Exhibit 4.3
================================================================================
FORM OF DEPOSIT AGREEMENT
MINDRAY MEDICAL INTERNATIONAL LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
Deposit Agreement
Dated as of ___________, 2006
================================================================================
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS 1
SECTION 1.01 American Depositary Shares 1
SECTION 1.02 Commission 2
SECTION 1.03 Company 2
SECTION 1.04 Custodian 2
SECTION 1.05 Deliver; Surrender 2
SECTION 1.06 Deposit Agreement 3
SECTION 1.07 Depositary; Corporate Trust Office 3
SECTION 1.08 Deposited Securities 3
SECTION 1.09 Dollars 3
SECTION 1.10 Foreign Xxxxxxxxx 0
SECTION 1.11 Owner 3
SECTION 1.12 Receipts 4
SECTION 1.13 Xxxxxxxxx 0
SECTION 1.14 Restricted Securities 4
SECTION 1.15 Securities Act of 1933 4
SECTION 1.16 Shares 4
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND
SURRENDER OF AMERICAN DEPOSITARY SHARES 5
SECTION 2.01 Form of Receipts; Registration and Transferability of
American Depositary Shares 5
SECTION 2.02 Deposit of Shares 6
SECTION 2.03 Delivery of American Depositary Shares 7
SECTION 2.04 Registration of Transfer of American Depositary Shares;
Combination and Split-up of Receipts; Interchange of
Certificated and Uncertificated American Depositary
Shares 7
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal
of Deposited Securities 8
SECTION 2.06 Limitations on Delivery, Transfer and Surrender of
American Depositary Shares 9
SECTION 2.07 Lost Receipts, etc 10
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts 10
SECTION 2.09 Pre-Release of American Depositary Shares 10
SECTION 2.10 DTC Direct Registration System and Profile Modification
System 11
-i-
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN
DEPOSITARY SHARES 11
SECTION 3.01 Filing Proofs, Certificates and Other Information 11
SECTION 3.02 Liability of Owner for Taxes 12
SECTION 3.03 Warranties on Deposit of Shares 12
ARTICLE 4. THE DEPOSITED SECURITIES 12
SECTION 4.01 Cash Distributions 12
SECTION 4.02 Distributions Other Than Cash, Shares or Rights 13
SECTION 4.03 Distributions in Shares 13
SECTION 4.04 Rights 14
SECTION 4.05 Conversion of Foreign Currency 16
SECTION 4.06 Fixing of Record Date 16
SECTION 4.07 Voting of Deposited Securities 17
SECTION 4.08 Changes Affecting Deposited Securities 18
SECTION 4.09 Reports 18
SECTION 4.10 Lists of Owners 18
SECTION 4.11 Withholding 18
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY 19
SECTION 5.01 Maintenance of Office and Transfer Books by the
Depositary 19
SECTION 5.02 Prevention or Delay in Performance by the Depositary or
the Company 19
SECTION 5.03 Obligations of the Depositary, the Custodian and the
Company 20
SECTION 5.04 Resignation and Removal of the Depositary 21
SECTION 5.05 The Custodians 22
SECTION 5.06 Notices and Reports 22
SECTION 5.07 Distribution of Additional Shares, Rights, etc 23
SECTION 5.08 Indemnification 23
SECTION 5.09 Charges of Depositary 24
SECTION 5.10 Retention of Depositary Documents 25
SECTION 5.11 Exclusivity 25
SECTION 5.12 List of Restricted Securities Owners 25
ARTICLE 6. AMENDMENT AND TERMINATION 25
SECTION 6.01 Amendment 25
SECTION 6.02 Termination 26
-ii-
ARTICLE 7. MISCELLANEOUS 27
SECTION 7.01 Counterparts 27
SECTION 7.02 No Third Party Beneficiaries 27
SECTION 7.03 Severability 27
SECTION 7.04 Owners and Holders as Parties; Binding Effect 27
SECTION 7.05 Notices 27
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for
Service of Process; Jury Trial Waiver 28
SECTION 7.07 Waiver of Immunities 29
SECTION 7.08 Governing Law 29
-iii-
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of __________, 2006, among MINDRAY MEDICAL
INTERNATIONAL LIMITED, incorporated under the laws of the Cayman Islands (herein
called the Company), THE BANK OF NEW YORK, a New York banking corporation
(herein called the Depositary), and all Owners and holders from time to time of
American Depositary Shares issued hereunder.
W I T N E S S E T H:
WHEREAS, the Company desires to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the
Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts are to be substantially in the
form of Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares.
The term "American Depositary Shares" shall mean the securities
created under this Deposit Agreement representing rights with respect to the
Deposited Securities. American Depositary Shares may be certificated securities
evidenced by Receipts or uncertificated securities. The form of Receipt annexed
as Exhibit A to this Deposit Agreement shall be the prospectus required under
the Securities Act of 1933 for sales of both certificated and uncertificated
American Depositary Shares. Except for those provisions of this Deposit
Agreement that refer specifically to Receipts, all the provisions of this
Deposit Agreement shall apply to both certificated and uncertificated American
Depositary Shares. Each American Depositary Share shall represent the number of
Shares specified in Exhibit A to this Deposit Agreement, until there shall occur
a distribution upon Deposited Securities covered by Section 4.03 or a change in
Deposited Securities covered by Section 4.08 with respect to which additional
American
Depositary Shares are not delivered, and thereafter American Depositary Shares
shall represent the amount of Shares or Deposited Securities specified in such
Sections.
SECTION 1.02 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.03 Company.
The term "Company" shall mean Mindray Medical International Limited,
incorporated under the laws of the Cayman Islands, and its successors.
SECTION 1.04 Custodian.
The term "Custodian" shall mean the Hong Kong office of The Hongkong
and Shanghai Banking Corporation Limited, as agent of the Depositary for the
purposes of this Deposit Agreement, and any other firm or corporation which may
hereafter be appointed by the Depositary pursuant to the terms of Section 5.05,
as substitute or additional custodian or custodians hereunder, as the context
shall require and shall also mean all of them collectively.
SECTION 1.05 Deliver; Surrender.
(a) The term "deliver", or its noun form, when used with respect
to Shares or Deposited Securities, shall mean effecting one or more entries in
an account or accounts maintained by an institution authorized under applicable
law to effect transfers of such securities in the name of the person entitled to
that delivery.
(b) The term "deliver", or its noun form, when used with respect
to American Depositary Shares, shall mean (i) one or more book-entry transfers
of American Depositary Shares to an account or accounts at The Depository Trust
Company ("DTC") designated by the person entitled to such delivery, (ii) if
requested by the person entitled to such delivery, delivery at the Corporate
Trust Office of the Depositary to the person entitled to such delivery of one or
more Receipts evidencing American Depositary Shares registered in the name
requested by that person or (iii) registration of American Depositary Shares not
evidenced by a Receipt on the books of the Depositary in the name requested by
the person entitled to such delivery and whereupon mailing will be made to that
person of a statement confirming that registration.
(c) The term "surrender", when used with respect to American
Depositary Shares, shall mean (i) one or more book-entry transfers of American
Depositary Shares to the DTC account of the Depositary, (ii) surrender to the
Depositary at its Corporate Trust Office of one or more Receipts evidencing
American Depositary
-2-
Shares or (iii) delivery to the Depositary at its Corporate Trust Office of an
instruction to surrender American Depositary Shares not evidenced by a Receipt.
SECTION 1.06 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.07 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Deposit Agreement is 000
Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
SECTION 1.08 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement,
including without limitation Shares that have not been successfully withdrawn or
delivered upon surrender of American Depositary Shares or Receipts, 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 4.05.
SECTION 1.09 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.10 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other agent of the Company for the transfer and
registration of Shares, including without limitation any securities depository
for the Shares.
SECTION 1.11 Owner.
The term "Owner" shall mean the person in whose name American
Depositary Shares are registered on the books of the Depositary maintained for
such purpose.
-3-
SECTION 1.12 Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing certificated American Depositary Shares, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.13 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 American Depositary Shares and transfers of American
Depositary Shares as herein provided.
