EXHIBIT 4.3
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CHINA TECHFAITH WIRELESS COMMUNICATION TECHNOLOGY LIMITED
AND
THE BANK OF NEW YORK
AS DEPOSITARY
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
DATED AS OF ________, 2005
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TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS............................................................................1
SECTION 1.1 American Depositary Shares....................................................1
SECTION 1.2 Article; Section..............................................................2
SECTION 1.3 Beneficial Owner..............................................................2
SECTION 1.4 Commission....................................................................2
SECTION 1.5 Company.......................................................................2
SECTION 1.6 Custodian.....................................................................2
SECTION 1.7 Delivery; Surrender...........................................................2
SECTION 1.8 Deposit Agreement.............................................................3
SECTION 1.9 Depositary; Corporate Trust Office............................................3
SECTION 1.10 Deposited Securities..........................................................3
SECTION 1.11 Dollars.......................................................................3
SECTION 1.12 Foreign Registrar.............................................................3
SECTION 1.13 Owner.........................................................................3
SECTION 1.14 Receipts......................................................................3
SECTION 1.15 Registrar.....................................................................3
SECTION 1.16 Restricted Securities.........................................................3
SECTION 1.17 Securities Act................................................................4
SECTION 1.18 Shares........................................................................4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF RECEIPTS............................................................................4
SECTION 2.1 Form and Transferability of Receipts..........................................4
SECTION 2.2 Deposit of Shares.............................................................5
SECTION 2.3 Execution and Delivery of Receipts............................................6
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts....................6
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares................................7
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender of Receipts.....8
SECTION 2.7 Lost Receipts, etc............................................................9
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts..........................9
SECTION 2.9 Pre-Release of Receipts.......................................................9
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS.......................10
SECTION 3.1 Filing Proofs, Certificates and Other Information............................10
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SECTION 3.2 Liability of Owner for Taxes.................................................10
SECTION 3.3 Warranties on Deposit of Shares..............................................10
ARTICLE 4. THE DEPOSITED SECURITIES..............................................................11
SECTION 4.1 Cash Distributions...........................................................11
SECTION 4.2 Distributions Other Than Cash, Shares or Rights..............................11
SECTION 4.3 Distributions in Shares......................................................12
SECTION 4.4 Rights.......................................................................12
SECTION 4.5 Conversion of Foreign Currency...............................................14
SECTION 4.6 Fixing of Record Date........................................................15
SECTION 4.7 Voting of Deposited Securities...............................................15
SECTION 4.8 Changes Affecting Deposited Securities.......................................16
SECTION 4.9 Reports......................................................................16
SECTION 4.10 Lists of Owners..............................................................16
SECTION 4.11 Withholding..................................................................17
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY........................................17
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary...................17
SECTION 5.2 Prevention or Delay in Performance by the Depositary or Company..............18
SECTION 5.3 Obligations of the Depositary, the Custodian and the Company.................18
SECTION 5.4 Resignation and Removal of the Depositary....................................19
SECTION 5.5 The Custodians...............................................................20
SECTION 5.6 Notices and Reports..........................................................20
SECTION 5.7 Distribution of Additional Shares, Rights, etc...............................21
SECTION 5.8 Indemnification..............................................................21
SECTION 5.9 Charges of Depositary........................................................23
SECTION 5.10 Retention of Depositary Documents............................................24
SECTION 5.11 Exclusivity..................................................................24
SECTION 5.12 List of Restricted Securities Owners.........................................24
ARTICLE 6. AMENDMENT AND TERMINATION.............................................................24
SECTION 6.1 Amendment....................................................................24
SECTION 6.2 Termination..................................................................24
ARTICLE 7. MISCELLANEOUS.........................................................................25
SECTION 7.1 Counterparts.................................................................25
SECTION 7.2 No Third Party Beneficiaries.................................................26
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SECTION 7.3 Severability.................................................................26
SECTION 7.4 Owners and Beneficial Owners as Parties; Binding Effect......................26
SECTION 7.5 Notices......................................................................26
SECTION 7.6 Governing Law................................................................27
SECTION 7.7 Submission to Jurisdiction; Appointment of Agent for Service of Process......27
SECTION 7.8 Arbitration..................................................................27
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EXHIBIT 4.3
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of __________, 2005 among CHINA
TECHFAITH WIRELESS COMMUNICATION TECHNOLOGY LIMITED, 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
Beneficial Owners from time to time of American Depositary Receipts 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 1.1 American Depositary Shares.
The term "American Depositary Shares" shall mean the
securities representing the interests in the Deposited Securities and evidenced
by the Receipts issued hereunder. Each American Depositary Share shall represent
the number of Shares specified in Exhibit A annexed hereto, until there shall
occur a distribution upon Deposited Securities covered by Section 4.3 or a
change in Deposited Securities covered by Section 4.8 with respect to which
additional Receipts are not executed and delivered, and thereafter American
Depositary Shares shall evidence the amount of Shares or Deposited Securities
specified in such Sections.
SECTION 1.2 Article; Section.
Wherever references are made in this Deposit Agreement to an
"Article" or "Articles" or to a "Section" or "Sections", such references shall
mean an article or articles or a section or sections of this Deposit Agreement,
unless otherwise required by the context.
