EXHIBIT 4.3
XINHUA FINANCE MEDIA LIMITED
AND
THE BANK OF NEW YORK
As Depositary
AND
OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES
Deposit Agreement
Dated as of ___________, 2007
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 DTC................................................. 3
SECTION 1.11 Foreign Registrar................................... 3
SECTION 1.12 Holder.............................................. 4
SECTION 1.13 Owner............................................... 4
SECTION 1.14 Receipts............................................ 4
SECTION 1.15 Registrar........................................... 4
SECTION 1.16 Restricted Securities............................... 4
SECTION 1.17 Securities Act of 1933.............................. 4
SECTION 1.18 Shares.............................................. 5
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
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SECTION 2.10 DTC Direct Registration System and
Profile Modification System......................... 11
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF
AMERICAN DEPOSITARY SHARES............................................ 12
SECTION 3.01 Filing Proofs, Certificates and Other information... 12
SECTION 3.02 Liability of Owner for Taxes........................ 12
SECTION 3.03 Warranties on Deposit of Shares..................... 13
ARTICLE 4. THE DEPOSITED SECURITIES.................................. 13
SECTION 4.01 Cash Distributions.................................. 13
SECTION 4.02 Distributions Other Than Cash, Shares or Rights..... 14
SECTION 4.03 Distributions in Shares............................. 14
SECTION 4.04 Rights.............................................. 15
SECTION 4.05 Conversion of Foreign Currency...................... 16
SECTION 4.06 Fixing of Record Date............................... 17
SECTION 4.07 Voting of Deposited Securities...................... 18
SECTION 4.08 Changes Affecting Deposited Securities.............. 19
SECTION 4.09 Reports............................................. 19
SECTION 4.10 Lists of Owners..................................... 20
SECTION 4.11 Withholding......................................... 20
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY............ 20
SECTION 5.01 Maintenance of Office and Transfer Books
by the Depositary................................... 20
SECTION 5.02 Prevention or Delay in Performance by the
Depositary or the Company........................... 21
SECTION 5.03 Obligations of the Depositary, the
Custodian and the Company........................... 22
SECTION 5.04 Resignation and Removal of the Depositary........... 22
SECTION 5.05 The Custodians...................................... 23
SECTION 5.06 Notices and Reports................................. 24
SECTION 5.07 Distribution of Additional Shares,
Rights, etc......................................... 24
SECTION 5.08 Indemnification..................................... 25
SECTION 5.09 Charges of Depositary............................... 25
SECTION 5.10 Retention of Depositary Documents................... 27
SECTION 5.11 Exclusivity......................................... 27
SECTION 5.12 List of Restricted Securities Owners................ 27
ARTICLE 6. AMENDMENT AND TERMINATION................................. 28
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SECTION 6.01 Amendment........................................... 28
SECTION 6.02 Termination......................................... 28
ARTICLE 7. MISCELLANEOUS............................................. 29
SECTION 7.01 Counterparts........................................ 29
SECTION 7.02 No Third Party Beneficiaries........................ 29
SECTION 7.03 Severability........................................ 30
SECTION 7.04 Owners and Holders as Parties; Binding
Effect.............................................. 30
SECTION 7.05 Notices............................................. 30
SECTION 7.06 Arbitration; Settlement of Disputes................. 31
SECTION 7.07 Submission to Jurisdiction; Appointment
of Agent for Service of Process; Jury
Trial Waiver........................................ 32
SECTION 7.08 Waiver of Immunities................................ 32
SECTION 7.09 Governing Law....................................... 33
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of __________, 2007 among XINHUA FINANCE
MEDIA LIMITED, an exempted company 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 Xinhua Finance Media Limited, an
exempted company 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 Hongkong and
Shanghai Banking Corporation Limited, as agent of the Depositary for the
purposes of this Deposit Agreement, and any other firm or corporation which may
hereafter be appointed by the Depositary pursuant to the terms of Section 5.05,
as substitute or additional custodian or custodians hereunder, as the context
shall require and shall also mean all of them collectively.
SECTION 1.05 Deliver; Surrender.
(a) The term "deliver", or its noun form, when used with respect
to Shares or other Deposited Securities, shall mean (i) one or more book-entry
transfers of those Shares or other Deposited Securities to an account maintained
by an institution authorized under applicable law to effect transfers of such
securities designated by the person entitled to that delivery or (ii) physical
transfer of certificates evidencing those Shares or other Deposited Securities
registered in the name of, or duly endorsed or accompanied by proper instruments
of transfer to, the person entitled to that delivery.