SECTION 1.14 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or American
Depositary Shares representing Shares, that are acquired directly or indirectly
from the Company or its affiliates (as defined in Rule 144 under 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 the
Cayman Islands, or under a shareholder agreement or the Corporate Document of
the Company.
SECTION 1.15 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 1.16 Shares.
The term "Shares" shall mean Class A Ordinary shares of the Company,
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 or interim certificates
representing such Shares; provided, however, that, if there shall occur any
change in nominal value, a split-up or consolidation or any other
reclassification or, upon the occurrence of an event described in Section 4.08,
an exchange or conversion in respect of the Shares of the Company, the term
"Shares" shall thereafter also mean the successor securities resulting from such
change in nominal value, split-up or consolidation or such other
reclassification or such exchange or conversion.
-4-
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND SURRENDER
OF AMERICAN DEPOSITARY SHARES
SECTION 2.01 Form of Receipts; Registration and Transferability of
American Depositary Shares.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as 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 (i) each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered
and (ii) all American Depositary Shares delivered as hereinafter provided and
all registrations of transfer of American Depositary Shares 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.
American Depositary Shares evidenced by a Receipt, when properly
endorsed or accompanied by proper instruments of transfer, shall be transferable
as certificated registered securities under the laws of New York. American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Depositary,
notwithstanding any notice to the contrary, may treat the Owner of American
Depositary Shares as the absolute owner thereof for the purpose of determining
the person entitled to distribution of dividends or other distributions or to
any notice provided for in this Deposit Agreement and for all other purposes,
and neither the Depositary nor the Company shall have any obligation or
-5-
be subject to any liability under this Deposit Agreement to any holder of a
Receipt unless such holder is the Owner thereof.
SECTION 2.02 Deposit of Shares.
Subject to the terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instruments
or instructions for transfer, or endorsement, in form satisfactory to the
Custodian, together with all such certifications as may be required by the
Depositary or the Custodian in accordance with the provisions of this Deposit
Agreement, and, if the Depositary requires, together with a written order
directing the Depositary to deliver to, or upon the written order of, the person
or persons stated in such order, the number of American Depositary Shares
representing such deposit.
No Share shall be accepted for deposit unless accompanied by
evidence satisfactory to the Depositary that any necessary approval has been
granted by any governmental body in the Cayman Islands or People's Republic of
China 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.
-6-
SECTION 2.03 Delivery of American Depositary Shares.
Upon receipt by any Custodian of any deposit pursuant to Section
2.02 hereunder, together with the other documents required as specified above,
such Custodian shall notify the Depositary of such deposit and the person or
persons to whom or upon whose written order American Depositary Shares are
deliverable in respect thereof and the number of American Depositary Shares to
be so delivered. Such notification shall be made by letter or, at the request,
risk and expense of the person making the deposit, by cable, telex or facsimile
transmission (and in addition, if the transfer books of the Company or the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Company or
the Foreign Registrar that any Deposited Securities have been recorded upon the
books of the Company or the Foreign Registrar, if applicable, in the name of the
Depositary or its nominee or such Custodian or its nominee). Upon receiving such
notice from such Custodian, or upon the receipt of Shares or evidence of the
right to receive Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall deliver, to or upon the order of
the person or persons entitled thereto, the number of American Depositary Shares
issuable in respect of that deposit, but only upon payment to the Depositary of
the fees and expenses of the Depositary for the delivery of such American
Depositary Shares as provided in Section 5.09, and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
SECTION 2.04 Registration of Transfer of American Depositary Shares;
Combination and Split-up of Receipts; Interchange of Certificated and
Uncertificated American Depositary Shares.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of American Depositary Shares on its
transfer books from time to time, upon any surrender of American Depositary
Shares, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer or pursuant to a
proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile as provided in Section 2.10), as the case may be, 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 deliver the number of
American Depositary Shares surrendered 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.
-7-
The Depositary, upon surrender of a Receipt for the purpose of
exchanging for uncertificated American Depositary Shares, shall cancel that
Receipt and send the Owner a statement confirming that the Owner is the owner of
uncertificated American Depositary Shares. The Depositary, upon receipt of a
proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile as provided in Section 2.10) from the Owner of uncertificated
American Depositary Shares for the purpose of exchanging for certificated
American Depositary Shares, shall execute and deliver to the Owner a Receipt
evidencing those American Depositary Shares.
The Depositary, may appoint one or more co-transfer agents for the
purpose of effecting registration of transfers of American Depositary Shares and
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent may
require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to American Depositary Shares and
will be entitled to protection and indemnity to the same extent as the
Depositary.
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal of
Deposited Securities.
Upon surrender at the Corporate Trust Office of the Depositary of
American Depositary Shares for the purpose of withdrawal of the Deposited
Securities represented thereby, and upon payment of the fee of the Depositary
for the surrender of American Depositary Shares as provided in Section 5.09 and
payment of all taxes and governmental charges payable in connection with such
surrender and withdrawal of the Deposited Securities, and subject to the terms
and conditions of this Deposit Agreement, the Owner of those American Depositary
Shares shall be entitled to delivery, to him or as instructed, of the amount of
Deposited Securities at the time represented by those American Depositary
Shares. Delivery of such Deposited Securities may be made by the delivery of (a)
certificates or account transfer in the name of such Owner or as ordered by him,
with proper endorsement or accompanied by proper instruments or instructions of
transfer to such Owner or pursuant to proper delivery instructions and (b) any
other securities, property and cash to which such Owner is then entitled in
respect of those American Depositary Shares to such Owner or such person or
persons as instructed. Such delivery shall be made, as hereinafter provided,
without unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank. The Depositary may require the surrendering Owner to
execute and deliver to the Depositary a written order directing the Depositary
to cause the Deposited Securities being withdrawn to be delivered to or upon the
written order of a person or persons designated in such order in the manner
provided in the preceding paragraph. Thereupon the Depositary shall direct the
Custodian to deliver at the office of such Custodian, subject to Sections 2.06,
3.01 and 3.02 and to the other terms and conditions
-8-
of this Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by the surrendered American
Depositary Shares, except that the Depositary may make delivery to such person
or persons at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by those
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
At the request, risk and expense of any Owner so surrendering
American Depositary Shares, and for the account of such Owner, the Depositary
shall direct the Custodian to forward any cash or other property (other than
rights) comprising, and forward a certificate or certificates, if applicable,
and other proper documents of title for, the Deposited Securities represented by
the American Depositary Shares (evidenced by such Receipt, if applicable) to the
Depositary for delivery at the Corporate Trust Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Owner, by cable, telex or facsimile transmission.
SECTION 2.06 Limitations on Delivery, Transfer and Surrender of American
Depositary Shares.
As a condition precedent to the delivery, registration of transfer,
or surrender of any American Depositary Shares or split-up or combination of any
Receipt or withdrawal of any Deposited Securities, the Depositary, Custodian or
Registrar may require payment from the depositor of Shares or the presenter of
the Receipt or instruction for registration of transfer or surrender of American
Depositary Shares not evidenced by a Receipt of a sum sufficient to reimburse it
for any tax or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with respect
to Shares being deposited or withdrawn) and payment of any applicable fees as
herein provided, may require the production of proof satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with any regulations the Depositary may establish consistent with the provisions
of this Deposit Agreement, including, without limitation, this Section 2.06.
The delivery of American Depositary Shares against deposit of Shares
generally or against deposit of particular Shares may be suspended, or the
transfer of American Depositary Shares in particular instances may be refused,
or the registration of transfer of outstanding American Depositary Shares
generally may be suspended, during any period when the transfer books of the
Depositary are closed, or if any such action is deemed necessary or advisable by
the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement, or for any other reason, subject
to the provisions of the following sentence. Notwithstanding anything to the
contrary in this Deposit Agreement, the surrender of outstanding American
-9-
Depositary Shares and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the Foreign Registrar, if applicable, or the
deposit of Shares in connection with voting at a shareholders' meeting, or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the American Depositary Shares or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any Shares which would
be required to be registered under the provisions of the Securities Act of 1933,
unless a registration statement is in effect as to such Shares or such Shares
are exempt from registration thereunder.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before
the Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of American Depositary Shares.
