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JIANGSU EXPRESSWAY COMPANY LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Deposit Agreement
Dated as of _________________, 2002
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TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS........................................................1
SECTION 1.1 American Depositary Shares....................................1
SECTION 1.2 Beneficial Owner..............................................1
SECTION 1.3 Business Day..................................................1
SECTION 1.4 Commission....................................................2
SECTION 1.5 Company.......................................................2
SECTION 1.6 Custodian.....................................................2
SECTION 1.7 Deposit, Deliver, Execute, Issue, Register, Surrender,
Transfer, Withdraw or Cancel..................................2
SECTION 1.8 Deposit Agreement.............................................2
SECTION 1.9 Depositary; Corporate Trust Office............................2
SECTION 1.10 Deposited Securities..........................................2
SECTION 1.11 Dollars; RMB..................................................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 of 1933........................................3
SECTION 1.18 Shares........................................................3
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.............................................4
SECTION 2.3 Execution and Delivery of Receipts............................5
SECTION 2.4 Transfer of Receipts; Combination and Split-up of Receipts....5
SECTION 2.5 Surrender of Receipts and Withdrawal of Shares................6
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts and Withdrawal of Deposited Securities............7
SECTION 2.7 Lost Receipts, etc............................................7
SECTION 2.8 Cancellation and Destruction of Surrendered Receipts..........7
SECTION 2.9 Pre-Release of Receipts.......................................7
SECTION 2.10 Maintenance of Records........................................8
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TABLE OF CONTENTS
(continued)
Page
ARTICLE 3 CERTAIN OBLIGATIONS OF OWNERS AND BENEFICIAL OWNERS
OF RECEIPTS........................................................9
SECTION 3.1 Filing Proofs, Certificates and Other Information.............9
SECTION 3.2 Liability of Owner or Beneficial Owner for Taxes..............9
SECTION 3.3 Warranties on Deposit of Shares...............................9
SECTION 3.4 Disclosure of Beneficial Ownership............................9
SECTION 3.5 Ownership Restrictions.......................................10
ARTICLE 4 THE DEPOSITED SECURITIES..........................................10
SECTION 4.1 Cash Distributions...........................................10
SECTION 4.2 Distributions Other Than Cash, Shares or Rights..............11
SECTION 4.3 Distributions in Shares......................................11
SECTION 4.4 Rights.......................................................12
SECTION 4.5 Conversion of Foreign Currency...............................13
SECTION 4.6 Fixing of Record Date........................................14
SECTION 4.7 Voting of Deposited Securities...............................14
SECTION 4.8 Changes Affecting Deposited Securities.......................14
SECTION 4.9 Reports......................................................15
SECTION 4.10 Lists of Owners..............................................15
SECTION 4.11 Withholding..................................................15
ARTICLE 5 THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY....................15
SECTION 5.1 Maintenance of Office and Transfer Books by the Depositary...15
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Company......................................................16
SECTION 5.3 Obligations of the Depositary, the Custodian and the
Company......................................................16
SECTION 5.4 Resignation and Removal of the Depositary....................17
SECTION 5.5 The Custodians...............................................17
SECTION 5.6 Notices and Reports..........................................18
SECTION 5.7 Distribution of Additional Shares, Rights, etc...............18
SECTION 5.8 Indemnification..............................................19
SECTION 5.9 Charges of Depositary........................................20
SECTION 5.10 Retention of Depositary Documents............................21
SECTION 5.11 Exclusivity..................................................21
SECTION 5.12 List of Restricted Securities Owners.........................21
ARTICLE 6 AMENDMENT AND TERMINATION.........................................21
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TABLE OF CONTENTS
(continued)
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SECTION 6.1 Amendment....................................................21
SECTION 6.2 Termination..................................................22
ARTICLE 7 MISCELLANEOUS.....................................................23
SECTION 7.1 Counterparts.................................................23
SECTION 7.2 No Third Party Beneficiaries.................................23
SECTION 7.3 Severability.................................................23
SECTION 7.4 Owners and Beneficial Owners as Parties; Binding Effect......23
SECTION 7.5 Notices......................................................23
SECTION 7.6 Submission to Jurisdiction; Appointment of Agent for
Service of Process...........................................24
SECTION 7.7 Governing Law................................................24
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _______________, 2002, among JIANGSU
EXPRESSWAY COMPANY LIMITED, a joint stock limited company established under the
laws of the People's Republic of China (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 twenty
(20) Shares, 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 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 1.3 Business Day
The term "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday or Friday which is not (a) a day on which banking institutions in the
Borough of Manhattan, The City of New York
are authorized or obligated by law or executive order to close and (b) a day on
which the market(s) in which Receipts are traded are closed.