(b) The term "deliver", or its noun form, when used with respect
to American Depositary Shares, shall mean (i) one or more book-entry transfers
of American Depositary Shares to an account at DTC designated by the person
entitled to such delivery, evidencing American Depositary Shares registered in
the name requested by that person, (ii) registration of American Depositary
Shares not evidenced by a Receipt on the books of the Depositary in the name
requested by the person entitled to such delivery whereupon mailing will be made
to that person of a statement confirming that registration or (iii) if requested
by the person entitled to such delivery, delivery at the Corporate Trust Office
of the Depositary to the person entitled to such delivery of one or more
Receipts.
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(c) The term "surrender", when used with respect to American
Depositary Shares, shall mean (i) one or more book-entry transfers of American
Depositary Shares to the DTC account of the Depositary, (ii) delivery to the
Depositary at its Corporate Trust Office of an instruction to surrender American
Depositary Shares not evidenced by a Receipt or (iii) surrender to the
Depositary at its Corporate Trust Office of one or more Receipts evidencing
American Depositary Shares.
SECTION 1.06 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.07 Depositary; Corporate Trust Office.
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 and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held under this Deposit
Agreement, subject as to cash to the provisions of Section 4.05.
SECTION 1.09 Dollars.
The term "Dollars" shall mean United States dollars.
SECTION 1.10 DTC.
The term "DTC" shall mean The Depository Trust Company or its
successor.
SECTION 1.11 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other agent of the Company for the transfer and
registration of Shares, including without limitation any securities depository
for the Shares.
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SECTION 1.12 Holder.
The term "Holder" shall mean any person holding a Receipt or a
security entitlement or other interest in American Depositary Shares, whether
for its own account or for the account of another person, but that is not the
Owner of that Receipt or those American Depositary Shares.
SECTION 1.13 Owner.
The term "Owner" shall mean the person in whose name American
Depositary Shares are registered on the books of the Depositary maintained for
such purpose.
SECTION 1.14 Receipts.
The term "Receipts" shall mean the American Depositary Receipts
issued hereunder evidencing certificated American Depositary Shares, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.15 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, that is appointed by
the Depositary to register American Depositary Shares and transfers of American
Depositary Shares as herein provided.
SECTION 1.16 Restricted Securities.
The term "Restricted Securities" shall mean collectively or
individually, as the context may require, 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 that
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 that would require
registration under the Securities Act of 1933 in connection with the offer and
sale thereof in the United States, or that 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 Memorandum and Articles of Association of
the Company.
SECTION 1.17 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
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SECTION 1.18 Shares.
The term "Shares" shall mean common shares of the Company that, at
the time of deposit, are validly issued and outstanding, fully paid and
nonassessable and that were not issued in violation of any pre-emptive or
similar rights of the holders of outstanding securities of the Company;
provided, however, that, if there shall occur any change in nominal value, a
split-up or consolidation or any other reclassification or, upon the occurrence
of an event described in Section 4.08, an exchange or conversion in respect of
the Shares of the Company, the term "Shares" shall thereafter also mean the
successor securities resulting from such change in nominal value, split-up or
consolidation or such other reclassification or such exchange or conversion.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER
AND SURRENDER OF AMERICAN DEPOSITARY SHARES
SECTION 2.01 Form of Receipts; Registration and Transferability of
American Depositary Shares.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been (i) executed by the
Depositary by the manual signature of a duly authorized signatory officer of the
Depositary or (ii) executed by the facsimile signature of a duly authorized
signatory officer of the Depositary and countersigned by the manual signature of
a duly authorized signatory of the Depositary or a Registrar. The Depositary
shall maintain books on which (x) each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered
and (y) all American Depositary Shares delivered as hereinafter provided and all
registrations of transfer of American Depositary Shares shall be registered. A
Receipt bearing the facsimile signature of a person that was at any time a
proper signatory officer of the Depositary shall, subject to the other
provisions of this paragraph, bind the Depositary, notwithstanding that such
person was not a proper signatory officer of the Depositary on the date of
issuance of that Receipt.
The Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or modifications not inconsistent with the
provisions of this Deposit Agreement as may be required by the Depositary or
required to comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange (which, for all purposes
hereof, shall include the NASDAQ Stock Market, Inc.) 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.
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American Depositary Shares evidenced by a Receipt, when properly
endorsed or accompanied by proper instruments of transfer, shall be transferable
as certificated registered securities under the laws of New York. American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The Depositary,
notwithstanding any notice to the contrary, may treat the Owner of American
Depositary Shares as the absolute owner thereof for the purpose of determining
the person entitled to distribution of dividends or other distributions or to
any notice provided for in this Deposit Agreement and for all other purposes,
and neither the Depositary nor the Company shall have any obligation or be
subject to any liability under this Deposit Agreement to any holder of American
Depositary Shares unless that holder is the Owner of those American Depositary
Shares.
