in each case, the fee of the Depositary for the
surrender of American Depositary Shares, any expenses for the account of the
Owner of such American Depositary Shares in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of four months from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it thereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
American Depositary Shares that have not theretofore been surrendered, such
Owners thereupon becoming general creditors of the Depositary with respect to
such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of American Depositary Shares, any expenses for the
account of the Owner of such American Depositary Shares in accordance with the
terms and conditions of the
15
Deposit Agreement, and any applicable taxes or governmental charges). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary with respect to indemnification, charges, and expenses.
22. DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION
SYSTEM
(a) Notwithstanding the provisions of Section 2.04 of the
Deposit Agreement, the parties acknowledge that the Direct Registration System
("DRS") and Profile Modification System ("Profile") shall apply to
uncertificated American Depositary Shares upon acceptance thereof to DRS by DTC.
DRS is the system administered by DTC pursuant to which the Depositary may
register the ownership of uncertificated American Depositary Shares, which
ownership shall be evidenced by periodic statements issued by the Depositary to
the Owners entitled thereto. Profile is a required feature of DRS which allows a
DTC participant, claiming to act on behalf of an Owner of American Depositary
Shares, to direct the Depositary to register a transfer of those American
Depositary Shares to DTC or its nominee and to deliver those American Depositary
Shares to the DTC account of that DTC participant without receipt by the
Depositary of prior authorization from the Owner to register such transfer.
(b) In connection with and in accordance with the arrangements
and procedures relating to DRS/Profile, the parties understand that the
Depositary will not verify, determine or otherwise ascertain that the DTC
participant which is claiming to be acting on behalf of an Owner in requesting a
registration of transfer and delivery as described in subsection (a) has the
actual authority to act on behalf of the Owner (notwithstanding any requirements
under the Uniform Commercial Code). For the avoidance of doubt, the provisions
of Sections 5.03 and 5.08 of the Deposit Agreement shall apply to the matters
arising from the use of the DRS. The parties agree that the Depositary's
reliance on and compliance with instructions received by the Depositary through
the DRS/Profile System and in accordance with the Deposit Agreement shall not
constitute negligence or bad faith on the part of the Depositary.
23. SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER
In the Deposit Agreement, the Company has (i) appointed Law
Debenture Corporate Services Inc., 000 Xxxxxxx Xxxxxx, 0xx Avenue, 4th Floor,
New York, N.Y. 10017, as the Company's authorized agent upon which process may
be served in any suit or proceeding arising out of or relating to the Shares or
Deposited Securities, the American Depositary Shares, the Receipts or this
Agreement, (ii) consented and submitted to the jurisdiction of any state or
federal court in the State of New York in which any such suit or proceeding may
be instituted, and (iii) agreed that service of process upon said authorized
agent shall be deemed in every respect effective service of process upon the
Company in any such suit or proceeding. The Company agrees to deliver, upon the
execution and delivery of the Deposit Agreement, a written acceptance by such
agent of its appointment as such agent. The Company further agrees to take any
and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment
16
in full force and effect for so long as any American Depositary Shares or
Receipts remain outstanding or the Deposit Agreement remains in force. 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.
EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER
DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE
DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE
BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING
EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
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