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 Jiangsu Expressway Company Limited, a joint
stock limited company established under the laws of the People's Republic of
China, and its successors.
SECTION 1.6 Custodian
The term "Custodian" shall mean the Hong Kong office of The Hong Kong 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 Deposit, Deliver, Execute, Issue, Register, Surrender, Transfer,
Withdraw or Cancel
The terms "deposit", "deliver", "execute", "issue", "register",
"surrender", "transfer", "withdraw" or "cancel", when used with respect to
Shares, shall refer, where the context requires, to an entry or entries or an
electronic transfer or transfers in an account or accounts maintained by
institutions appointed by the Company to effect transfers of securities and not
to the physical transfer of certificates representing the Shares.
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. If the Corporate Trust Office's address changes after the
date of the Deposit Agreement, the Depositary will notify the Company of such
change as promptly as practicable.
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.
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SECTION 1.11 Dollars; RMB
The term "Dollars" shall mean United States dollars. The term "RMB" shall
mean Chinese renminbi.
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 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 to the Securities Act of 1933)
in a transaction or chain of transactions not involving any public offering or
which are subject to resale limitations under Regulation D under the Securities
Act of 1933 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 of 1933 in connection with the
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 or Hong
Kong, or under a shareholder agreement or the Articles of Association of the
Company.
SECTION 1.17 Securities Act of 1933
The term "Securities Act of 1933" shall mean the United States Securities
Act of 1933, as from time to time amended.
SECTION 1.18 Shares
The term "Shares" shall mean H shares in registered form of the Company,
par value RMB1.00 each, heretofore validly issued and outstanding and fully
paid, nonassessable and free of any pre-emptive rights of the holders of
outstanding Shares or hereafter validly issued and outstanding and fully paid,
nonassessable and free of any pre-emptive rights of the holders of outstanding
Shares; provided, however, that if there shall occur any change in par value, a
split-up or consolidation or any other reclassification
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or, upon the occurrence of any event described in Section 4.8, an exchange or
conversion in respect of the Shares, the term "Shares" shall thereafter mean the
successor securities resulting from such change in par value, split-up or
consolidation or such other reclassification or such exchange or conversion.
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 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 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, and neither
the Depositary nor the Company shall have any obligation or be subject to any
liability under this Deposit Agreement to any holder of a Receipt unless such
holder is the Owner thereof.
SECTION 2.2 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 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.
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No Share shall be accepted for deposit unless accompanied by evidence
satisfactory to the Depositary (which may be an opinion of counsel) that any
necessary approval has been granted by any governmental body in 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 specified
above, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian for
the account and to the order of the Depositary or at such other place or places
as the Depositary shall determine.
SECTION 2.3 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 or its
appointed agent 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 specified above, 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
5
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.
The Depositary may appoint one or more co-transfer agents reasonably
acceptable to the Company 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.
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 Company's Articles of
Association and applicable law, 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 in the name of such Owner or as ordered by him or 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.
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 and other proper documents of title for, the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt to the
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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.
SECTION 2.6 Limitations on Execution and Delivery, Transfer and Surrender of
Receipts and Withdrawal of Deposited Securities
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 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 deposit of Shares generally or against
deposit 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, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement, the
surrender of outstanding 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 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
of 1933, 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 issue Receipts against delivery by the Company (or any
agent of the Company recording Share ownership) of rights to receive Shares from
the Company (or any such agent of
7
the Company). No such issue of Receipts will be deemed a "Pre-Release" that is
subject to the restrictions of the following paragraph.
Unless requested in writing by the Company to cease doing so, the
Depositary may, notwithstanding Section 2.3 hereof, 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 and agreement
from the person to whom Receipts are to be delivered (the "Pre-Releasee") that
the Pre-Releasee, or its customer, (i) owns the Shares or Receipts to be
remitted, as the case may be, (ii) assigns all beneficial right, title and
interest in such Shares or Receipts, as the case may be, to the Depositary in
its capacity as such and for the benefit of the Owners, and (iii) will not take
any action with respect to such Shares or Receipts, as the case may be, that is
inconsistent with the transfer of beneficial ownership (including, without the
consent of the Depositary, disposing of such Shares or Receipts, as the case may
be, other than in satisfaction of such Pre-Release), (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary determines, in good faith, will provide similar liquidity and
security, (c) terminable by the Depositary on not more than five (5) Business
Days' notice, and (d) subject to such further indemnities and credit regulations
as the Depositary deems appropriate. The number of Shares not deposited but
represented by American Depositary Shares outstanding at any time as a result of
Pre-Releases will not normally exceed thirty percent (30%) of the Shares
deposited hereunder; provided, however, that the Depositary reserves the right
to disregard such limit from time to time as it deems reasonably appropriate,
and may, with the prior written consent of the Company, change such limit for
purposes of general application. The Depositary will also set Dollar limits with
respect to Pre-Release transactions to be entered into hereunder with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfil its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities hereunder).