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 any applicable jurisdiction that 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
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certificate or certificates to the Company or the Foreign Registrar, if
applicable, for transfer and recordation of the Shares being deposited in the
name of the Depositary or its nominee or such Custodian or its nominee.
Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or at such other
place or places as the Depositary shall determine.
SECTION 2.03 Delivery of American Depositary Shares.
Upon receipt by any Custodian of any deposit pursuant to Section
2.02 hereunder, together with the other documents required as specified above,
such Custodian shall notify the Depositary of such deposit and the person or
persons to whom or upon whose written order American Depositary Shares are
deliverable in respect thereof and the number of American Depositary Shares to
be so delivered. Such notification shall be made by letter or, at the request,
risk and expense of the person making the deposit, by cable, telex or facsimile
transmission (and in addition, if the transfer books of the Company or the
Foreign Registrar, if applicable, are open, the Depositary may in its sole
discretion require a proper acknowledgment or other evidence from the Company or
the Foreign Registrar that any Deposited Securities have been recorded upon the
books of the Company or the Foreign Registrar, if applicable, in the name of the
Depositary or its nominee or such Custodian or its nominee). Upon receiving such
notice from such Custodian, or upon the receipt of Shares or evidence of the
right to receive Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall deliver, to or upon the order of
the person or persons entitled thereto, the number of American Depositary Shares
issuable in respect of that deposit, but only upon payment to the Depositary of
the fees and expenses of the Depositary for the delivery of such American
Depositary Shares as provided in Section 5.09, and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
SECTION 2.04 Registration of Transfer of American Depositary Shares;
Combination and Split-up of Receipts; Interchange of Certificated and
Uncertificated American Depositary Shares.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of American Depositary Shares on its
transfer books from time to time, upon (i) in the case of certificated American
Depositary Shares, surrender of the Receipt evidencing those American Depositary
Shares, by the Owner in person or by a duly authorized attorney, properly
endorsed or accompanied by proper instruments of transfer or (ii) in the case of
uncertificated American Depositary Shares, receipt from the Owner of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10), and, in either case, duly stamped as may
be required by the laws of the State of New York and of the United
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States of America. Thereupon the Depositary shall deliver those American
Depositary Shares to or upon the order of the person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary, upon surrender of a Receipt for the purpose of
exchanging for uncertificated American Depositary Shares, shall cancel that
Receipt and send the Owner a statement confirming that the Owner is the Owner of
the same number of uncertificated American Depositary Shares that the
surrendered Receipt evidenced. The Depositary, upon receipt of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10) from the Owner of uncertificated American
Depositary Shares for the purpose of exchanging for certificated American
Depositary Shares, shall execute and deliver to the Owner a Receipt evidencing
the same number of certificated American Depositary Shares.
The Depositary may, with notice given as promptly as practicable to
the Company, appoint one or more co-transfer agents for the purpose of effecting
registration of transfers of American Depositary Shares and combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Owners or persons entitled to American Depositary Shares and will be entitled
to protection and indemnity to the same extent as the Depositary. The Depositary
shall require each co-transfer agent that it appoints under this Section 2.04 to
give notice in writing to the Depositary accepting such appointment and agreeing
to abide by the applicable terms of this Deposit Agreement.
SECTION 2.05 Surrender of American Depositary Shares and Withdrawal
of Deposited Securities.
Upon surrender at the Corporate Trust Office of the Depositary of
American Depositary Shares for the purpose of withdrawal of the Deposited
Securities represented thereby, and upon payment of the fee of the Depositary
for the surrender of American Depositary Shares as provided in Section 5.09 and
payment of all taxes and governmental charges payable in connection with such
surrender and withdrawal of the Deposited Securities, and subject to the terms
and conditions of this Deposit Agreement, the Owner of those American Depositary
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. Such delivery shall be made, as hereinafter provided, without
unreasonable delay.
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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. Thereupon the
Depositary shall direct the Custodian to deliver at the office of such
Custodian, subject to Sections 2.06, 3.01 and 3.02 and to the other terms and
conditions of this Deposit Agreement, to or upon the written order of the person
or persons designated in the order delivered to the Depositary as above
provided, the amount of Deposited Securities represented by the surrendered
American Depositary Shares, except that the Depositary may make delivery to such
person or persons at the Corporate Trust Office of the Depositary of any
dividends or distributions with respect to the Deposited Securities represented
by those American Depositary Shares, or of any proceeds of sale of any
dividends, distributions or rights, which may at the time be held by the
Depositary.