SECTION 1.3 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from
time to time any beneficial interest in the American Depositary Shares evidenced
by any Receipt.
SECTION 1.4 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 1.5 Company.
The term "Company" shall mean China Techfaith Wireless
Communication Technology Limited, incorporated under the laws of the Cayman
Islands, and its successors.
SECTION 1.6 Custodian.
The term "Custodian" shall mean the principal 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 5.5, as substitute or additional custodian or custodians
hereunder, as the context shall require and shall also mean all of them
collectively.
SECTION 1.7 Delivery; Surrender.
(a) The term "deliver", or its noun form, when used with
respect to Shares, shall mean (i) one or more book-entry transfers to an account
or accounts maintained with a depository institution authorized under applicable
law to effect book-entry transfers of such securities or (ii) the physical
transfer of certificates representing Shares.
(b) The term "deliver", or its noun form, when used with
respect to Receipts, shall mean (i) one or more book-entry transfers of American
Depositary Shares to an account or accounts at The Depository Trust Company
("DTC") designated by the person entitled to such delivery or (ii) if requested
by the person entitled to such delivery, delivery at the Corporate Trust Office
of the Depositary of one or more Receipts.
(c) The term "surrender", when used with respect to Receipts,
shall mean (i) one or more book-entry transfers of American Depositary Shares to
the DTC account of the Depositary or (ii) surrender to the Depositary at its
Corporate Trust Office of one or more Receipts.
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SECTION 1.8 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 1.9 Depositary; Corporate Trust Office.
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 Agreement is 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
SECTION 1.10 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 and any and all other securities, property and cash received by the
Depositary or the Custodian in respect thereof and at such time held hereunder,
subject as to cash to the provisions of Section 4.5.
SECTION 1.11 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.12 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 appointed agent of the Company for the
transfer and registration of Shares.
SECTION 1.13 Owner.
The term "Owner" shall mean the person in whose name a Receipt
is 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 American Depositary Shares.
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, which shall
be appointed by the Depositary to register Receipts and transfers of Receipts as
herein provided.
SECTION 1.16 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or
Receipts representing such Shares, which are acquired directly or indirectly
from the Company or its affiliates (as defined in Rule 144 under the Securities
Act) in a transaction or chain of transactions not involving any public offering
or which are subject to resale limitations
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under Regulation D under that Act or both, or which are held by an officer,
director (or persons performing similar functions) or other affiliate of the
Company, or which would require registration under the Securities Act in
connection with the public offer and sale thereof in the United States, or which
are subject to other restrictions on sale or deposit under the laws of the
United States, the Cayman Islands or Hong Kong, or under a shareholder agreement
or the Memorandum and Articles of Association of the Company.
SECTION 1.17 Securities Act.
The term "Securities Act" 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 in registered
form of the Company, heretofore validly issued and outstanding and fully paid,
nonassessable and that were not issued in violation of any pre-emptive rights of
the holders of outstanding Shares or hereafter validly issued and outstanding
and fully paid, nonassessable and that were not issued in violation of any
pre-emptive rights of the holders of outstanding Shares or interim certificates
representing such Shares.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY,
TRANSFER AND SURRENDER OF RECEIPTS.
SECTION 2.1 Form and Transferability of Receipts.
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 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 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 or facsimile signature of a duly authorized officer
of the Registrar. The Depositary shall maintain books on which each Receipt so
executed and delivered as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts bearing the manual or facsimile signature
of a duly authorized signatory of the Depositary who was at any time a proper
signatory of the Depositary shall bind the Depositary, notwithstanding that such
signatory has ceased to hold such office prior to the execution and delivery of
such Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
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
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which any particular Receipts are subject by reason of the date of issuance of
the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed or accompanied by proper instruments
of transfer, shall be transferable by delivery with the same effect as in the
case of a negotiable instrument under the laws of New York; provided, however,
that the Depositary, notwithstanding any notice to the contrary, may treat the
Owner thereof 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.
SECTION 2.2 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 instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may reasonably 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 execute and deliver to, or upon the written order
of, the person or persons stated in such order, a Receipt or Receipts for 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 Hong Kong which is then performing the function of the
regulation of currency exchange. If required by the Depositary, Shares presented
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 above specified, 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
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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 2.3 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to
Section 2.2 hereunder (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
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), together with the other documents
required as above specified, such Custodian shall notify the Depositary of such
deposit and the person or persons to whom or upon whose written order a Receipt
or Receipts are deliverable in respect thereof and the number of American
Depositary Shares to be evidenced thereby. 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. Upon receiving such notice from such
Custodian, or upon the receipt of Shares by the Depositary, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver at its Corporate Trust Office, to or upon the order of the person or
persons entitled thereto, a Receipt or Receipts, registered in the name or names
and evidencing any authorized number of American Depositary Shares requested by
such person or persons, but only upon payment to the Depositary of the fees and
expenses of the Depositary for the execution and delivery of such Receipt or
Receipts as provided in Section 5.9, and of all taxes and governmental charges
and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
SECTION 2.4 Transfer of Receipts; Combination and Split-up
of Receipts.