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
SECTION 2.10 Maintenance of Records
The Depositary agrees to maintain records of all Receipts executed and
delivered by the Depositary under Section 2.3, all Receipts surrendered and
transferred under Section 2.4, all Receipts surrendered and Deposited Securities
withdrawn under Section 2.5, substitute Receipts delivered under Section 2.7 and
of Receipts cancelled and destroyed under Section 2.8, in keeping with
procedures followed by stock transfer agents located in The City of New York.
8
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, residence, legal or beneficial
ownership of Receipts, 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 Company's expense,
with copies or originals of (i) any such proofs of citizenship or residence,
legal or beneficial ownership, or exchange control approval that it receives,
and (ii) any other information or documents that the Company may reasonably
require and that the Depositary shall require from the Owners or Beneficial
Owners.
SECTION 3.2 Liability of Owner or Beneficial 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 or Beneficial 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 or
Beneficial 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 or Beneficial 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
are validly issued, fully paid, nonassessable and free of any preemptive or
similar 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 such Shares and the Receipts evidencing American Depositary
Shares representing such Shares would not be Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
of Receipts.
SECTION 3.4 Disclosure of Beneficial Ownership
The Company may from time to time request information from Owners regarding
the capacity in which such Owners own or owned Receipts, the identity of any
other persons then or previously having a beneficial interest in such Receipts
and the nature of such interest. Each Owner agrees to provide any information
requested by the Company or the Depositary pursuant to this Section 3.4. The
Depositary
9
agrees to transmit any such requests by the Company to the Owners, and to
transmit to the Company any responses to such requests that the Depositary
receives from the Owners.
Owners will be subject to the provisions of the Hong Kong Securities
(Disclosure of Interests) Ordinance (the "Ordinance") and any other legislation
or regulations of Hong Kong from time to time in effect regarding the disclosure
of interests in Shares. For the purposes of this Section, the term "interest"
shall have the meaning ascribed thereto in the Ordinance. As in effect as of the
date of the Deposit Agreement under the Ordinance, an Owner may have a duty to
notify the Company if such Owner becomes aware that its interest in Shares
(including its interest in Shares represented by American Depositary Shares)
equals or exceeds 10% or more of the issued Shares. Such Owner may be required
to further notify the Company of certain changes in such Owner's interest in the
Shares, or if such Owner ceases to have an interest in 10% or more of the issued
Shares. As in effect as of the date of the Deposit Agreement under the
Ordinance, the Company has certain rights and duties to make inquiries to
persons whom the Company knows or has reasonable cause to believe to be
interested in the Shares (including in Shares represented by American Depositary
Shares) concerning such persons' interest in the Shares. In the event that any
person with whom the Company has made such inquiries fails to respond thereto,
or provides false information in response thereto, such person may also be
subject to sanctions and criminal penalties. The Depositary agrees that it shall
use its reasonable efforts in obtaining such information with respect to
American Depositary Shares, provided that, except as otherwise provided in this
Deposit Agreement, nothing herein shall be interpreted as obligating the
Depositary to provide or obtain any such information not provided to the
Depositary by such Owners.
SECTION 3.5 Ownership Restrictions
The Company may restrict, in such manner as it deems appropriate, transfers
of Receipts where such transfer may result in the total number of Shares
represented by the American Depositary Shares evidenced by the Receipts
beneficially owned by a single Owner or Beneficial Owner exceeding the limits
under any applicable law, including, without limitation, the Codes on Takeovers
and Mergers and Share Repurchases issued by the Securities and Futures
Commission of Hong Kong or the Company's Articles of Association. The Company
may, in such manner as it deems appropriate, instruct the Depositary to take
reasonable action with respect to the ownership interest of any Owner or
Beneficial Owner in excess of the limitation set forth in the preceding
sentence, including but not limited to a mandatory sale or disposition on behalf
of any Owner or Beneficial Owner in the Receipt of the Shares represented by the
American Depositary Shares evidenced by a Receipt or Receipts held by such Owner
or Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law. Owners and Beneficial Owners shall
comply with all such transfer or ownership limitations and shall cooperate with
the Depositary's compliance with such Company instruction.