At the request, risk and expense of any Owner so surrendering
American Depositary Shares, and for the account of such Owner, the Depositary
shall direct the Custodian to forward any cash or other property (other than
rights) comprising, and forward a certificate or certificates, if applicable,
and other proper documents of title for, the Deposited Securities represented by
the surrendered American Depositary Shares 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
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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 as provided in Section 5.01, or if any such action is deemed necessary or
advisable by the Depositary or the Company at any time or from time to time
because of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement, or for any other
reason, subject to the provisions of the following sentence. Notwithstanding
anything to the contrary in this Deposit Agreement, the surrender of outstanding
American Depositary Shares and withdrawal of Deposited Securities may not be
suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the Foreign Registrar, if applicable,
or the deposit of Shares in connection with voting at a shareholders' meeting,
or the payment of dividends, (ii) the payment of fees, taxes and similar
charges, and (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the American Depositary Shares or to the withdrawal of
the Deposited Securities. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this Deposit Agreement any Shares
in connection with a sale of those Shares that 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 for such offer and sale.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen,
the Depositary shall execute and deliver a new Receipt of like tenor in exchange
and substitution for such mutilated Receipt upon cancellation thereof, or in
lieu of and in substitution for such destroyed, lost or stolen Receipt. Before
the Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Owner thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered
Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of American Depositary Shares.
Notwithstanding Section 2.03 hereof and unless requested by the
Company in writing to cease doing so, 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
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Depositary Shares have been Pre-Released. The Depositary may receive American
Depositary Shares in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation and
agreement from the person to whom American Depositary Shares are to be delivered
(the "Pre-Releasee"), that the Pre-Releasee, or its customer, (i) owns the
Shares or American Depositary Shares to be remitted, as the case may be, (ii)
assigns all beneficial rights, title and interest in such Shares or American
Depositary Shares, as the case may be, to the Depositary in its capacity as such
and for the benefit of the Owners, and (iii) will not take any action with
respect to such Shares or American Depositary Shares, as the case may be, that
is inconsistent with the transfer of beneficial ownership (including, without
the consent of the Depositary, disposing of such Shares or American Depositary
Shares, as the case may be), other than in satisfaction of a Pre-Release, (b) at
all times fully collateralized with cash, U.S. government securities, or such
other collateral as the Depositary determines, in good faith, will provide
substantially similar liquidity and security, (c) terminable by the Depositary
on not more than five (5) business days notice, and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
number of Shares not deposited but represented by American Depositary Shares
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 disregard such limit from
time to time as it deems reasonably appropriate, and may, with the prior written
consent of the Company, change such limit for purposes of general application.
The Depositary will also set Dollar limits with respect to Pre-Release
transactions to be entered into hereunder with any particular Pre-Releasee on a
case-by-case basis as the Depositary deems appropriate. The collateral referred
to in clause (b) above shall be held by the Depositary as security for the
performance of the Pre-Releasee's obligations to the Depositary in connection
with a Pre-Release transaction, including the Pre-Releasee's obligation to
deliver Shares or American Depositary Shares upon termination of a Pre-Release
transaction (and shall not, for avoidance of doubt, constitute Deposited
Securities hereunder).
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
SECTION 2.10 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 of American Depositary
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Shares, to direct the Depositary to register a transfer of those American
Depositary Shares to DTC or its nominee and to deliver those American Depositary
Shares to the DTC account of that DTC participant without receipt by the
Depositary of prior authorization from the Owner to register such transfer.
(b) In connection with and in accordance with the arrangements and
procedures relating to DRS/Profile, the parties understand that the Depositary
will not verify, determine or otherwise ascertain that the DTC participant which
is claiming to be acting on behalf of an Owner in requesting a registration of
transfer and delivery as described in subsection (a) has the actual authority to
act on behalf of the Owner (notwithstanding any requirements under the Uniform
Commercial Code). For the avoidance of doubt, the provisions of Sections 5.03
and 5.08 shall apply to the matters arising from the use of the DRS. The parties
agree that the Depositary's reliance on and compliance with instructions
received by the Depositary through the DRS/Profile System and in accordance with
this Deposit Agreement shall not constitute negligence or bad faith on the part
of the Depositary.
ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN
DEPOSITARY SHARES
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Owner or holder may
be required from time to time to file with the Depositary or the Custodian such
proof of citizenship or residence, exchange control approval, or such
information relating to the registration on the books of the Company or the
Foreign Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or proper.
The Depositary may withhold the delivery or registration of transfer of any
American Depositary Shares or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made. If
requested in writing, the Depositary shall, as promptly as practicable, provide
the Company, at the expense of the Company, with copies of any such proofs,
certificates or other information it receives pursuant to this Section 3.01, to
the extent that disclosure is permitted under applicable law.