Notwithstanding Section 2.03 hereof, the Depositary may deliver
American Depositary Shares prior to the receipt of Shares pursuant to Section
2.02 (a "Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver
Shares upon the surrender of American Depositary Shares that have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such American Depositary Shares
have been Pre-Released. The Depositary may receive American Depositary Shares in
lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a)
preceded or accompanied by a written representation from the person to whom
American Depositary Shares or Shares are to be delivered, that such person, or
its customer, owns the Shares or American Depositary Shares to be remitted, as
the case may be, (b) at all times fully collateralized with cash or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of American Depositary
-10-
Shares which are outstanding at any time as a result of Pre-Release will not
normally exceed thirty percent (30%) of the Shares deposited hereunder;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.10 DTC Direct Registration System and Profile Modification
System.
(a) Notwithstanding the provisions of Section 2.04, the parties
acknowledge that the Direct Registration System ("DRS") and Profile Modification
System ("Profile") shall apply to uncertificated American Depositary Shares upon
acceptance thereof to DRS by DTC. DRS is the system administered by DTC pursuant
to which the Depositary may register the ownership of uncertificated American
Depositary Shares, which ownership shall be evidenced by periodic statements
issued by the Depositary to the Owners entitled thereto. Profile is a required
feature of DRS which allows a DTC participant, claiming to act on behalf of an
Owner, to direct the Depositary to register a transfer of those American
Depositary Shares to DTC or its nominee and to deliver those American Depositary
Shares to the DTC account of that DTC participant without receipt by the
Depositary of prior authorization from the Owner to register such transfer.
(b) In connection with and in accordance with the arrangements and
procedures relating to DRS/Profile, the parties understand that the Depositary
will not verify, determine or otherwise ascertain that the DTC participant which
is claiming to be acting on behalf of an Owner in requesting registration of
transfer and delivery described in subsection (a) has the actual authority to
act on behalf of the Owner (notwithstanding any requirements under the Uniform
Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03
and 5.08 shall apply to the matters arising from the use of the DRS. The parties
agree that the Depositary's reliance on and compliance with instructions
received by the Depositary through the DRS/Profile System and in accordance with
this Deposit Agreement, shall not constitute negligence or bad faith on the part
of the Depositary.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY
SHARES
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or holder may
be required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to
-11-
execute such certificates and to make such representations and warranties, as
the Depositary may deem necessary or proper. The Depositary may withhold the
delivery or registration of transfer of American Depositary Shares or the
distribution of any dividend or sale or distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed or such certificates are executed or such
representations and warranties made.
SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any American Depositary Shares or
any Deposited Securities represented by any American Depositary Shares, such tax
or other governmental charge shall be payable by the Owner of such American
Depositary Shares to the Depositary. The Depositary may refuse to register any
transfer of those American Depositary Shares or any withdrawal of Deposited
Securities represented by those American Depositary Shares until such payment is
made, and may withhold any dividends or other distributions, or may sell for the
account of the Owner thereof any part or all of the Deposited Securities
represented by those American Depositary Shares, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner of such American Depositary Shares shall
remain liable for any deficiency.
SECTION 3.03 Warranties on Deposit of Shares.
Every person depositing Shares under this Deposit Agreement shall be
deemed thereby to represent and warrant that such Shares and each certificate
therefor, if applicable, are validly issued, fully paid, nonassessable and free
of any preemptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that the deposit of such Shares and the sale of
American Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and delivery of American Depositary Shares.
ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other
cash distribution on any Deposited Securities, the Depositary shall, subject to
the provisions of Section 4.05, convert such dividend or distribution into
Dollars and shall distribute the amount thus received (net of the fees and
expenses of the Depositary as provided in Section 5.09) to the Owners entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively; provided, however, that in
the event that the Company or the Depositary shall be required
-12-
to withhold and does withhold from such cash dividend or such other cash
distribution an amount on account of taxes or other governmental charges, the
amount distributed to the Owner of the American Depositary Shares representing
such Deposited Securities shall be reduced accordingly. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Owner a fraction of one cent. Any such fractional amounts shall be
rounded to the nearest whole cent and so distributed to Owners entitled thereto.
The Company or its agent will remit to the appropriate governmental agency in
the Cayman Islands or People's Republic of China all amounts withheld and owing
to such agency. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental agencies, and
the Depositary or the Company or its agent may file any such reports necessary
to obtain benefits under the applicable tax treaties for the Owners.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received by it to be distributed to the Owners entitled thereto, after
deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary such distribution cannot be made proportionately
among the Owners entitled thereto, or if for any other reason (including, but
not limited to, any requirement that the Company or the Depositary withhold an
amount on account of taxes or other governmental charges or that such securities
must be registered under the Securities Act of 1933 in order to be distributed
to Owners or holders) the Depositary deems such distribution not to be feasible,
the Depositary may adopt such method as it may deem equitable and practicable
for the purpose of effecting such distribution, including, but not limited to,
the public or private sale of the securities or property thus received, or any
part thereof, and the net proceeds of any such sale (net of the fees and
expenses of the Depositary as provided in Section 5.09) shall be distributed by
the Depositary to the Owners entitled thereto, all in the manner and subject to
the conditions described in Section 4.01. The Depositary may sell, by public or
private sale, an amount of securities or other property it would otherwise
distribute under this Section 4.02 that is sufficient to pay it fees and
expenses in respect of that distribution.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may deliver to the
Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited
-13-
Securities held by them respectively, an aggregate number of American Depositary
Shares representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and after deduction or upon issuance of
American Depositary Shares, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees and
expenses of the Depositary as provided in Section 5.09 (and the Depositary may
sell, by public or private sale, an amount of the Shares received sufficient to
pay its fees and expenses in respect of that distribution). The Depositary may
withhold any such delivery of American Depositary Shares if it has not received
satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act of 1933 or is exempt from registration
under the provisions of such Act. In lieu of delivering fractional American
Depositary Shares in any such case, the Depositary shall sell the amount of
Shares represented by the aggregate of such fractions and distribute the net
proceeds, all in the manner and subject to the conditions described in Section
4.01. If additional American Depositary Shares are not so delivered, each
American Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
SECTION 4.04 Rights.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any Owners
or in disposing of such rights on behalf of any Owners and 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,
if an Owner requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner upon
written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
-14-
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Owner, exercise
the rights and purchase the Shares, and the Company shall cause the Shares so
purchased to be delivered to the Depositary on behalf of such Owner. As agent
for such Owner, the Depositary will cause the Shares so purchased to be
deposited pursuant to Section 2.02 of this Deposit Agreement, and shall,
pursuant to Section 2.03 of this Deposit Agreement, deliver American Depositary
Shares to such Owner. In the case of a distribution pursuant to the second
paragraph of this Section, such deposit shall be made, and Deposited Securities
shall be delivered, under depositary arrangements which provide for issuance of
Deposited Securities subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under applicable United States laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Owners, it may sell
the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Owners to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.09 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any American Depositary Shares or
otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner requests the distribution of warrants or other
instruments, notwithstanding that there has been no such registration under the
Securities Act of 1933, the Depositary shall not effect such distribution unless
it has received an opinion from recognized counsel in the United States for the
Company upon which the Depositary may rely that such distribution to such Owner
is exempt from such registration.
The Depositary shall not be responsible for any failure to determine
that it may be lawful or feasible to make such rights available to Owners in
general or any Owner in particular.