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 as promptly as practicable such dividend or
distribution into Dollars and shall distribute as promptly as practicable the
amount thus received (net of the fees and expenses of the Depositary as provided
in Section 5.9) 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
10
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 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 Sections 4.11 and 5.9, whenever the Depositary
shall receive any distribution other than a distribution described in Section
4.1, 4.3 or 4.4, the Depositary shall, after consultation with the Company,
cause the securities or property received by it to be distributed as promptly as
practicable 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 of 1933 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 5.9) shall be distributed as promptly as
practicable by the Depositary to the Owners entitled thereto, all in the manner
and subject to the conditions described in Section 4.1.
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 shall, subject to the
following sentence, distribute as promptly as practicable 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 the fees and
expenses of the Depositary as provided in Section 5.9. The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company that such distribution does not require registration
under the Securities Act of 1933 or is exempt from registration under the
provisions of such Act. In lieu of delivering Receipts for fractional American
Depositary Shares in any such case, the Depositary shall sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.1. 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.
11
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
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its discretion that
it is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed (unless
the Company's directors have been advised that such offer to any holder of
Deposited Securities may be prohibited by law, or may only be effected after
compliance with conditions or requirements that the Company's directors regard
as onerous), 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 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
(including, but not limited to, a certificate to the Company that in receiving
such warrants or instruments, such Owner has complied with all applicable laws).
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, upon receipt of the full
purchase price, 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 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.
12
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided that nothing in this
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If an
Owner of Receipts requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under such 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.
The Depositary and the Company shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
SECTION 4.5 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,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
13
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 the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date with reference to the Company's record date of the
Shares (a) for the determination of the Owners who shall be (i) entitled to
receive such dividend, distribution or rights or the net proceeds of the sale
thereof, (ii) entitled to give instructions for the exercise of voting rights at
any such meeting, or (iii) who shall be responsible for any fee assessed by the
Depositary pursuant to this Deposit Agreement, or (b) on or after which each
American Depositary Share will represent the changed number of Shares. Subject
to the provisions of Sections 4.1 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 sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Company, (b) a statement that the Owners as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of the laws of Hong Kong and the People's Republic of China
and the 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 on such record date, received on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor, in so far as practicable, to vote or cause to be voted the
amount of Shares or other Deposited Securities represented by the American
Depositary Shares 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 the 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 preceding paragraph sufficiently prior
to the instruction date, or at all, to ensure that the Depositary will vote the
Shares or Deposited Securities in accordance with the provisions set forth in
the preceding 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, the right to receive the new
Deposited Securities so received
14
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 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 when 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, to the extent such materials are required
to be translated into English pursuant to any regulations of the Commission.
SECTION 4.10 Lists of Owners
Promptly upon request by the Company, the Depositary shall, at the
Company's expense, 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.
SECTION 4.11 Withholding
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively. 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 government agencies.
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, 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.
15
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 and shall do so at the Company's reasonable request, provided
that any such closing of the transfer books shall be subject to the provisions
of Section 2.6 hereof, which will limit the suspension and withdrawal of Shares.
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 appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
The Company shall have the right to inspect at reasonable times transfer
and registration records of the Depositary, the Registrar and any co-transfer
agents or co-registrars and to require such parties to supply copies of such
portions of such records as the Company may reasonably request.
SECTION 5.2 Prevention or Delay in Performance by the Depositary or the
Company
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States, Hong Kong, the
People's Republic of China or any other country, or of any governmental or
regulatory authority or stock exchange, or by reason of any provision, present
or future, of the Articles of Association 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 Deposited Securities it is
provided shall be done or performed; nor shall the Depositary or the Company or
any of their respective directors, employees, agents or affiliates incur any
liability to any Owner or Beneficial Owner of any Receipt by reason of any
nonperformance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may
be done or performed, 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 Section 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.
SECTION 5.3 Obligations of the Depositary, the Custodian and the Company
The Company assumes no obligation nor shall it be subject to any liability
under this Deposit Agreement to Owners or Beneficial Owners, except that it
agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation to
appear in, prosecute or defend any action, suit or other proceeding in respect
of any Deposited Securities or in respect of the Receipts, which in its opinion
may involve it in expense or liability, unless indemnity satisfactory to it
16
against all expense 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 of 1933 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, to become effective upon the later of (i) the
120th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; 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
17
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. Whenever the Depositary in its
discretion determines that it is in the best interest of the Owners to do so, it
may appoint a substitute or additional custodian or custodians, each of which
shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to the Depositary, forthwith upon its appointment, an acceptance
of such appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each Custodian
then acting hereunder shall forthwith become, without any further act or
writing, the agent 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 agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English, if not already
in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
SECTION 5.7 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of 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 provide reasonable advance notice of such
event to the Depositary and will promptly furnish to the Depositary upon
request, if such distribution is to a U.S. person (as defined in the Securities
Act of 1933) or in the United States, a written opinion from U.S. counsel for
the Company, which counsel shall be satisfactory to the Depositary, stating
whether or not the Distribution requires a registration statement under the
Securities Act of 1933 to be in effect prior to making such Distribution
available to Owners entitled thereto. If in the opinion of such counsel a
registration statement is required, such counsel shall furnish to the Depositary
a written opinion as to whether or not there is a Registration Statement in
effect which will cover such Distribution.