The Depositary, subject to the terms and conditions of this
Deposit Agreement, shall register transfers of Receipts on its transfer books
from time to time, upon any surrender of a Receipt, by the Owner in person or by
a duly authorized attorney, properly endorsed or accompanied by proper
instruments of transfer, and 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 execute a new Receipt or Receipts and deliver the same 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.
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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 transfers, 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
Receipts 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 2.4 to give notice in writing to the Depositary
accepting such appointment and agreeing to abide by the applicable terms of this
Deposit Agreement.
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares.
\
Upon surrender at the Corporate Trust Office of the Depositary
of a Receipt for the purpose of withdrawal of the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt, and
upon payment of the fee of the Depositary for the surrender of Receipts as
provided in Section 5.9 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 such Receipt shall be entitled to delivery, to him or upon his
order, of the amount of Deposited Securities at the time represented by the
American Depositary Shares evidenced by such Receipt. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates for Shares in the
name of such Owner or as ordered by him or by certificates properly endorsed or
accompanied by proper instruments 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 such Receipts to such Owner or as ordered by him. 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, and if the Depositary so requires, the Owner thereof shall
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. Thereupon the
Depositary shall direct the Custodian to deliver at the office of such
Custodian, subject to Sections 2.6, 3.1 and 3.2 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 American
Depositary Shares evidenced by such Receipt, 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 the American Depositary Shares evidenced by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
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At the request, risk and expense of any Owner so surrendering
a Receipt, 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 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 Receipts under this Section 2.5, (ii) in a
surrender of the Deposited Securities to the Company or its agent in a
transaction to which Section 4.8 applies or (iii) in connection with a sale of
the Deposited Securities permitted under Section 3.2, 4.3, 4.4, 4.11 or 6.2.
SECTION 2.6 Limitations on Execution and Delivery, Transfer
and Surrender of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination or surrender 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
of a sum sufficient to reimburse it for any tax, stamp duty 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 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 2.6.
The delivery of Receipts against deposits of Shares generally
or against deposits of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed as provided in Section 5.1, 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
Section 7.9. Notwithstanding any other provision of this Deposit Agreement or
the Receipts, the surrender of outstanding Receipts 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 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 Receipts or to the withdrawal of the
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Deposited Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares
required to be registered under the provisions of the Securities Act for public
sale in the United States, unless a registration statement is in effect as to
such Shares.
SECTION 2.7 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 2.8 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 2.9 Pre-Release of Receipts.
The Depositary may, notwithstanding Section 2.3, execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.2 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.5, deliver Shares upon
the receipt and cancellation of Receipts which have been Pre-Released, whether
or not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such Receipt has been Pre-Released. The Depositary may
receive Receipts 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 Receipts or Shares are to be delivered, that such person, or
its customer, owns the Shares or Receipts 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 hereunder; 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.
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ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS OF RECEIPTS.
SECTION 3.1 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or
Beneficial Owner of a Receipt 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 Receipt 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 3.2 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 Receipt or any Deposited
Securities represented by any Receipt, such tax or other governmental charge
shall be payable by the Owner of such Receipt to the Depositary. The Depositary
may refuse to effect any transfer of such Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner thereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, 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 Receipt shall remain liable for any deficiency.
SECTION 3.3 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 were not issued in violation of any pre-emptive 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 Shares are not, and American Depositary Shares representing the Shares would
not be, Restricted Securities. All representations and warranties deemed made
under this Section 3.3 shall survive the deposit of Shares and delivery or
surrender of Receipts.
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ARTICLE 4. THE DEPOSITED SECURITIES.
SECTION 4.1 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 4.5, 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 5.9 hereof, if applicable) 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, the amount distributed to the
Owner of the Receipts evidencing 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 of Receipts.
SECTION 4.2 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Section 4.11 and Section 5.9,
whenever the Depositary shall receive any distribution other than a distribution
described in Sections 4.1, 4.3 or 4.4, the Depositary shall, subject to all
applicable laws, 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 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 in order to be distributed to Owners or Beneficial Owners) 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
11
5.9) 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.
SECTION 4.3 Distributions in Shares.
If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Shares, the Depositary may, and shall if
the Company shall so request in writing, distribute to the Owners of outstanding
Receipts entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively,
additional Receipts evidencing 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
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of fees and
expenses of the Depositary as provided in Section 5.9. In lieu of delivering
Receipts for fractional American Depositary Shares in any such case, the
Depositary shall use reasonable efforts to sell the amount of Shares represented
by the aggregate of such fractions and distribute any net proceeds to the Owners
entitled to them, all in the manner and subject to the conditions described in
Section 4.1. If additional Receipts are not so distributed, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.4 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 entitled to them or in disposing of such rights on behalf of any
Owners otherwise entitled to them 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 Owners or to 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 of Receipts requests the distribution of warrants or
other instruments in order to exercise the rights allocable to the American
Depositary Shares of such Owner
12
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 2.2 of this Deposit Agreement, and shall, pursuant
to Section 2.3 of this Deposit Agreement, execute and deliver Receipts to such
Owner. In the case of a distribution pursuant to the second paragraph of this
section, such Receipts shall be legended in accordance with applicable U.S.
laws, and shall be subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under such 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 5.9 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 Receipt 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 with respect to a distribution to Owners
or are registered under the provisions of such Act; provided, however, 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 of Receipts requests distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under the Securities Act, 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
13
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 reasonable
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 4.5 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 Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.9.