-15-
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted by sale or in any other manner that it may determine such foreign
currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any American Depositary Shares or
otherwise and shall be net of any expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment
any foreign currency received by the Depositary or the Custodian is not
convertible on a reasonable basis into Dollars transferable to the United
States, or if any approval or license of any government or agency thereof which
is required for such conversion is denied or in the opinion of the Depositary is
not obtainable, 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.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for
-16-
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 (a) for
the determination of the Owners who shall be (i) entitled to receive such
dividend, distribution or rights or the net proceeds of the sale thereof, (ii)
entitled to give instructions for the exercise of voting rights at any such
meeting or (iii) responsible for any fee assessed by the Depositary pursuant to
this Deposit Agreement, or (b) on or after which each American Depositary Share
will represent the changed number of Shares. Subject to the provisions of
Sections 4.01 through 4.05 and to the other terms and conditions of this Deposit
Agreement, the Owners on such record date shall be entitled, as the case may be,
to receive the amount distributable by the Depositary with respect to such
dividend or other distribution or such rights or the net proceeds of sale
thereof in proportion to the number of American Depositary Shares held by them
respectively and to give voting instructions and to act in respect of any other
such matter.
SECTION 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the sole discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary from the Company, (b) a statement that the Owners as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of the laws of the Cayman Islands or People's Republic of
China and of the Corporate Document of the Company, to instruct the Depositary
as to the exercise of the voting rights, if any, pertaining to the amount of
Shares or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given. Upon the written request of an Owner on such record
date, received on or before the date established by the Depositary for such
purpose, the Depositary shall endeavor, in so far as practicable, to vote or
cause to be voted the amount of Shares or other Deposited Securities represented
by the American Depositary Shares in accordance with the instructions set forth
in such request. The 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 to ensure that the Depositary will
vote the Shares or Deposited Securities in accordance with the provisions set
forth in the preceding paragraph.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
if the Company will request the Depositary to act under this Section, the
Company shall
-17-
endeavor to give the Depositary notice of any such meeting or solicitation and
details concerning the matters to be voted upon sufficiently in advance of the
meeting date.
SECTION 4.08 Changes Affecting Deposited Securities.
Upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, or upon the redemption or
cancellation by the Company of the Deposited Securities, any securities, cash or
property which shall be received by the Depositary or a Custodian in exchange
for, in conversion of, in lieu of or in respect of Deposited Securities, shall
be treated as new Deposited Securities under this Deposit Agreement, and
American Depositary Shares shall thenceforth represent, in addition to the
existing Deposited Securities, the right to receive the new Deposited Securities
so received, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may, execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office any reports and communications, including any proxy
solicitation material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request by the Company, send to the Owners
copies of such reports when furnished by the Company pursuant to Section 5.06.
Any such reports and communications, including any such proxy soliciting
material, furnished to the Depositary by the Company shall be furnished in
English, to the extent such materials are required to be translated into English
pursuant to any regulations of the Commission.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the
expense of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names American Depositary Shares are registered on the books of the Depositary.
SECTION 4.11 Withholding.
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
-18-
rights to subscribe therefor) in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes or charges and the
Depositary shall distribute the net proceeds of any such sale after deduction of
such taxes or charges to the Owners entitled thereto in proportion to the number
of American Depositary Shares held by them respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for
the registration of American Depositary Shares and transfers of American
Depositary Shares which at all reasonable times shall be open for inspection by
the Owners, 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
American Depositary Shares.
The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder.
If any American Depositary Shares 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 American
Depositary Shares in accordance with any requirements of such exchange or
exchanges.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder (i) if by reason of any provision of any present or future law
or regulation of the United States 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 Corporate Document of the Company, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this
-19-
Deposit Agreement or Deposited Securities it is provided shall be done or
performed, (ii) by reason of any nonperformance or delay, caused as aforesaid,
in the performance of any act or thing which by the terms of this Deposit
Agreement it is provided shall or may be done or performed, (iii) by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement, (iv) for the inability of any Owner or holder to benefit from
any distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Owners or holders, or (v) for any special,
consequential or punitive damages for any breach of the terms of this Deposit
Agreement. Where, by the terms of a distribution pursuant to Section 4.01, 4.02,
or 4.03 of the Deposit Agreement, or an offering or distribution pursuant to
Section 4.04 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 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or holder, except that the
Company agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Owner or holder (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities), except that the Depositary agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the American Depositary
Shares on behalf of any Owner or holder or any person.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
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
-20-
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 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the earlier of (i) the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided or (ii) termination by the Depositary pursuant to Section 6.02 of 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
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.
-21-
SECTION 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to
the directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, appoint a substitute custodian or custodians, each of
which shall thereafter be a Custodian hereunder. The Depositary in its
discretion 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 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company agrees to transmit to the Depositary and the Custodian a
copy of the notice thereof in the form given or to be given to holders of Shares
or other Deposited Securities.
The Company will arrange for the translation into English, if not
already in English, to the extent required pursuant to any regulations of the
Commission, and the prompt transmittal by the Company to the Depositary and the
Custodian of such notices and any other reports and communications which are
made generally available by the Company to holders of its Shares. If requested
in writing by the Company, the Depositary will arrange for the mailing, at the
Company's expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the quantity of such
notices, reports, and communications, as requested by the Depositary from time
to time, in order for the Depositary to effect such mailings.
-22-
SECTION 5.07 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 will promptly furnish to the Depositary, 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.
The Company agrees with the Depositary that neither the Company nor
any company controlled by, controlling or under common control with the Company
will at any time deposit any Shares, either originally issued or previously
issued and reacquired by the Company or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933 or the Company delivers to the Depositary an opinion of United States
counsel, satisfactory to the Depositary, to the effect that the issuance of such
Shares is exempt from registration requirement of the Securities Act of 1933.
SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to any
fees and expenses incurred in seeking, enforcing or collecting such indemnity
and the fees and expenses of counsel) which may arise out of any registration
with the Commission of American Depositary Shares or Deposited Securities or the
offer or sale thereof in the United States or out of acts performed or omitted,
pursuant to the provisions of or in connection with this Deposit Agreement and
of the Receipts, as the same may be amended, modified or supplemented from time
to time, (i) by either the Depositary or a Custodian or their respective
directors, employees, agents and affiliates, except for any liability or expense
arising out of the negligence or bad faith of either of them, or (ii) by the
Company or any of its directors, employees, agents and affiliates.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
-23-
SECTION 5.09 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 following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering American Depositary Shares or to
whom American Depositary Shares are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant to Section
4.03), or by Owners, as applicable: (1) taxes and other governmental charges,
(2) such registration fees as may from time to time be in effect for the
registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to or from
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the delivery of American Depositary
Shares pursuant to Section 2.03, 4.03 or 4.04 and the surrender of American
Depositary Shares pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or less
per American Depositary Share (or portion thereof) for any cash distribution
made pursuant to this Deposit Agreement, including, but not limited to Sections
4.01 through 4.04 hereof, (7) a fee for the distribution of securities pursuant
to Section 4.02, such fee being in an amount equal to the fee for the execution
and delivery of American Depositary Shares referred to above which would have
been charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares) but which
securities are instead distributed by the Depositary to Owners, (8) in addition
to any fee charged under clause (6), a fee of $.02 or less per American
Depositary Share (or portion thereof) 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 and (9) any other charges payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Owners as of the date or dates set by
the Depositary in accordance with Section 4.06 and shall be payable at the sole
discretion of the Depositary by billing such Owners for such charge or by
deducting such charge from one or more cash dividends or other cash
distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in
any class of securities of the Company and its affiliates and in American
Depositary Shares.
-24-
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Company requests that such papers be retained for a longer period or turned over
to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other depositary for issuance
of American or global depositary shares or receipts so long as The Bank of New
York is acting as Depositary hereunder.
SECTION 5.12 List of Restricted Securities Owners.
From time to time, the Company shall provide to the Depositary a
list setting forth, to the actual knowledge of the Company, those persons or
entities who beneficially own Restricted Securities and the Company shall update
that list on a regular basis. The Company agrees to advise in writing each of
the persons or entities so listed that such Restricted Securities are ineligible
for deposit hereunder. The Depositary may rely on such a list or update but
shall not be liable for any action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit
Agreement may at any time and from time to time be amended by agreement between
the Company and the Depositary without the consent of Owners or holders in any
respect which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice any
substantial existing right of Owners, shall, however, not become effective as to
outstanding American Depositary Shares until the expiration of thirty days after
notice of such amendment shall have been given to the Owners of outstanding
American Depositary Shares. Every Owner and holder, at the time any amendment so
becomes effective, shall be deemed, by continuing to hold such American
Depositary Shares or any interest therein, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Owner to surrender American
Depositary Shares and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
-25-
SECTION 6.02 Termination.