18
Nothing in this Section 5.7 or elsewhere in this Deposit Agreement shall
create any obligation on the Company's part to file a registration statement
with respect to a Distribution or to endeavor to have such registration
statement be declared effective.
The Company agrees with the Depositary that neither the Company nor any
company controlled by, controlling or under common control with the Company will
at any time deposit any Shares, either originally issued or previously issued
and reacquired by the Company or any such affiliate, unless (a) a registration
statement is in effect as to such Shares under the Securities Act of 1933 or (b)
the Company has delivered to the Depositary a written opinion of U.S. counsel to
the effect that registration under the Securities Act of 1933 would not be
required if such Shares were sold in the United States.
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 reasonable
fees and expenses of counsel) which may arise out of any registration with the
Commission of Receipts, American Depositary Shares or Deposited Securities or
the offer or sale thereof in the United States or out of acts performed or
omitted, in accordance with 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 respective directors,
employees, agents and affiliates, except for any liability or expense arising
out of the negligence or bad faith of either of them, or (ii) by the Company or
any of its directors, employees, agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend to
any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.9) of a Receipt or Receipts in accordance
with Section 2.9 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.9;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not been the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged omission or alleged omission in any registration statement, proxy
statement, prospectus (or placement memorandum) or preliminary prospectus (or
preliminary placement memorandum) relating to the offer or sale of American
Depositary Shares, except to the extent any such liability or expense arises out
of (x) information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished in writing and not materially changed or
altered by the Company expressly for use in any of the foregoing documents, or,
(y) if such information is provided, the failure to state a material fact
necessary to make information provided not misleading.
The Depositary agrees to indemnify the Company, its directors, employees,
agents and affiliates and hold them harmless from any liability or expense
(including, but not limited to, the reasonable fees and expenses 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 or 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 and shall consult in good faith with such
Indemnitor as to the conduct of the defense of such action or proceeding, which
defense shall be reasonable under the circumstances. The failure of the
Indemnitee to so notify the
19
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 the 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 in addition to those available to the Indemnitor. No
compromise or settlement of such Proceeding may be effected by either party
without the other party's consent unless (i) there is no finding or admission of
any violation of law and no effect on any other claims that may be made against
such other party and (ii) the sole relief provided is monetary damages that are
paid in full by the party seeking the settlement. Neither party shall have any
liability with respect to any compromise or settlement effected without its
consent, which shall not be unreasonably withheld. The Indemnitor shall have no
obligation to indemnify and hold harmless the Indemnitee from any loss, expense
or liability incurred by the Indemnitee as a result of a default judgment
entered against the Indemnitee unless such judgment was entered after the
Indemnitor agreed, in writing, to assume the defense of such Proceeding.
The obligations set forth in this Section 5.8 shall survive the termination
of this Deposit Agreement and the succession or substitution of any person
indemnified hereby.
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 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 $0.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to
20
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 $0.02 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 $0.02 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).
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
requests that such papers be retained for a longer period or turned over to the
Company or to a successor depositary.
SECTION 5.11 Exclusivity
The Company agrees not to appoint any other depositary for issuance of
American 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 and the Company shall update that
list on a regular basis. The Company agrees to advise in writing each of the
persons or entities so listed that such Restricted Securities are ineligible for
deposit hereunder. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance thereon.
ARTICLE 6
AMENDMENT AND TERMINATION
SECTION 6.1 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 or Beneficial Owners of
Receipts 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,
21
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, 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 90 days prior to the date fixed
in such notice for such 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 90 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.
Notwithstanding the above, any termination of this Deposit Agreement shall not
be invalidated by any failure to provide notice to the Owners of all Receipts as
aforesaid. 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 one year
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 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.
The obligations set forth in this section shall survive the termination of
the Deposit Agreement and the succession or substitution of any indemnified
person.
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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 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
and shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person.
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. Each Owner agrees
that, by accepting a Receipt, such Owner shall hold such Receipt subject to, and
with the obligations of, the provisions hereof, the Company's Articles of
Association and the Shares.
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 Xxxxxxx Xxxxxxxxxxxxx Xxxxxxxx,
00/X, 00 Xxxxx Xxxx, Xxxxxxx, 000000, the People's Republic of China, or any
other place to which the Company may have transferred its principal office.
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.