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, or if there are foreign exchange controls in place
that prohibit such conversion, 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
14
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 4.6 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 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
receive notice of any meeting of holders of Shares or other Deposited Securities
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 or (ii) entitled to give instructions for the
exercise of voting rights at any such, (b) on or after which each American
Depositary Share will represent the changed number of Shares or (c) for any
other matter. Subject to the provisions of Sections 4.1 through 4.5 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 4.7 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 discretion of the Depositary
and shall contain (a) such information as is contained in such notice of
meeting, and (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
Hong Kong and Cayman Islands law and of the Memorandum and Articles of
Association 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. Upon the
written request of an Owner of a Receipt on such record date, received on or
before the date established by the Depositary for such purpose (the "Instruction
Date"), 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 evidenced by such Receipt 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 such Shares or other
Deposited Securities other than in accordance with such instructions or deemed
instructions.
15
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 requests the Depositary to act under the preceding
paragraph, the Company shall give the Depositary notice of any such meeting not
less than 30 days prior to the meeting date.
There can be no assurance that Owners generally or any Owner
in particular will receive the notice described in the first paragraph of this
Section 4.7 sufficiently prior to the Instruction Date to ensure that the
Depositary will vote the Shares or Deposited Securities in accordance with the
provisions of that paragraph.
SECTION 4.8 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.3 do not
apply, 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, any securities which shall be
received by the Depositary or a Custodian in exchange for or in conversion 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, if any, the new
Deposited Securities so received in exchange or conversion, 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 4.9 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 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 shall also send to the
Owners copies of such reports furnished by the Company pursuant to Section 5.6.
Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English.
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 Receipts are registered on the books of the Depositary.
16
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 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 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 5.1 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 Receipts and transfers of Receipts 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 this Deposit Agreement or the Receipts.
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 Receipts or the American Depositary Shares evidenced
thereby 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 American Depositary Shares in accordance with any requirements of
that exchange or exchanges. The Depositary shall require each Registrar and
co-registrar that it appoints under this Section 5.1 to give
17
notice in writing to the Depositary accepting such appointment and agreeing to
abide by the applicable terms of this Deposit Agreement.
SECTION 5.2 Prevention or Delay in Performance by the
Depositary or Company.
Neither the Depositary nor the Company nor any of their
respective directors, officers, employees, agents or affiliates shall incur any
liability to any Owner or Beneficial Owner of any Receipt, 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 Memorandum and Articles of Association 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; nor shall the Depositary or the Company or
any of their respective directors, officers, employees, agents or affiliates
incur any liability to any Owner or Beneficial Owner of any Receipt by reason of
any non-performance 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, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement. Where, by the
terms of a distribution pursuant to Sections 4.1, 4.2, or 4.3 of the Deposit
Agreement, or an offering or distribution pursuant to Section 4.4 of the Deposit
Agreement, 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, in each such
case without liability to the Company or the Depositary.
SECTION 5.3 Obligations of the Depositary, the Custodian and
the Company.
Neither the Company, nor its directors, officers, employees
and agents assume any obligation nor shall it or any of them be subject to any
liability under this Deposit Agreement to Owners or Beneficial Owners, except
that the Company agrees to perform its obligations specifically set forth in
this Deposit Agreement without negligence or bad faith.
Neither the Depositary nor its directors, officers, employees
and agents assume any obligation nor shall it or any of them be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner of any
Receipt (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.
18
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 Receipts
that in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses and liability shall be furnished as
often as may be required, and the Custodian shall not be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary.
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.
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 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 is
intended by any provision of this Deposit Agreement.
SECTION 5.4 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, which shall become effective upon
the later to occur of (i) the 120th day after delivery of the notice to the
Depositary or (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 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,
19
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 5.5 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 the
effectiveness of such resignation there would 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 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 5.6 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
20
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 regulation 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 5.7 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 entity or person 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.
SECTION 5.8 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, the
fees and expenses of counsel) which may arise out of (a) any registration with
the Commission of Receipts, 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 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
21
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 Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expense of
counsel), 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 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 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
22
against the Indemnitee unless such judgment was entered after the Indemnitor
agreed, in writing, to assume the defense of such Proceeding.
SECTION 5.9 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 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 Receipts or to
whom Receipts 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 Receipts or Deposited Securities or a distribution of Receipts
pursuant to Section 4.3), or by Owners, as applicable: (1) taxes, stamp duty 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 4.5, (5) a fee of $5.00 or
less per 100 American Depositary Shares (or portion thereof) for the execution
and delivery of Receipts pursuant to Section 2.3, 4.3 or 4.4 and the surrender
of Receipts pursuant to Section 2.5 or 6.2, (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 4.1
through 4.4 hereof, (7) a fee for the distribution of securities pursuant to
Section 4.2, 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) a fee of
$.02 or less per American Depositary Share (or portion thereof) for depositary
services, which will accrue on the last day of each calendar year and which will
be payable as provided in clause (9) below; provided, however, that no fee will
be assessed under this clause (8) to the extent a fee of $.02 was charged
pursuant to clause (6) above during that calendar year and (9) any other charge
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 4.6 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).