SECTION 3.02 Liability of Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any American Depositary Shares or
any Deposited Securities represented by any American Depositary Shares, such tax
or other governmental charge shall be payable by the Owner of such American
Depositary Shares to the Depositary. The Depositary may refuse to register any
transfer of those American Depositary Shares or any withdrawal of Deposited
Securities represented by those
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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 were
not issued in violation 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 such Shares are
eligible for deposit in accordance with this Deposit Agreement and the General
Instructions to Form F-6 under the Securities Act of 1933, and that, upon
deposit, such Shares and American Depositary Shares representing such Shares
would not be Restricted Securities. All representations and warranties deemed
made under this Section 3.03 shall survive the deposit of Shares and delivery or
surrender 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, if applicable) to the
Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively;
provided, however, that in the event that the Custodian or the Depositary shall
be required to withhold and does withhold from such cash dividend or such other
cash distribution an amount on account of taxes or other governmental charges,
the amount distributed to the Owner of the American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Owner a fraction of one cent. Any such fractional
amounts shall be rounded to the nearest whole cent and so distributed to Owners
entitled thereto. The Company or its agent will remit to the appropriate
governmental agency all amounts, if any, withheld from any cash distribution on
Deposited Securities 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.
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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 shall not be required
to make any distribution of securities under this Section 4.02 unless it has
received satisfactory assurance from the Company that the distribution does not
require registration under the Securities Act of 1933, it being agreed that an
opinion of recognized U.S. counsel for the Company upon which the Depositary may
rely will constitute reasonable assurances. 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 its fees and
expenses in respect of that distribution.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may deliver to the
Owners entitled thereto, in proportion to the number of American Depositary
Shares representing such Deposited Securities held by them respectively, an
aggregate number of American Depositary Shares representing the amount of Shares
received as such dividend or free distribution, subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares and
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
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satisfactory assurances from the Company that such distribution does not require
registration under the Securities Act of 1933, it being agreed that an opinion
of recognized U.S. counsel for the Company upon which the Depositary may rely
will constitute reasonable assurances. 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 to the Owners entitled to them, 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
entitled to them 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 otherwise withheld to them or dispose of such
rights and make the net proceeds available to such Owners, then the Depositary
shall allow the rights to lapse. If at the time of the offering of any rights
the Depositary determines in its reasonable discretion that it is lawful and
feasible to make such rights available to all or certain Owners but not to other
Owners, the Depositary may distribute to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate.
In circumstances in which rights would otherwise not be distributed,
if an Owner requests the distribution of warrants or other instruments in order
to exercise the rights allocable to the American Depositary Shares of such Owner
hereunder, the Depositary will make such rights available to such Owner upon
written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Owners, then upon instruction from such an Owner
pursuant to such warrants or other instruments to the Depositary from such Owner
to exercise such rights, upon payment by such Owner to the Depositary for the
account of such Owner of an amount equal to the purchase price of the Shares to
be received upon the exercise of the rights, and upon payment of the fees and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf
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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 depositary
shares shall be delivered, under depositary arrangements which provide for
issuance of depositary shares subject to the appropriate restrictions on sale,
deposit, cancellation, and transfer under applicable United States laws.
If the Depositary determines in its reasonable discretion that it is
not lawful and feasible to make such rights available to all or certain Owners,
it may sell the rights, warrants or other instruments in proportion to the
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 and all taxes and governmental charges
payable in connection with such rights and subject to the terms and conditions
of this Deposit Agreement) for the account of such Owners otherwise entitled to
such rights, warrants or other instruments, upon an averaged or other practical
basis without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any American Depositary Shares or
otherwise.
The Depositary will not offer rights to Owners unless both the
rights and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
all Owners or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner requests the distribution of warrants or other
instruments, notwithstanding that there has been no such registration under the
Securities Act of 1933, the Depositary shall not effect such distribution unless
it has received an opinion from recognized counsel in the United States for the
Company upon which the Depositary may rely that such distribution to such Owner
is exempt from such registration; provided, however, that the Company will have
no obligation to cause its counsel to issue such opinion at the request of such
Owner.
The Depositary shall not be responsible for any reasonable failure
to determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
SECTION 4.05 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
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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 any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which date shall be the same date, to the extent
practicable, as the record date for the Deposited Securities or, if different,
as close thereto as practicable (a) for the determination of the Owners who
shall be (i)
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entitled to receive such dividend, distribution or rights or the net proceeds of
the sale thereof, (ii) entitled to give instructions for the exercise of voting
rights at any such meeting or (iii) responsible for any fee or charge assessed
by the Depositary pursuant to this Deposit Agreement, or (b) on or after which
each American Depositary Share will represent the changed number of Shares.
Subject to the provisions of Sections 4.01 through 4.05 and to the other terms
and conditions of this Deposit Agreement, the Owners on such record date shall
be entitled, as the case may be, to receive the amount distributable by the
Depositary with respect to such dividend or other distribution or such rights or
the net proceeds of sale thereof in proportion to the number of American
Depositary Shares held by them respectively and to give voting instructions and
to act in respect of any other such matter.
SECTION 4.07 Voting of Deposited Securities.