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.
Delivery of a notice sent by mail or cable, telex or facsimile transmission
shall be deemed to be effective at the time when a duly addressed letter
containing the same (or a confirmation thereof in the
23
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 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 7.7 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.
24
IN WITNESS WHEREOF, JIANGSU EXPRESSWAY COMPANY LIMITED and THE BANK OF NEW
YORK have duly executed this Deposit Agreement as of the day and year first set
forth above and all Owners and Beneficial Owners shall become parties hereto
upon acceptance by them of Receipts issued in accordance with the terms hereof.
JIANGSU EXPRESSWAY COMPANY LIMITED
By:___________________________________
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:___________________________________
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Vice President
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary
Share represents twenty
(20) deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR H SHARES OF
PAR VALUE OF RMB1.00 EACH OF
JIANGSU EXPRESSWAY COMPANY LIMITED
(ESTABLISHED UNDER THE LAWS OF
THE PEOPLE'S REPUBLIC OF CHINA)
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 H shares (herein called "Shares") of Jiangsu Expressway
Company Limited, established under the laws of the People's Republic of China
(herein called the "Company"). At the date hereof, each American Depositary
Share represents twenty (20) Shares deposited or subject to deposit under the
Deposit Agreement (as such term is hereinafter defined) at the Hong Kong office
of The Hong Kong and Shanghai Banking Corporation Limited (herein called the
"Custodian"). The Depositary's Corporate Trust Office is located at a different
address than its principal executive office. Its Corporate Trust Office is
located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal executive
office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. 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 ______________, 2002 (herein called 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 defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
A-1
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 Company's
Articles of Association and applicable law, the Owner hereof is entitled to
delivery, to him or upon his order, of the 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 in the name of the Owner hereof or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of transfer
and (b) any other securities, property and cash to which such Owner is then
entitled in respect of this Receipt. 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.
3. TRANSFERS, SPLIT-UPS, AND COMBINATIONS OF RECEIPTS
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 the Shares or the presentor
of the Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in 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, including, without limitation, this
Article 3.
The delivery of Receipts against deposit of Shares generally or against
deposit 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, 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, subject to the provisions of the following
sentence. Notwithstanding anything to the contrary in the Deposit Agreement or
this Receipt, 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 Deposited Securities. 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 of 1933, unless a registration statement is
in effect as to such Shares.
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4. LIABILITY OF OWNER OR BENEFICIAL 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 or Beneficial 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
or Beneficial 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 or Beneficial
Owner hereof shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares and each certificate therefor
are validly issued, fully paid, non-assessable, and free of any preemptive or
similar 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 such Shares and the Receipts evidencing American Depositary
Shares representing such Shares would not be Restricted Securities. Such
representations and warranties shall survive the deposit of Shares and issuance
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, residence, legal or beneficial
ownership of Receipts, 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 promptly provide the Company, at the Company's expense, with copies or
originals of (i) any such proofs of citizenship or residence, legal or
beneficial ownership, or exchange control approval that it receives, and (ii)
any other information or documents that the Company may reasonably require and
that the Depositary shall require from the Owners or Beneficial Owners. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary (which may be an opinion of counsel) that any necessary approval has
been granted by any governmental body in the Hong Kong Special Administrative
Region, the People's Republic of China which is then performing the function of
the regulation of currency exchange.
7. CHARGES OF DEPOSITARY
The Company agrees to pay the fees, reasonable expenses and out-of-pocket
charges of the Depositary and those of any Registrar only in accordance with
agreements in writing entered into between the Depositary and the Company from
time to time. The Depositary shall present its statement for such charges and
expenses to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
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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
and other governmental charges, (2) such registration fees as may from time to
time be in effect for the registration of transfers of Shares generally on the
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to or from the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.5 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 $0.02 or less per American Depositary Share (or portion thereof)
for any cash distribution made pursuant 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 $0.02 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 $0.02 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 Article 8 hereof, 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 issue Receipts against delivery by the Company (or any
agent of the Company recording Share ownership) of rights to receive Shares from
the Company (or any such agent of the Company). No such issue of Receipts will
be deemed a "Pre-Release" that is subject to the restrictions of the following
paragraph.