The Company may at any time terminate this Deposit Agreement by
instructing the Depositary to mail a notice of termination to the Owners of all
American Depositary Shares then outstanding at least 60 days prior to the
termination date included in such notice. The Depositary may likewise terminate
this Deposit Agreement if at any time 30 days shall have expired after the
Depositary delivered to the Company a written resignation notice and if a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04; in such case the Depositary shall mail a notice of
termination to the Owners of all American Depositary Shares then outstanding at
least 30 days prior to the termination date. On and after the date of
termination, the Owner of American Depositary Shares will, upon (a) surrender of
such American Depositary Shares, (b) payment of the fee of the Depositary for
the surrender of American Depositary Shares referred to in Section 2.05, and (c)
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by those American Depositary Shares. If any American Depositary
Shares shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of American
Depositary Shares, shall suspend the distribution of dividends to the Owners
thereof, and shall not give any further notices or perform any further acts
under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in this Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, upon surrender of American Depositary
Shares (after deducting, in each case, the fee of the Depositary for the
surrender of American Depositary Shares, any expenses for the account of the
Owner of such American Depositary Shares in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges).
At any time after the expiration of four months from the date of
termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Owners of American
Depositary Shares that have not theretofore been surrendered, such Owners
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged from all
obligations under this Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of American Depositary Shares, any expenses for the
account of the Owner of such American Depositary Shares in accordance with the
terms and conditions of this Deposit Agreement, and any applicable taxes or
governmental charges. Upon the termination of this Deposit Agreement, the
Company shall be discharged from all
-26-
obligations under this Deposit Agreement except for its obligations to the
Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7. MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any Owner or holder during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 Owners and Holders as Parties; Binding Effect.
The Owners and holders from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of the Receipts by acceptance thereof.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed to have been duly
given if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to Mindray Medical International
Limited, Mindray Building, Keji 12th Road South, Hi-tech Industrial Park,
Nanshan, Shenzhen 518057, People's Republic of China, Attention: Xu Hang 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
-27-
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 American
Depositary Shares of the Depositary, or, if such Owner shall have filed with the
Depositary a written request that notices intended for such Owner be mailed to
some other address, at the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effected at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Submission to Jurisdiction; Appointment of Agent for Service
of Process; Jury Trial Waiver.
The Company hereby (i) irrevocably designates and appoints CT
Corporation System, 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.
EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF
DOUBT, EACH OWNER AND HOLDER) HEREBY
-28-
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE
COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING
TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR
THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR
THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY
QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY).
SECTION 7.07 Waiver of Immunities.
To the extent that the Company or any of its properties, assets or
revenues may have or may 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 from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Agreement, the Company, to the
fullest extent permitted by law, hereby irrevocably and unconditionally waives,
and agrees not to plead or claim, any such immunity and consents to such relief
and enforcement.
SECTION 7.08 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York, except with respect to its
authorization and execution by the Company, which shall be governed by the laws
of the Cayman Islands.
SECTION 7.09 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Company and the Depositary each agrees that it will not exercise any rights
it has under this Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
-29-
SECTION 7.10 Arbitration.
In the event the Depositary is advised that a judgment of a court in
the United States may not be recognized, the following provisions shall apply:
(i) Any controversy, claim or cause of action brought by any party
or parties hereto against any other party or parties hereto arising out of or
relating to the Deposit Agreement shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
(ii) The place of the arbitration shall be the City of Xxx Xxxx,
Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, and the language of the arbitration
shall be English.
(iii) The number of arbitrators shall be three, each of whom shall
be disinterested in the dispute or controversy, shall have no connection with
any party thereto, and shall be an attorney experienced in international
securities transactions. Each party shall appoint one arbitrator and the two
arbitrators shall select a third arbitrator who shall serve as chairperson of
the tribunal. If a dispute, controversy or cause of action shall involve more
than two parties, the parties shall attempt to align themselves in two sides
(i.e., claimant and respondent), each of which shall appoint one arbitrator as
if there were only two parties to such dispute, controversy or cause of action.
If either or both parties fail to select an arbitrator, or if such alignment (in
the event there is more than two parties) shall not have occurred, within sixty
(60) calendar days after the initiating party serves the arbitration demand or
the two arbitrators fail to select a third arbitrator within sixty (60) calendar
days of the selection of the second arbitrator, the American Arbitration
Association shall appoint the arbitrator or arbitrators in accordance with its
rules. The parties and the American Arbitration Association may appoint the
arbitrators from among the nationals of any country, whether or not a party is a
national of that country.
(iv) The arbitrators shall have no authority to award damages not
measured by the prevailing party's actual damages and shall have no authority to
award any consequential, special or punitive damages, and may not, in any event,
make any ruling, finding or award that does not conform to the terms and
conditions of this Deposit Agreement.
(v) In the event any third-party action or proceeding is
instituted against the Depositary relating to or arising from any act or failure
to act by the Company, the Company hereby submits to the personal jurisdiction
of the court or administrative agency in which such action or proceeding is
brought.
-30-
IN WITNESS WHEREOF, MINDRAY MEDICAL INTERNATIONAL 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 shall become parties hereto upon
acceptance by them of Receipts issued in accordance with the terms hereof.
MINDRAY MEDICAL
INTERNATIONAL LIMITED
By:
-------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:
-------------------------------------
Name:
Title:
-31-
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents
_____ deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR ____________ SHARES,
PAR VALUE ___________ PER SHARE,
OF
MINDRAY MEDICAL INTERNATIONAL LIMITED
(INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS)
The Bank of New York, as depositary (hereinafter called the "Depositary"),
hereby certifies that___________ ____________________________________________,
or registered assigns IS THE OWNER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited ________ shares (herein called "Shares") of Mindray
Medical International Limited, incorporated under the laws of the Cayman Islands
(herein called the "Company"). At the date hereof, each American Depositary
Share represents _____ Shares deposited or subject to deposit under the Deposit
Agreement (as such term is hereinafter defined) at the ______ office of
__________________ (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 __________, 2006 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and holders from time to time of American Depositary Shares issued thereunder,
each of whom by accepting American Depositary Shares agrees to become a party
thereto and become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights of Owners and holders and the rights and duties
of the Depositary in respect of the Shares deposited thereunder and any and all
other securities, property and cash from time to time received in respect of
such Shares and held thereunder (such Shares, securities, property, and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and are qualified by and subject
to the detailed provisions of the Deposit Agreement, to which reference is
hereby made. Capitalized terms defined in the Deposit Agreement and not defined
herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of American
Depositary Shares, and upon payment of the fee of the Depositary provided in
this Receipt, and subject to the terms and conditions of the Deposit Agreement,
the Owner of those American Depositary Shares is entitled to delivery, to him or
as instructed, of the amount of Deposited Securities at the time represented by
those American Depositary Shares. Delivery of such Deposited Securities may be
made by the delivery of (a) certificates or account transfer in the name of the
Owner hereof or as ordered by him, with proper endorsement or accompanied by
proper instruments or instructions 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.