23
The Depositary, subject to Section 2.9 hereof, may own and
deal in any class of securities of the Company and its affiliates and in
Receipts.
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 reasonably requests that such papers be retained for a longer
period.
SECTION 5.11 Exclusivity.
Subject to Sections 5.4 and 6.2, the Company agrees not to
appoint any other depositary for issuance of American or global depositary
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. 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 6.1 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 and Beneficial
Owners 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 substantial existing right of Owners, shall, however, not become
effective as to outstanding Receipts until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner at the time any amendment so becomes effective shall be
deemed, by continuing to hold such Receipt, 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 of any Receipt to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
SECTION 6.2 Termination.
The Depositary shall at any time at the direction of the
Company terminate this Deposit Agreement by mailing notice of such termination
to the Owners of all Receipts then outstanding at least 30 days prior to the
date fixed in such notice for such
24
termination. The Depositary may likewise terminate this Deposit Agreement by
mailing notice of such termination to the Company and the Owners of all Receipts
then outstanding if at any time 60 days shall have expired after the Depositary
shall have delivered to the Company a written notice of its election to resign
and a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4. On and after the date of termination,
the Owner of a Receipt will, upon (a) surrender of such Receipt at the Corporate
Trust Office of the Depositary, (b) payment of the fee of the Depositary for the
surrender of Receipts referred to in Section 2.5, 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 the
American Depositary Shares evidenced by such Receipt. If any Receipts shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of Receipts, 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, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt 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 six 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 hereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
Receipts which 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 for its obligations to the Company under
Section 5.8 and to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Owner of such Receipt 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 5.8 and
5.9 hereof.
ARTICLE 7. MISCELLANEOUS.
SECTION 7.1 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
25
Depositary and the Custodians and shall be open to inspection by any Owner or
Beneficial Owner of a Receipt during business hours.
SECTION 7.2 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto (which shall include the Owners and Beneficial Owners) and shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person, except as otherwise specifically provided in this Agreement
with respect to co-transfer agents and the Custodian.
SECTION 7.3 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 7.4 Owners and Beneficial Owners as Parties; Binding
Effect.
The Owners and Beneficial Owners of Receipts 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 thereof.
SECTION 7.5 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 China Techfaith
Wireless Communication Technology Limited, 3/F M8 West No. 1 Jiu Xian Qiao East
Road, Xxxx Xxxx Xxxxxxxx, Xxxxxxx 000000, Xxxxxx'x Xxxxxxxx of China, Attention:
CEO, Facsimile: (00-00) 0000-0000, 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, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, or any other 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 Receipts 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.
26
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 7.6 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.
SECTION 7.7 Submission to Jurisdiction; Appointment of Agent
for Service of Process.
The Company hereby (i) irrevocably designates and appoints CT
Corporation System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, in
the State of New York, as the Company's authorized agent upon which process may
be served in any suit 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.
SECTION 7.8 Arbitration.
In the event the Depositary is advised that a judgment of a
court in the United States may not be recognized, the following provisions shall
apply:
(i) Any controversy, claim or cause of action brought by any
party or parties hereto against any other party or parties hereto arising out of
or relating to the Deposit Agreement shall be settled by arbitration in
accordance with the Commercial
27
Arbitration Rules of the American Arbitration Association, and judgment upon the
award rendered by the arbitrators may be entered in any court having
jurisdiction thereof.
(ii) The place of the arbitration shall be the City of Xxx
Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, and the language of the
arbitration shall be English.
(iii) The number of arbitrators shall be three, each of whom
shall be disinterested in the dispute or controversy, shall have no connection
with any party thereto, and shall be an attorney experienced in international
securities transactions. Each party shall appoint one arbitrator and the two
arbitrators shall select a third arbitrator who shall serve as chairperson of
the tribunal. If a dispute, controversy or cause of action shall involve more
than two parties, the parties shall attempt to align themselves in two sides
(i.e., claimant and respondent), each of which shall appoint one arbitrator as
if there were only two parties to such dispute, controversy or cause of action.
If either or both parties fail to select an arbitrator, or if such alignment (in
the event there is more than two parties) shall not have occurred, within sixty
(60) calendar days after the initiating party serves the arbitration demand or
the two arbitrators fail to select a third arbitrator within sixty (60) calendar
days of the selection of the second arbitrator, the American Arbitration
Association shall appoint the arbitrator or arbitrators in accordance with its
rules. The parties and the American Arbitration Association may appoint the
arbitrators from among the nationals of any country, whether or not a party is a
national of that country.
(iv) The arbitrators shall have no authority to award damages
not measured by the prevailing party's actual damages and shall have no
authority to award any consequential, special or punitive damages, and may not,
in any event, make any ruling, finding or award that does not conform to the
terms and conditions of this Deposit Agreement.