Unless requested in writing by the Company to cease doing so, 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 and agreement from the person to whom
Receipts are to be delivered (the "Pre-Releasee") that the Pre-Releasee, or its
customer, (i) owns the Shares or Receipts to be remitted, as the case may be,
(ii) assigns all beneficial right, title and interest in such Shares or
Receipts, as the case may be, to the Depositary in its capacity as such and for
the benefit of the Owners, and
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(iii) will not take any action with respect to such Shares or Receipts, as the
case may be, that is inconsistent with the transfer of beneficial ownership
(including, without the consent of the Depositary, disposing of such Shares or
Receipts, as the case may be, other than in satisfaction of such Pre-Release),
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary determines, in good faith, with provide
similar liquidity and security, (c) terminable by the Depositary on not more
than five (5) Business Days' notice, and (d) subject to such further indemnities
and credit regulations as the Depositary deems reasonably appropriate. The
number of Shares not deposited but represented by American Depositary Shares
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems reasonably appropriate, and may, with the
prior written consent of the Company, change such limit for purposes of general
application. The Depositary will also set Dollar limits with respect to
Pre-Release transactions to be entered into under the Deposit Agreement with any
particular Pre-Releasee on a case-by-case basis as the Depositary deems
appropriate. For purposes of enabling the Depositary to fulfil its obligations
to the Owners under the Deposit Agreement, the collateral referred to in clause
(b) above shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligation to deliver Shares or Receipts upon termination of a
Pre-Release transaction (and shall not, for the avoidance of doubt, constitute
Deposited Securities under the Deposit Agreement).
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 or for all other purposes, and
neither the Depositary nor the Company shall have any obligation or be subject
to any liability under the Deposit Agreement to any holder of a Receipt unless
such holder is the Owner thereof.
10. VALIDITY OF RECEIPT
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual of a duly authorized officer of
the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS
The Company currently furnishes the Securities and Exchange Commission
(hereinafter called the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the Securities
Exchange Act of 1934. Such reports and communications will be available for
inspection and copying by Owners and Beneficial Owners at the public reference
facilities maintained by the Commission located at 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000.
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The Depositary will make available for inspection by Owners of Receipts at
its Corporate Trust Office 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 will also send to Owners of Receipts copies of such reports when
furnished by the Company pursuant to the Deposit Agreement. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
The Depositary will keep books at its Corporate Trust Office for the
registration of Receipts and transfers of Receipts, which at all reasonable
times shall be open for inspection by the Owners of Receipts, 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 receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into Dollars transferable
to the United States, and subject to the Deposit Agreement, convert as promptly
as practicable such dividend or distribution into Dollars and will distribute as
promptly as practicable the amount thus received (net of the fees and expenses
of the Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit
Agreement) to the Owners of Receipts entitled thereto; provided, however, that
in the event that the Company or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, 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 Section 4.11 and 5.9 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Section 4.1, 4.3 or 4.4 of the Deposit Agreement, the Depositary
shall, after consultation with the Company, cause the securities or property
received by it to be distributed as promptly as practicable to the Owners
entitled thereto, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners of Receipts entitled thereto, or if for any other reason the
Depositary deems such distribution not to be feasible, the Depositary may adopt
such method as it may deem equitable and practicable for the purpose of
effecting such distribution, including, but not limited to, the public or
private sale of the securities or property thus received, or any part thereof,
and the net proceeds of any such sale (net of the fees and expenses of the
Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit
Agreement) will be distributed as promptly as practicable by the Depositary to
the Owners of Receipts entitled thereto all in the manner and subject to the
conditions described in Section 4.1 of the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Depositary shall, subject to the
following sentence, distribute as promptly as practicable to the Owners of
outstanding Receipts entitled thereto, in proportion to the number of American
Depositary Shares representing such Deposited Securities evidenced by Receipts
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
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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 Article 7
hereof and Section 5.9 of the Deposit Agreement. In lieu of delivering Receipts
for fractional American Depositary Shares in any such case, the Depositary will
sell the amount of Shares represented by the aggregate of such fractions and
distribute the net proceeds, all in the manner and subject to the conditions
described in Section 4.1 of 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.
In connection with any distribution to Owners or Beneficial Owners and the
related remittance of any amount to any appropriate government or regulatory
authority required to be withheld by the Company or the Depositary and owing to
such authority, the Company or its agent may request from the Depositary, and
the Depositary will forward to the Company or its agent, such information from
its records to enable the Company or its agent to comply with any request from
or requirement of such authority. The Depositary will use reasonable efforts to
make and maintain arrangements to assist Owners and Beneficial Owners to receive
any tax credits or other benefits which may be available now or in the future
relating to dividend payments or other distributions on the Shares or Deposited
Securities.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13. RIGHTS
In the event that the Company shall offer or cause to be offered to the
holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and making the net
proceeds available to such Owners or, if by the terms of such rights offering or
for any other reason, the Depositary may not either make such rights available
to any Owners or dispose of such rights and make the net proceeds available to
such Owners, then the Depositary shall allow the rights to lapse. If at the time
of the offering of any rights the Depositary determines in its discretion that
it is lawful and feasible to make such rights available to all or certain Owners
but not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed (unless
the Company's directors have been advised that such offer to any holder of
Deposited Securities may be prohibited by law, or may only be effected after
compliance with conditions or requirements that the Company's directors regard
as onerous), 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 (including, but not limited
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to, a certificate to the Company that in receiving such warrants or instruments,
the Owner of Receipts has complied with all applicable laws).