Upon receipt of notice of any meeting of holders of Shares or other
Deposited Securities, if requested in writing by the Company, the Depositary
shall, as soon as practicable thereafter, mail to the Owners a notice, the form
of which notice shall be in the discretion of the Depositary, which shall
contain (a) such information as is contained in such notice of meeting received
by the Depositary, (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 Cayman Islands law and of the Memorandum and Articles of Association of the
Company, to instruct the Depositary as to the exercise of the voting rights, if
any, pertaining to the amount of Shares or other Deposited Securities
represented by their respective American Depositary Shares and (c) a statement
as to the manner in which such instructions may be given, including an express
indication that, if the Depositary does not receive instructions, it may deem
instructions to have been given under the last sentence of this paragraph to
give a discretionary proxy to a person designated by the Company. Upon the
written request of an Owner of American Depositary Shares on that record date,
received on or before the date established by the Depositary for the 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 those
American Depositary Shares in accordance with the instructions set forth in that
request. The Depositary shall not vote or attempt to exercise the right to vote
that attaches to Deposited Securities other than in accordance with instructions
received from Owners or deemed received under the following sentence. If (i) the
Company made a request to the Depositary as contemplated by the first sentence
of this Section 4.07 and complied with the following paragraph of this Section
4.07 and (ii) no instructions are received by the Depositary from an Owner with
respect to an amount of Deposited Securities represented by that Owner's
American Depositary Shares on or before the date established by the Depositary
for that purpose, the Depositary shall deem that Owner to have instructed the
Depositary to give, and the Depositary shall give, a discretionary proxy to a
person designated by the Company with respect to that amount of Deposited
Securities, except that such instruction shall not be deemed to have been given
and the Depositary shall not give a discretionary proxy with respect to any
matter as to which the
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Company informs the Depositary (and the Company agrees to provide that
information as promptly as practicable in writing, if applicable) that (x) the
Company does not wish to receive a discretionary proxy, (y) substantial
opposition exists or (z) the matter materially and adversely affects the rights
of holders of Shares.
In order to give Owners a reasonable opportunity to instruct the
Depositary as to the exercise of voting rights relating to Deposited Securities,
if the Company will request the Depositary to act under this Section 4.07, the
Company shall give the Depositary notice of any such meeting and details
concerning the matters to be voted upon not less than 45 days prior to the
meeting date.
There can be no assurance that Owners generally or any Owner in
particular will receive the notice described in the first paragraph of this
Section 4.07 sufficiently prior to the instruction cutoff date to ensure that
the Depositary will vote the Shares or Deposited Securities in accordance with
the provisions set forth in that paragraph.
SECTION 4.08 Changes Affecting Deposited Securities.
Upon any change in nominal value, change in par value, split-up,
consolidation or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, or upon the redemption or
cancellation by the Company of the Deposited Securities, any securities, cash or
property which shall be received by the Depositary or a Custodian in exchange
for, in conversion of, in lieu of or in respect of Deposited Securities, shall
be treated as new Deposited Securities under this Deposit Agreement, and
American Depositary Shares shall thenceforth represent, in addition to the
existing Deposited Securities, the right to receive the new Deposited Securities
so received, unless additional Receipts are delivered pursuant to the following
sentence. In any such case the Depositary may execute and deliver additional
Receipts as in the case of a dividend in Shares, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts specifically describing
such new Deposited Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Owners at its
Corporate Trust Office, as promptly as practicable after receipt, any reports
and communications, including any proxy solicitation material, received from the
Company which are both (a) received by the Depositary as the holder of the
Deposited Securities and (b) made generally available to the 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
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such materials are required to be translated into English pursuant to any
regulations of the Commission.
SECTION 4.10 Lists of Owners.
Promptly upon request by the Company, the Depositary shall, at the
expense of the Company, furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names American Depositary Shares are registered on the books of the Depositary.
SECTION 4.11 Withholding.
The Company or its agents will remit to the appropriate governmental
agencies all amounts withheld and owing to such agencies in respect of
distributions on Deposited Securities. The Depositary will forward to the
Company or its agents such information from its records as the Company shall
reasonably request to enable the Company or its agents to file necessary reports
with governmental agencies, and the Depositary or the Company or its agent may
file any such reports necessary to obtain benefits under the applicable tax
treaties for the Owners. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charge which the Depositary is
obligated to withhold, the Depositary may by public or private sale dispose of
all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner as the Depositary deems necessary
and practicable to pay such taxes or charges and the Depositary shall distribute
the net proceeds of any such sale after deduction of such taxes or charges to
the Owners entitled thereto in proportion to the number of American Depositary
Shares held by them respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for
the registration of American Depositary Shares and transfers of American
Depositary Shares which at all reasonable times shall be open for inspection by
the Owners and the Company, provided that such inspection shall not be for the
purpose of communicating with Owners in the interest of a business or object
other than the business of the Company or a matter related to this Deposit
Agreement or the American Depositary Shares.