(v) In the event any third-party action or proceeding is
instituted against the Depositary relating to or arising from any act or failure
to act by the Company, the Company hereby submits to the personal jurisdiction
of the court or administrative agency in which such action or proceeding is
brought.
28
IN WITNESS WHEREOF, CHINA TECHFAITH WIRELESS COMMUNICATION
TECHNOLOGY LIMITED and THE BANK OF NEW YORK have duly executed this agreement as
of the day and year first set forth above and all Owners and Beneficial Owners
shall become parties hereto upon acceptance by them of Receipts issued in
accordance with the terms hereof.
CHINA TECHFAITH WIRELESS
COMMUNICATION
TECHNOLOGY LIMITED
By: ________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By: ________________________
Name:
Title:
2
Exhibit A to Deposit Agreement
NO. ___________________________________
AMERICAN DEPOSITARY SHARES
(EACH AMERICAN DEPOSITARY SHARE
REPRESENTS ____ DEPOSITED SHARES)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ORDINARY SHARES,
PAR VALUE U.S.$___ PER SHARE, OF
CHINA TECHFAITH WIRELESS COMMUNICATION TECHNOLOGY LIMITED
(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 China Techfaith
Wireless Communication Technology Limited, incorporated under the laws of the
Cayman Islands (herein called the Company). At the date hereof, each American
Depositary Share represents ____ Shares which are either deposited or subject to
deposit under the Deposit Agreement referred to below at the principal 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
A-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 ____________, 2005 (the "Deposit
Agreement"), by and among the Company, the Depositary, and all Owners and
Beneficial Owners from time to time of Receipts issued thereunder, each of whom
by accepting a Receipt 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 Beneficial Owners of the Receipts and the rights and duties of the
Depositary in respect of the Shares deposited thereunder and any and all other
securities, property and cash from time to time received in respect of such
Shares and held thereunder (such Shares, securities, property, and cash are
herein called Deposited Securities). Copies of the Deposit Agreement are on file
at the 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 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 this
Receipt, 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
hereof is entitled to delivery, to him or upon his order, of the amount of
Deposited Securities at the time represented by the American Depositary Shares
for which this Receipt is issued. Delivery of such Deposited Securities may be
made by the delivery of (a) certificates for Shares in the name of the Owner
hereof or as ordered by him or by certificates properly endorsed or accompanied
by proper instruments 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 Receipts 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 Receipts or to the withdrawal of the Deposited Securities.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
A-2
The transfer of this Receipt is registrable on the books of the Depositary
at its Corporate Trust Office by the Owner hereof in person or by a duly
authorized attorney, upon surrender of this Receipt properly endorsed for
transfer or accompanied by proper instruments of transfer and funds sufficient
to pay 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. As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, or surrender of any Receipt or
withdrawal of any Deposited Securities, the Depositary, the Custodian, or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt of a sum sufficient to reimburse it for any tax, stamp duty 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 this
Receipt, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
the Deposit Agreement or this Receipt.
The delivery of Receipts against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the transfer of Receipts in
particular instances may be refused, or the registration of transfer of
outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed as provided in Section 5.1 of the
Deposit Agreement, 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 this Receipt, or for any other
reason. Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under the Deposit Agreement any Shares required to be
registered under the provisions of the Securities Act for public sale in the
United States, unless a registration statement is in effect as to such Shares.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any Receipt or any Deposited Securities represented hereby, such tax or other
governmental charge shall be payable by the Owner hereof to the Depositary. The
Depositary may refuse to effect any transfer of this Receipt or any withdrawal
of Deposited Securities represented by American Depositary Shares evidenced by
such Receipt until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Owner hereof any part or all
of the Deposited Securities represented by the American Depositary Shares
evidenced by this Receipt, 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 hereof shall remain liable for any deficiency.
A-3
5. WARRANTIES OF DEPOSITORS.
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 were not issued
in violation of any pre-emptive 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 Shares are not, and American
Depositary Shares representing the Shares would not be, Restricted Securities.
All representations and warranties deemed made under Section 3.3 of the Deposit
Agreement shall survive the deposit of Shares and delivery or surrender of
Receipts.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or Beneficial Owner
of a Receipt 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 Receipt 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 the Cayman Islands or in Hong Kong 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 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 Receipts or to whom Receipts 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
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.3 of the Deposit Agreement), or by Owners, as applicable: (1) taxes,
stamp duty and other governmental charges, (2) such registration fees as may
from time to time be in effect for the registration of transfers of Shares
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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 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 4.5 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the execution and delivery
of Receipts pursuant to Section 2.3, 4.3 or 4.4 of the Deposit Agreement and the
surrender of Receipts pursuant to Section 2.5 or 6.2 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 4.1 through 4.4 of the Deposit Agreement, (7) a fee for the
distribution of securities pursuant to Section 4.2 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) a fee of $.02 or less per American
Depositary Share (or portion thereof) for depositary services, which will accrue
on the last day of each calendar year and which will be payable as provided in
clause (9) below; provided, however, that no fee will be assessed under this
clause (8) to the extent a fee of $.02 was charged pursuant to clause (6) above
during that calendar year and (9) any other charge 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 4.6 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 Section 2.9 of the Deposit Agreement, may own
and deal in any class of securities of the Company and its affiliates and in
Receipts.