Transfers of American Depositary Shares may be registered on the books of
the Depositary by the Owner in person or by a duly authorized attorney, upon
surrender of those American Depositary Shares properly endorsed for transfer or
accompanied by proper instruments of transfer, in the case of a Receipt, or
pursuant to a proper instruction
-2-
(including, for the avoidance of doubt, instructions through DRS and Profile as
provided in Section 2.10 of the Deposit Agreement), in the case of
uncertificated American Depositary Shares, 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. The
Depositary, upon surrender of a Receipt for the purpose of exchanging for
uncertificated American Depositary Shares, shall cancel that Receipt and send
the Owner a statement confirming that the Owner is the Owner of uncertificated
American Depositary Shares. The Depositary, upon receipt of a proper instruction
(including, for the avoidance of doubt, instructions through DRS and Profile as
provided in Section 2.10 of the Deposit Agreement) from the Owner of
uncertificated American Depositary Shares for the purpose of exchanging for
certificated American Depositary Shares, shall execute and deliver to the Owner
a Receipt evidencing those American Depositary Shares. As a condition precedent
to the delivery, registration of transfer, or surrender of any American
Depositary Shares or split-up or combination of any Receipt or withdrawal of any
Deposited Securities, the Depositary, the Custodian, or Registrar may require
payment from the depositor of the Shares or the presenter of the Receipt or
instruction for registration of transfer or surrender of American Depositary
Shares not evidenced by a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees as provided in
the Deposit Agreement, may require the production of proof satisfactory to it as
to the identity and genuineness of any signature and may also require compliance
with any regulations the Depositary may establish consistent with the provisions
of the Deposit Agreement.
The delivery of American Depositary Shares against deposit of Shares
generally or against deposit of particular Shares may be suspended, or the
transfer of American Depositary Shares in particular instances may be refused,
or the registration of transfer of outstanding American Depositary Shares
generally may be suspended, during any period when the transfer books of the
Depositary are closed, or if any such action is deemed necessary or advisable by
the Depositary or the Company at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of the Deposit Agreement, or for any other reason, subject
to the provisions of the following sentence. Notwithstanding anything to the
contrary in the Deposit Agreement or this Receipt, the surrender of outstanding
American Depositary Shares and withdrawal of Deposited Securities may not be
suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the Foreign Registrar, if applicable,
or the deposit of Shares in connection with voting at a shareholders' meeting,
or the payment of dividends, (ii) the payment of fees, taxes and similar
charges, and (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the American Depositary Shares or to the
-3-
withdrawal of the Deposited Securities. Without limitation of the foregoing, the
Depositary shall not knowingly accept for deposit under the Deposit Agreement
any Shares which would be required to be registered under the provisions of the
Securities Act of 1933, unless a registration statement is in effect as to such
Shares or such Shares are exempt from registration thereunder.
4. LIABILITY OF OWNER FOR TAXES.
If any tax or other governmental charge shall become payable with respect
to any American Depositary Shares or any Deposited Securities represented by any
American Depositary Shares, such tax or other governmental charge shall be
payable by the Owner to the Depositary. The Depositary may refuse to register
any transfer of those American Depositary Shares or any withdrawal of Deposited
Securities represented by those American Depositary Shares until such payment is
made, and may withhold any dividends or other distributions, or may sell for the
account of the Owner any part or all of the Deposited Securities represented by
those American Depositary Shares, and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge and the Owner shall remain liable for any deficiency.
5. WARRANTIES ON DEPOSIT OF SHARES.
Every person depositing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant, that such Shares and each certificate
therefor, if applicable, are validly issued, fully paid, nonassessable and free
of any preemptive rights of the holders of outstanding Shares and that the
person making such deposit is duly authorized so to do. Every such person shall
also be deemed to represent that the deposit of such Shares and the sale of
American Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and delivery of American Depositary Shares.
6. FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any person presenting Shares for deposit or any Owner or holder may be
required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
American Depositary Shares or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that any necessary
-4-
approval has been granted by any governmental body in Cayman Islands or People's
Republic of China, which is then performing the function of the regulation of
currency exchange.
7. CHARGES OF DEPOSITARY.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering American Depositary Shares or to
whom American Depositary Shares are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the Company or
an exchange of stock regarding the American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant to Section 4.03
of the Deposit Agreement), or by Owners, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time be in
effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the delivery of American
Depositary Shares pursuant to Section 2.03, 4.03 or 4.04 of the Deposit
Agreement and the surrender of American Depositary Shares pursuant to Section
2.05 or 6.02 of the Deposit Agreement, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04
of the Deposit Agreement, (7) a fee for the distribution of securities pursuant
to Section 4.02 of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 7 treating all such securities as if
they were Shares) but which securities are instead distributed by the Depositary
to Owners, (8) in addition to any fee charged under clause (6), a fee of $.02 or
less per American Depositary Share (or portion thereof) 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 and (9) any other charges payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.06 of the
Deposit Agreement and shall be payable at the sole discretion of the Depositary
by billing such Owners for such charge or by deducting such charge from one or
more cash dividends or other cash distributions).
The Depositary, subject to Article 8 hereof, may own and deal in any class
of securities of the Company and its affiliates and in American Depositary
Shares.
-5-
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement, the Depositary may
deliver American Depositary Shares prior to the receipt of Shares pursuant to
Section 2.02 of the Deposit Agreement (a "Pre-Release"). The Depositary may,
pursuant to Section 2.05 of the Deposit Agreement, deliver Shares upon the
surrender of American Depositary Shares that have been Pre-Released, whether or
not such cancellation is prior to the termination of such Pre-Release or the
Depositary knows that such American Depositary Shares have been Pre-Released.
The Depositary may receive American Depositary Shares in lieu of Shares in
satisfaction of a Pre-Release. Each Pre-Release will be (a) preceded or
accompanied by a written representation from the person to whom American
Depositary Shares or Shares are to be delivered, that such person, or its
customer, owns the Shares or American Depositary Shares to be remitted, as the
case may be, (b) at all times fully collateralized with cash or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of American Depositary Shares which are outstanding at any time as a
result of Pre-Release will not normally exceed thirty percent (30%) of the
Shares deposited under the Deposit Agreement; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate.
The Depositary may retain for its own account any compensation received by
it in connection with the foregoing.
9. TITLE TO RECEIPTS.
It is a condition of this Receipt and every successive Owner and holder of
this Receipt by accepting or holding the same consents and agrees that when
properly endorsed or accompanied by proper instruments of transfer, shall be
transferable as certificated registered securities under the laws of New York.
American Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Depositary,
notwithstanding any notice to the contrary, may treat the Owner of American
Depositary Shares as the absolute owner thereof for the purpose of determining
the person entitled to distribution of dividends or other distributions or to
any notice provided for in the Deposit Agreement and for all other purposes, and
neither the Depositary nor the Company shall have any obligation or be subject
to any liability under the Deposit Agreement to any holder of a Receipt unless
such holder is the Owner thereof.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary;
-6-
provided, however that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are countersigned by the
manual signature of a duly authorized officer of the Registrar.
11. REPORTS; INSPECTION OF TRANSFER BOOKS.
The Company is subject to the periodic reporting requirements of the
Securities Exchange Act of 1934 and, accordingly, files certain reports with the
Securities and Exchange Commission. Such reports will be available for
inspection and copying at the public reference facilities maintained by the
Commission located at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Depositary will make available for inspection by Owners at its
Corporate Trust Office any reports, notices and other communications, including
any proxy soliciting material, received from the Company which are both (a)
received by the Depositary as the holder of the Deposited Securities and (b)
made generally available to the holders of such Deposited Securities by the
Company. The Depositary will also, upon written request by the Company, send to
Owners copies of such reports when furnished by the Company pursuant to the
Deposit Agreement. Any such reports and communications, including any such proxy
soliciting material, furnished to the Depositary by the Company shall be
furnished in English to the extent such materials are required to be translated
into English pursuant to any regulations of the Commission.
The Depositary will keep books, at its Corporate Trust Office, for the
registration of American Depositary Shares and transfers of American Depositary
Shares which at all reasonable times shall be open for inspection by the Owners,
provided that such inspection shall not be for the purpose of communicating with
Owners in the interest of a business or object other than the business of the
Company or a matter related to the Deposit Agreement or the American Depositary
Shares.