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The Depositary may close the transfer books, at any time or from
time to time, when deemed expedient by it in connection with the performance of
its duties hereunder or at the reasonable written request of the Company.
If any American Depositary Shares are listed on one or more stock
exchanges in the United States, the Depositary shall act as Registrar or, with
notice given as promptly as practicable to the Company, appoint a Registrar or
one or more co-registrars for registry of such American Depositary Shares in
accordance with any requirements of such exchange or exchanges. The Depositary
shall require each Registrar or co-registrar that it appoints under this Section
5.01 to give notice in writing to the Depositary accepting such appointment and
agreeing to abide by the applicable terms of this Deposit Agreement.
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or Holder (i) if by reason of any provision of any present or future law
or regulation of the United States or any other country, or of any governmental
or regulatory authority or stock exchange, or by reason of any provision,
present or future, of the Memorandum and Articles of Association of the Company,
or by reason of any provision of any securities issued or distributed by the
Company, or any offering or distribution thereof, or by reason of any act of God
or war or terrorism or other circumstances beyond its control, the Depositary or
the Company shall be prevented, delayed or forbidden from, or be subject to any
civil or criminal penalty on account of, doing or performing any act or thing
which by the terms of this Deposit Agreement or the Deposited Securities it is
provided shall be done or performed, (ii) by reason of any nonperformance or
delay, caused as aforesaid, in the performance of any act or thing which by the
terms of this Deposit Agreement it is provided shall or may be done or
performed, (iii) by reason of any exercise of, or failure to exercise, any
discretion provided for in this Deposit Agreement, (iv) for the inability of any
Owner or holder to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Owners or holders,
or (v) for any special, consequential or punitive damages for any breach of the
terms of this Deposit Agreement. Where, by the terms of a distribution pursuant
to Section 4.01, 4.02 or 4.03, or an offering or distribution pursuant to
Section 4.04, or for any other reason, such distribution or offering may not be
made available to Owners, and the Depositary may not dispose of such
distribution or offering on behalf of such Owners and make the net proceeds
available to such Owners, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse in each chase
without liability to the Company or the Depositary.
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SECTION 5.03 Obligations of the Depositary, the Custodian and the
Company.
Neither the Company, nor its directors, officers, employees and
agents assumes any obligation nor shall it or any of them 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.
Neither Depositary, nor its directors, officers, employees and
agents, assumes any obligation nor shall it or any of them be subject to any
liability under this Deposit Agreement to any Owner or Holder (including,
without limitation, liability with respect to the validity or worth of the
Deposited Securities), except that the Depositary agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the American Depositary
Shares on behalf of any Owner or Holder or any other person.
Neither the Depositary nor the Company shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions made by
a successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
The Depositary shall not be responsible for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any such vote is cast or the effect of any such vote, provided that any
such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04 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
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upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days
prior written notice of such removal, to become effective upon the later of (i)
the 120th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall use its reasonable efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of the Company shall execute and deliver an instrument transferring to
such successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor and shall deliver to such successor a list of the
Owners of all outstanding American Depositary Shares. Any such successor
depositary shall promptly mail notice of its appointment to the Owners.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to
the directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If, upon the effectiveness of
such resignation, there would be no Custodian acting hereunder, the Depositary
shall, promptly after receiving such notice, appoint a substitute custodian or
custodians, each of which shall thereafter be a Custodian hereunder. 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.
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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.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
If the Company or any affiliate of the Company determines to
make any issuance or distribution of (1) additional Shares, (2) rights to
subscribe for Shares, (3) securities convertible into Shares, or (4) rights to
subscribe for such securities (each a "Distribution"), the Company shall notify
the Depositary in writing in English as promptly as practicable and in any event
before the Distribution starts and, if requested in writing by the Depositary,
the Company shall promptly furnish to the Depositary a written opinion from U.S.
counsel for the Company that is reasonably satisfactory to the Depositary,
stating whether or not the Distribution requires registration under the
Securities Act of 1933. If, in the opinion of that counsel, the Distribution
would require registration under the Securities Act of 1933, that counsel shall
furnish to the Depositary a written opinion as to whether or not there is a
registration statement under the Securities Act of 1933 in effect that will
cover that Distribution.