8. PRE-RELEASE OF RECEIPTS.
The Depositary may, notwithstanding Section 2.3 of the Deposit Agreement,
execute and deliver Receipts prior to the receipt of Shares pursuant to Section
2.2 of the Deposit Agreement (a "Pre-Release"). The Depositary may, pursuant to
Section 2.5 of the Deposit Agreement, deliver Shares upon the receipt and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts 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 Receipts or Shares are to be delivered, that such person, or its
customer, owns the Shares or Receipts to be remitted, as the case may be, (b) at
all times fully collateralized with cash or such other collateral as the
Depositary
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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 hereunder; 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
Beneficial Owner of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt when properly endorsed or accompanied by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument; under the laws of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the books of the
Depositary as the absolute owner hereof 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.
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 or facsimile 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 (hereinafter called the "Commission").
Such reports and communications will be available for inspection and
copying at the public reference facilities maintained by the Commission located
at 000 Xxxxx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office, as promptly as practicable after receipt, any
reports and 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 shall also send to the
Owners of Receipts copies of such
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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.
The Depositary shall keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts 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 of Receipts
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 Receipts.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, 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 shall distribute the
amount thus received (net of the fees and expenses of the Depositary as provided
in the Deposit Agreement, if applicable) to the Owners of Receipts entitled
thereto, 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 in respect of any Deposited Securities an amount on
account of taxes, the amount distributed to the Owners of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly.
Subject to the provisions of Sections 4.11 and 5.9 of the Deposit
Agreement, whenever the Depositary shall receive any distribution other than a
distribution described in Sections 4.1, 4.3 or 4.4 of the Deposit Agreement, the
Depositary shall, subject to all applicable laws, cause the securities or
property received by it to be distributed to the Owners of Receipts entitled
thereto, after deduction or upon payment of any fees and expenses of the
Depositary or any taxes or other governmental charges, 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 of the Depositary as provided in Section 5.9 of the
Deposit Agreement) shall be distributed by the Depositary to the Owners of
Receipts entitled thereto as in the case of a distribution received in cash. The
Depositary may refuse to effect any distribution of securities under Section 4.2
of the Deposit Agreement 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.
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If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary may distribute to the Owners
of outstanding Receipts entitled thereto, additional Receipts evidencing 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 evidenced by Receipts, 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 Section 5.9 of the Deposit Agreement. In lieu of
delivering Receipts for fractional American Depositary Shares in any such case,
the Depositary shall use reasonable efforts to sell the amount of Shares
represented by the aggregate of such fractions and distribute any net proceeds
to the Owners entitled to them, all in the manner and subject to the conditions
set forth in the Deposit Agreement. If additional Receipts are not so
distributed, 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 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 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. 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
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averaged or other practicable basis without regard to any distinctions among
Owners on account of exchange restrictions, the date of delivery of any Receipt
or otherwise and shall be net of any expenses of conversion into Dollars
incurred by the Depositary as provided in Section 5.9 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, or if there are foreign exchange controls in place that prohibit
such conversion, 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.
14. 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
to them or in disposing of such rights on behalf of any Owners otherwise
entitled to them 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 Owners or to 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.
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In circumstances in which rights would otherwise not be distributed, if an
Owner of Receipts 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 2.2 of the Deposit Agreement, and shall, pursuant to Section 2.3 of the
Deposit Agreement, execute and deliver Receipts to such Owner. In the case of a
distribution pursuant to the second paragraph of this Article, such Receipts
shall be legended in accordance with applicable U.S. laws, and shall be subject
to the appropriate restrictions on sale, deposit, cancellation and transfer
under such 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 5.9 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 Receipt 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 with respect to a distribution to Owners or are
registered under the provisions of the Securities Act; provided, however, 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 of Receipts requests distribution
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of warrants or other instruments, notwithstanding that there has been no such
registration under the Securities Act, 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 reasonable failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
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 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 receive notice of
any meeting of holders of Shares or other Deposited Securities, 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 of Receipts who shall be
(i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, (b) on or after which each
American Depositary Share will represent the changed number of Shares or (c) for
any other matter, subject to the provisions of the Deposit Agreement.
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 a notice, the form
of which notice shall be in the discretion of the Depositary and shall contain
(a) such information as is contained in such notice of meeting, and (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 Hong Kong and Cayman
Islands law and of the Memorandum and Articles of Association 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. Upon the written request of an Owner of
a Receipt on such record date, received on or before the date established by the
Depositary for such purpose (the "Instruction Date"), 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 evidenced by such Receipt in accordance with the instructions set forth
in such request. The Depositary shall not vote
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or attempt to exercise the right to vote that attaches to such Shares or other
Deposited Securities other than in accordance with such instructions.