12. DIVIDENDS AND DISTRIBUTIONS.
Whenever the Depositary receives any cash dividend or other cash
distribution on any Deposited Securities, the Depositary will, if at the time of
receipt thereof any amounts received in a foreign currency can in the judgment
of the Depositary be converted on a reasonable basis into United States dollars
transferable to the United States, and subject to the Deposit Agreement, convert
such dividend or distribution into dollars and will distribute the amount thus
received (net of the fees and expenses of the Depositary as provided in Article
7 hereof and Section 5.09 of the Deposit Agreement) to the Owners entitled
thereto; provided, however, that in the event that the Company or the Depositary
is required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes or other governmental charges, the amount distributed to the Owners of the
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly.
-7-
Subject to the provisions of Section 4.11 and 5.09 of the Deposit
Agreement, whenever the Depositary receives any distribution other than a
distribution described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement,
the Depositary will cause the securities or property received by it to be
distributed to the Owners entitled thereto, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution;
provided, however, that if in the opinion of the Depositary such distribution
cannot be made proportionately among the Owners of Receipts entitled thereto, or
if for any other reason the Depositary deems such distribution not to be
feasible, the Depositary may adopt such method as it may deem equitable and
practicable for the purpose of effecting such distribution, including, but not
limited to, the public or private sale of the securities or property thus
received, or any part thereof, and the net proceeds of any such sale (net of the
fees and expenses of the Depositary as provided in Article 7 hereof and Section
5.09 of the Deposit Agreement) will be distributed by the Depositary to the
Owners of Receipts entitled thereto all in the manner and subject to the
conditions described in Section 4.01 of the Deposit Agreement. The Depositary
may sell, by public or private sale, an amount of securities or other property
it would otherwise distribute under this Article that is sufficient to pay its
fees and expenses in respect of that distribution.
If any distribution consists of a dividend in, or free distribution of,
Shares, the Depositary may deliver to the Owners entitled thereto, an aggregate
number of American Depositary Shares representing the amount of Shares received
as such dividend or free distribution, subject to the terms and conditions of
the Deposit Agreement with respect to the deposit of Shares and after deduction
or upon issuance of American Depositary Shares, including the withholding of any
tax or other governmental charge as provided in Section 4.11 of the Deposit
Agreement and the payment of the fees and expenses of the Depositary as provided
in Article 7 hereof and Section 5.09 of the Deposit Agreement (and the
Depositary may sell, by public or private sale, an amount of Shares received
sufficient to pay its fees and expenses in respect of that distribution. In lieu
of delivering fractional American Depositary Shares in any such case, the
Depositary will sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.01of the Deposit Agreement. If additional
American Depositary Shares are not so delivered, each American Depositary Share
shall thenceforth also represent the additional Shares distributed upon the
Deposited Securities represented thereby.
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.
-8-
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, if an
Owner requests the distribution of warrants or other instruments in order to
exercise the rights allocable to the American Depositary Shares of such Owner
under the Deposit Agreement, the Depositary will make such rights available to
such Owner upon written notice from the Company to the Depositary that (a) the
Company has elected in its sole discretion to permit such rights to be exercised
and (b) such Owner has executed such documents as the Company has determined in
its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for rights
to all or certain Owners, then upon instruction from such an Owner pursuant to
such warrants or other instruments to the Depositary from such Owner to exercise
such rights, upon payment by such Owner to the Depositary for the account of
such Owner of an amount equal to the purchase price of the Shares to be received
upon the exercise of the rights, and upon payment of the fees and expenses of
the Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for such Owner,
the Depositary will cause the Shares so purchased to be deposited pursuant to
Section 2.02 of the Deposit Agreement, and shall, pursuant to Section 2.03 of
the Deposit Agreement, deliver American Depositary Shares to such Owner. In the
case of a distribution pursuant to the second paragraph of this Article 13, such
deposit shall be made, and Deposited Securities shall be delivered, under
depositary arrangements which provide for issuance of Deposited Securities
subject to the appropriate restrictions on sale, deposit, cancellation, and
transfer under applicable United States laws.
-9-
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 5.09 of the Deposit Agreement and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of the Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any American Depositary Shares or
otherwise.
The Depositary will not offer rights to Owners unless both the rights and
the securities to which such rights relate are either exempt from registration
under the Securities Act of 1933 with respect to a distribution to all Owners or
are registered under the provisions of such Act; provided, that nothing in the
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared effective. If an
Owner requests the distribution of warrants or other instruments,
notwithstanding that there has been no such registration under the Securities
Act of 1933, the Depositary shall not effect such distribution unless it has
received an opinion from recognized counsel in the United States for the Company
upon which the Depositary may rely that such distribution to such Owner is
exempt from such registration.
The Depositary shall not be responsible for any failure to determine that
it may be lawful or feasible to make such rights available to Owners in general
or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign currency,
by way of dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Owners on account of exchange restrictions, the
date of delivery of any American Depositary Shares or otherwise and shall be net
of any expenses of conversion into Dollars incurred by the Depositary as
provided in Section 5.09 of the Deposit Agreement.
-10-
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 (a) for the determination of the Owners who shall be (i)
entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting or (iii) responsible for any fee 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,
-11-
(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
the Cayman Islands or People's Republic of China and of the Corporate Document
of the Company, to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given. Upon the written
request of an Owner on such record date, received on or before the date
established by the Depositary for such purpose, the Depositary shall endeavor
insofar as practicable to vote or cause to be voted the amount of Shares or
other Deposited Securities represented by such American Depositary Shares in
accordance with the instructions set forth in such request. The Depositary shall
not vote or attempt to exercise the right to vote that attaches to the Shares or
other Deposited Securities, other than in accordance with such instructions.
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 to ensure that the Depositary will vote the Shares or
Deposited Securities in accordance with the provisions set forth in the
preceding paragraph.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
if the Company will request the Depositary to act under this Article, the
Company shall endeavor to give the Depositary notice of any such meeting or
solicitation and details concerning the matters to be voted upon sufficiently in
advance of the meeting date.
17. CHANGES AFFECTING DEPOSITED SECURITIES.
Upon any change in nominal value, change in par value, split-up,
consolidation, or any other reclassification of Deposited Securities, or upon
any recapitalization, reorganization, merger or consolidation, or sale of assets
affecting the Company or to which it is a party, or upon the redemption or
cancellation by the Company of the Deposited Securities, any securities, cash or
property which shall be received by the Depositary or a Custodian in exchange
for, in conversion of, in lieu of or in respect of Deposited Securities shall be
treated as new Deposited Securities under the Deposit Agreement, and American
Depositary Shares shall thenceforth represent, in addition to the existing
Deposited Securities, the right to receive the new Deposited Securities so
received, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder, (i) if by
-12-
reason of any provision of any present or future law or regulation of the United
States or any other country, or of any governmental or regulatory authority, or
by reason of any provision, present or future, of the Corporate Document of the
Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any act
of God or war or terrorism or other circumstances beyond its control, the
Depositary or the Company shall be prevented, delayed or forbidden from or be
subject to any civil or criminal penalty on account of doing or performing any
act or thing which by the terms of the Deposit Agreement or Deposited Securities
it is provided shall be done or performed, (ii) by reason of any non-performance
or delay, caused as aforesaid, in the performance of any act or thing which by
the terms of the Deposit Agreement it is provided shall or may be done or
performed, (iii) by reason of any exercise of, or failure to exercise, any
discretion provided for in the Deposit Agreement, (iv) for the inability of any
Owner or holder to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Owners or holders,
or (v) for any special, consequential or punitive damages for any breach of the
terms of the Deposit Agreement. Where, by the terms of a distribution pursuant
to Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, such
distribution or offering may not be made available to Owners of Receipts, and
the Depositary may not dispose of such distribution or offering on behalf of
such Owners and make the net proceeds available to such Owners, then the
Depositary shall not make such distribution or offering, and shall allow any
rights, if applicable, to lapse. Neither the Company nor the Depositary assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or holders, except that they agree to perform their obligations
specifically set forth in the Deposit Agreement without negligence or bad faith.