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, upon receipt of the full
purchase price, 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 13, 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 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 of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided that nothing in the
Deposit Agreement shall create any obligation on the part of the Company to
file a registration statement with respect to such rights or underlying
securities or to endeavor to have such a registration statement declared
effective. If an Owner of Receipts requests the distribution of warrants or
other instruments, notwithstanding that there has been no such registration
under such 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.
The Depositary and the Company shall not be responsible for any failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY
Whenever the Depositary or the Custodian shall receive foreign currency, by
way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted, by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for
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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 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,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any such conversion of foreign currency, in whole or in part, cannot be
effected for distribution to some of the Owners entitled thereto, the Depositary
may in its discretion make such conversion and distribution in Dollars to the
extent permissible to the Owners entitled thereto and may distribute the balance
of the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Owners entitled thereto.
15. RECORD DATES
Whenever any cash dividend or other cash distribution shall become payable
or any distribution other than cash shall be made, or whenever rights shall be
issued with respect to the Deposited Securities, or whenever the Depositary
shall receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date with reference to the Company's record date of the
Shares (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, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting, or (iii) who shall be responsible for any fee
assessed by the Depositary pursuant to the Deposit Agreement, or (b) on or after
which each American Depositary Share will represent the changed number of
Shares, subject to the provisions of the Deposit Agreement.
16. VOTING OF DEPOSITED SECURITIES
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners of Receipts a
notice, the form of which notice shall be in the sole discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary from the Company, (b) a statement
that the Owners of Receipts as of the close of business on a specified record
date will be entitled, subject to any applicable provision of the laws of Hong
Kong and the People's Republic of China and of the 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
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on such record date, received on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted the amount of Shares or other Deposited
Securities represented by such American Depositary Shares 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 the 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 preceding paragraph sufficiently prior
to the instruction date, or at all, to ensure that the Depositary will vote the
Shares or Deposited Securities in accordance with the provisions set forth in
the preceding 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,
the right to receive 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, 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 or any other country,
or of any other governmental or regulatory authority, or by reason of any
provision, present or future, of the 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, 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 Section 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, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or Beneficial Owners of Receipts, except that they agree to perform
their obligations specifically set forth in the Deposit Agreement without
negligence or bad
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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, which in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it against all expense 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 responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith. The Depositary
shall not be liable for any acts or omissions made by a successor depositary
whether in connection with a previous act or omission of the Depositary or in
connection with a matter arising wholly after the removal or resignation of the
Depositary, provided that in connection with the issue out of which such
potential liability arises, the Depositary performed its obligations without
negligence or bad faith while it acted as Depositary. The 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 expenses of counsel) which may arise
out of any registration with the Commission of Receipts, American Depositary
Shares or Deposited Securities or the offer or sale thereof in the United States
or out of acts performed or omitted, in accordance with the provisions of the
Deposit Agreement and of the Receipts, as the same may be amended, modified, or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, or (ii) by the Company or any of its directors, employees, agents and
affiliates. No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN
The Depositary may at any time resign as Depositary 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 provided in the Deposit Agreement. The Depositary may at any
time be removed by the Company by 120 days' prior written notice of such
removal, to become effective upon the later of (i) the 120th day after delivery
of the notice to the Depositary and (ii) the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. Whenever the Depositary in its discretion determines that it is in
the best interest of the Owners 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 or Beneficial Owners of Receipts 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 and 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
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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 90 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 90 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.
Notwithstanding the above, any termination of the Deposit Agreement shall not be
invalidated by any failure to provide notice to the Owners of Receipts as
aforesaid. 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, 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 one year 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 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 with respect
to indemnification, charges, and expenses.
22. SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES
In the Deposit Agreement, the Company has (i) 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)
consented and submitted to the jurisdiction of any state or federal court in the
State of New York in which
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any such suit or proceeding may be instituted, and (iii) agreed that service of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding.
To the extent that the Company or any of its properties, assets or revenues
may have or hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution or judgment, or other legal process or proceeding for the giving of
any relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any time be commenced, with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
the Shares or Deposited Securities, the American Depositary Shares, the Receipts
or the Deposit Agreement, the Company, to the fullest extent permitted by law,
hereby irrevocably and unconditionally waives, and agrees not to plead or claim,
any such immunity and consents to such relief and enforcement.
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