There can be no assurance that Owners generally or any Owner in particular
will receive the notice described in the first paragraph of Section 4.7 of the
Deposit Agreement sufficiently prior to the Instruction Date to ensure that the
Depositary will vote the Shares or Deposited Securities in accordance with the
provisions of that paragraph.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
In circumstances where the provisions of Section 4.3 of the Deposit
Agreement do not apply, 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, any securities which
shall be received by the Depositary or a Custodian in exchange for or in
conversion 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,
if any, the new Deposited Securities so received in exchange or conversion,
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, officers, employees, agents or affiliates shall incur any liability
to any Owner or Beneficial Owner of any Receipt, 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 Memorandum and Articles of Association 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 Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company or
any of their respective directors, officers, employees, agents or affiliates
incur any liability to any Owner or Beneficial Owner of a Receipt 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, or by reason of any exercise of, or failure to exercise,
any discretion provided for in the Deposit Agreement. Where, by the terms of a
distribution pursuant to Sections 4.1, 4.2 or 4.3 of the Deposit Agreement, or
an offering or distribution pursuant
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to Section 4.4 of the Deposit Agreement, or for any other reason, 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 in each such case without liability to the
Company or the Depositary.
Neither the Company nor the Depositary nor any of their directors,
officers, employees, agents or affiliates assumes any obligation or shall be
subject to any liability under the Deposit Agreement to Owners or Beneficial
Owners of Receipts, except that the Company and the Depositary 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 Receipts that in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expenses
and liability shall be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the responsibility of the Custodian being solely to the Depositary. 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 Beneficial Owner of a
Receipt, or any other person believed by it in good faith to be competent to
give such advice or information. 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 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 is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY.
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, which shall become effective upon the later to occur of
the (i) 120th day after delivery of the notice to the Depositary or (ii) the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. Whenever
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the Depositary in its discretion determines that it is in the best interest of
the Owners of Receipts 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 and Beneficial Owners 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
substantial existing right of Owners of Receipts, shall, however, not become
effective as to outstanding Receipts until the expiration of 30 days after
notice of such amendment shall have been given to the Owners of outstanding
Receipts. Every Owner of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, 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 of any
Receipt to surrender such Receipt 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 Depositary shall at any time at the direction of the Company terminate
the Deposit Agreement by mailing notice of such termination to the Owners of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate the Deposit
Agreement by mailing notice of such termination to the Company and the Owners of
all Receipts then outstanding if at any time 60 days shall have expired after
the Depositary shall have delivered to the Company a written notice of its
election to resign and a successor depositary shall not have been appointed and
accepted its appointment as provided in the Deposit Agreement. On and after the
date of termination, the Owner of a Receipt will, upon (a) surrender of such
Receipt at the Corporate Trust Office of the Depositary, (b) payment of the fee
of the Depositary for the surrender of Receipts referred to in Section 2.5 of
the Deposit Agreement 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 the American Depositary Shares evidenced by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, 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, in exchange for Receipts surrendered to
the Depositary (after deducting,
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in each case, the fee of the Depositary for the surrender of a Receipt, any
expenses for the account of the Owner of such Receipt 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 six 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 Receipts which 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 for its obligations to the
Company under Section 5.8 of the Deposit Agreement and to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Owner of such Receipt in accordance with the terms and conditions of the 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 under Sections 5.8 and 5.9 of the Deposit Agreement.
23. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The Company has (i) irrevocably designated and appointed CT Corporation
System, 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, in the State of
New York, as the Company's authorized agent upon which process may be served in
any suit 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
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 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.
24. ARBITRATION.
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In the event the Depositary is advised that a judgment of a court in the
United States court may not be recognized, the following provisions shall apply:
(i) Any controversy, claim or cause of action brought by any party or
parties hereto against any other party or parties hereto arising out of or
relating to the Deposit Agreement shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
(ii) The place of the arbitration shall be the City of Xxx Xxxx, Xxxxx xx
Xxx Xxxx, Xxxxxx Xxxxxx of America, and the language of the arbitration shall be
English.
(iii) The number of arbitrators shall be three, each of whom shall be
disinterested in the dispute or controversy, shall have no connection with any
party thereto, and shall be an attorney experienced in international securities
transactions. Each party shall appoint one arbitrator and the two arbitrators
shall select a third arbitrator who shall serve as chairperson of the tribunal.
If a dispute, controversy or cause of action shall involve more than two
parties, the parties shall attempt to align themselves in two sides (i.e.,
claimant and respondent), each of which shall appoint one arbitrator as if there
were only two parties to such dispute, controversy or cause of action. If either
or both parties fail to select an arbitrator, or if such alignment (in the event
there is more than two parties) shall not have occurred, within sixty (60)
calendar days after the initiating party serves the arbitration demand or the
two arbitrators fail to select a third arbitrator within sixty (60) calendar
days of the selection of the second arbitrator, the American Arbitration
Association shall appoint the arbitrator or arbitrators in accordance with its
rules. The parties and the American Arbitration Association may appoint the
arbitrators from among the nationals of any country, whether or not a party is a
national of that country.
(iv) The arbitrators shall have no authority to award damages not measured
by the prevailing party's actual damages and shall have no authority to award
any consequential, special or punitive damages, and may not, in any event, make
any ruling, finding or award that does not conform to the terms and conditions
of the Deposit Agreement.
In the event any third-party action or proceeding is instituted against
the Depositary relating to or arising from any act or failure to act by the
Company, the Company hereby submits to the personal jurisdiction of the court or
administrative agency in which such action or proceeding is brought.
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