The Depositary shall not be subject to any liability with respect to the
validity or worth of the Deposited Securities. Neither the Depositary nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit, or other proceeding in respect of any Deposited Securities or in
respect of the American Depositary Shares, on behalf of any Owner or holder or
other person. Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or holder, 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
-13-
Custodian against, and hold each of them harmless from, any liability or expense
(including, but not limited to any fees and expenses incurred in seeking,
enforcing or collecting such indemnity and the fees and expenses of counsel)
which may arise out of any registration with the Commission of American
Depositary Shares or Deposited Securities or the offer or sale thereof in the
United States or out of acts performed or omitted, pursuant to the provisions of
or in connection with the Deposit Agreement and of the Receipts, as the same may
be amended, modified or supplemented from time to time, (i) by either the
Depositary or a Custodian or their respective directors, employees, agents and
affiliates, except for any liability or expense arising out of the negligence or
bad faith of either of them, or (ii) by the Company or any of its directors,
employees, agents and affiliates. No disclaimer of liability under the
Securities Act of 1933 is intended by any provision of the Deposit Agreement.
19. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The Depositary may at any time resign as Depositary under the Deposit
Agreement by written notice of its election so to do delivered to the Company,
such resignation to take effect upon the earlier of (i) the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement or (ii) termination by the Depositary pursuant to Section 6.02
of 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. The Depositary in its
discretion may appoint a substitute or additional custodian or custodians.
20. AMENDMENT.
The form of the Receipts and any provisions of the Deposit Agreement may
at any time and from time to time be amended by agreement between the Company
and the Depositary without the consent of Owners or holders in any respect which
they may deem necessary or desirable. Any amendment which shall impose or
increase any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
American Depositary Shares until the expiration of thirty days after notice of
such amendment shall have been given to the Owners of outstanding American
Depositary Shares. Every Owner and holder of American Depositary Shares, at the
time any amendment so becomes effective, shall be deemed, by continuing to hold
such American Depositary Shares or any interest therein, to consent and agree to
such amendment and to be bound by the Deposit Agreement as amended thereby. In
no event shall any amendment impair the right of the Owner to surrender American
Depositary
-14-
Shares and receive therefor the Deposited Securities represented thereby, except
in order to comply with mandatory provisions of applicable law.
21. TERMINATION OF DEPOSIT AGREEMENT.
The Company may terminate the Deposit Agreement by instructing the
Depositary to mail notice of termination to the Owners of all American
Depositary Shares then outstanding at least 60 days prior to the termination
date included in such notice. The Depositary may likewise terminate the Deposit
Agreement, if at any time 30 days shall have expired after the Depositary
delivered to the Company a written resignation notice and if a successor
depositary shall not have been appointed and accepted its appointment as
provided in the Deposit Agreement; in such case the Depositary shall mail a
notice of termination to the Owners of all American Depositary Shares then
outstanding at least 30 days prior to the termination date. On and after the
date of termination, the Owner of American Depositary Shares will, upon (a)
surrender of such American Depositary Shares, (b) payment of the fee of the
Depositary for the surrender of American Depositary Shares referred to in
Section 2.05, and (c) payment of any applicable taxes or governmental charges,
be entitled to delivery, to him or upon his order, of the amount of Deposited
Securities represented by those American Depositary Shares. If any American
Depositary Shares shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
American Depositary Shares, shall suspend the distribution of dividends to the
Owners thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in the Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, upon surrender of American Depositary
Shares (after deducting, in each case, the fee of the Depositary for the
surrender of American Depositary Shares, any expenses for the account of the
Owner of such American Depositary Shares in accordance with the terms and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges). At any time after the expiration of four months from the date of
termination, the Depositary may sell the Deposited Securities then held under
the Deposit Agreement and may thereafter hold uninvested the net proceeds of any
such sale, together with any other cash then held by it thereunder, unsegregated
and without liability for interest, for the pro rata benefit of the Owners of
American Depositary Shares that have not theretofore been surrendered, such
Owners thereupon becoming general creditors of the Depositary with respect to
such net proceeds. After making such sale, the Depositary shall be discharged
from all obligations under the Deposit Agreement, except to account for such net
proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of American Depositary Shares, any expenses for the
account of the Owner of such American Depositary Shares in accordance with the
terms and conditions of the Deposit Agreement, and any applicable taxes or
governmental charges). Upon the termination of
-15-
the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the Depositary with
respect to indemnification, charges, and expenses.
22. DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION SYSTEM.
(a) Notwithstanding the provisions of Section 2.04 of the Deposit
Agreement, the parties acknowledge that the Direct Registration System ("DRS")
and Profile Modification System ("Profile") shall apply to uncertificated
American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the
system administered by DTC pursuant to which the Depositary may register the
ownership of uncertificated American Depositary Shares, which ownership shall be
evidenced by periodic statements issued by the Depositary to the Owners entitled
thereto. Profile is a required feature of DRS which allows a DTC participant,
claiming to act on behalf of an Owner, to direct the Depositary to register a
transfer of those American Depositary Shares to DTC or its nominee and to
deliver those American Depositary Shares to the DTC account of that DTC
participant without receipt by the Depositary of prior authorization from the
Owner to register such transfer.
(b) In connection with and in accordance with the arrangements and
procedures relating to DRS/Profile, the parties understand that the Depositary
will not verify, determine or otherwise ascertain that the DTC participant which
is claiming to be acting on behalf of an Owner in requesting registration of
transfer and delivery described in subsection (a) has the actual authority to
act on behalf of the Owner (notwithstanding any requirements under the Uniform
Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03
and 5.08 of the Deposit Agreement shall apply to the matters arising from the
use of the DRS. The parties agree that the Depositary's reliance on and
compliance with instructions received by the Depositary through the DRS/Profile
System and in accordance with the Deposit Agreement, shall not constitute
negligence or bad faith on the part of the Depositary.
23. SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVER OF IMMUNITIES.
In the Deposit Agreement, the Company has (i) appointed CT Corporation
System, 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 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.
-16-
EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT,
EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED
SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING
EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
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.
24. ARBITRATION.
In the event the Depositary is advised that a judgment of a court in the
United States court may not be recognized, the following provisions shall apply:
(i) Any controversy, claim or cause of action brought by any party or
parties hereto against any other party or parties hereto arising out of or
relating to the Deposit Agreement shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
(ii) The place of the arbitration shall be the City of Xxx Xxxx, Xxxxx xx
Xxx Xxxx, Xxxxxx Xxxxxx of America, and the language of the arbitration shall be
English.
(iii) The number of arbitrators shall be three, each of whom shall be
disinterested in the dispute or controversy, shall have no connection with any
party thereto, and shall be an attorney experienced in international securities
transactions. Each party shall appoint one arbitrator and the two arbitrators
shall select a third arbitrator who shall serve as chairperson of the tribunal.
If a dispute, controversy or cause of action
-17-
shall involve more than two parties, the parties shall attempt to align
themselves in two sides (i.e., claimant and respondent), each of which shall
appoint one arbitrator as if there were only two parties to such dispute,
controversy or cause of action. If either or both parties fail to select an
arbitrator, or if such alignment (in the event there is more than two parties)
shall not have occurred, within sixty (60) calendar days after the initiating
party serves the arbitration demand or the two arbitrators fail to select a
third arbitrator within sixty (60) calendar days of the selection of the second
arbitrator, the American Arbitration Association shall appoint the arbitrator or
arbitrators in accordance with its rules. The parties and the American
Arbitration Association may appoint the arbitrators from among the nationals of
any country, whether or not a party is a national of that country.
(iv) The arbitrators shall have no authority to award damages not
measured by the prevailing party's actual damages and shall have no authority to
award any consequential, special or punitive damages, and may not, in any event,
make any ruling, finding or award that does not conform to the terms and
conditions of the Deposit Agreement.
In the event any third-party action or proceeding is instituted against
the Depositary relating to or arising from any act or failure to act by the
Company, the Company hereby submits to the personal jurisdiction of the court or
administrative agency in which such action or proceeding is brought.
25. COMPLIANCE WITH U.S. SECURITIES LAWS.
Notwithstanding anything in the Deposit Agreement to the contrary, the
Company and the Depositary each agrees that it will not exercise any rights it
has under the Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
-18-