-24-
The Company agrees with the Depositary that neither the
Company nor any company controlled by, controlling or under common control with
the Company will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate, unless a
Registration Statement is in effect as to such Shares under the Securities Act
of 1933 or the Company delivers to the Depositary an opinion of United States
counsel, satisfactory to the Depositary, to the effect that, upon deposit, the
Shares to be deposited could be offered and sold publicly by the holder in the
United States without further registration under 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 the
reasonable fees and expenses of counsel) which may arise out of or in connection
with (a) any registration with the Commission of American Depositary Shares or
Deposited Securities or the offer or sale thereof in the United States or (b)
acts performed or omitted, pursuant to the provisions of or in connection with
this Deposit Agreement and of the Receipts, as the same may be amended, modified
or supplemented from time to time, (i) by either the Depositary or a Custodian
or their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, or (ii) by the Company or any of its directors, employees, agents and
affiliates.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees of counsel) which
may arise out of acts performed or omitted by the Depositary or its Custodian or
their respective directors, employees, agents and affiliates due to their
negligence or bad faith.
If an action, proceeding (including, but not limited to, any
governmental investigation), claim or dispute (collectively, a "Proceeding") in
respect of which indemnity may be sought by either party is brought or asserted
against the other party, the party seeking indemnification (the "Indemnitee")
shall promptly (and in no event more than ten (10) days after receipt of notice
of such Proceeding) notify the party obligated to provide such indemnification
(the "Indemnitor") of such Proceeding. The failure of the Indemnitee to so
notify the Indemnitor shall not impair the Indemnitee's ability to seek
indemnification from the Indemnitor (but only for costs, expenses and
liabilities incurred after such notice) unless such failure adversely affects
the Indemnitor's ability to adequately oppose or defend such Proceeding. Upon
receipt of such notice from the Indemnitee, the Indemnitor shall be entitled to
participate in such Proceeding and, to the extent that it shall so desire and
provided no conflict of interest exists as specified in subparagraph (b) below
or there are no other defenses available to Indemnitee as specified in
subparagraph (d) below, to assume the defense thereof with counsel
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reasonably satisfactory to the Indemnitee (in which case all attorney's fees and
expenses shall be borne by the Indemnitor and the Indemnitor shall in good faith
defend the Indemnitee). The Indemnitee shall have the right to employ separate
counsel in any such Proceeding and to participate in the defense thereof, but
the fees and expenses of such counsel shall be borne by the Indemnitee unless
(a) the Indemnitor agrees in writing to pay such fees and expenses, (b) the
Indemnitee shall have reasonably and in good faith concluded that there is a
conflict of interest between the Indemnitor and the Indemnitee in the conduct of
the defense of such action, (c) the Indemnitor fails, within ten (10) days prior
to the date the first response or appearance is required to be made in such
Proceeding, to assume the defense of such Proceeding with counsel reasonably
satisfactory to the Indemnitee or (d) there are legal defenses available to
Indemnitee that are different from or are in addition to those available to the
Indemnitor. No compromise or settlement of such Proceeding may be effected by
either party without the other party's consent unless (i) there is no finding or
admission of any violation of law and no effect on any other claims that may be
made against such other party and (ii) the sole relief provided is monetary
damages that are paid in full by the party seeking the settlement. Neither party
shall have any liability with respect to any compromise or settlement effected
without its consent, which shall not be unreasonably withheld. The Indemnitor
shall have no obligation to indemnify and hold harmless the Indemnitee from any
loss, expense or liability incurred by the Indemnitee as a result of a default
judgment entered against the Indemnitee unless such judgment was entered after
the Indemnitor agreed, in writing, to assume the defense of such Proceeding.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees and out-of-pocket expenses
of the Depositary and those of any Registrar only in accordance with agreements
in writing entered into between the Depositary and the Company from time to
time. The Depositary shall present its statement for such charges and expenses
to the Company once every three months. The charges and expenses of the
Custodian are from the sole accounts of the Depositary.
The following charges shall be incurred by any party
depositing or withdrawing Shares or by any party surrendering American
Depositary Shares or to whom American Depositary Shares are issued (including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the American
Depositary Shares or Deposited Securities or a delivery of American Depositary
Shares pursuant to Section 4.03), or by Owners, as applicable: (1) taxes and
other governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals hereunder, (3) such cable,
telex and facsimile transmission
-26-
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) 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.
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.
Subject to Sections 5.04 and 6.02, 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. The Company agrees to
advise in writing each of the persons or entities so listed that such Restricted
Securities are ineligible for deposit
-27-
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.
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 30 days prior to the
termination date included in such notice. The Depositary may likewise terminate
this Deposit Agreement if at any time 60 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
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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 six months from the date
of termination, the Depositary may sell the Deposited Securities then held under
this Deposit Agreement 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 for its obligations to
the Company under Section 5.08 and 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 obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09.
ARTICLE 7. MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of such
counterparts shall constitute one and the same instrument. Copies of this
Deposit Agreement shall be filed with the Depositary and the Custodians and
shall be open to inspection by any Owner or Holder during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the
parties hereto and shall not be deemed to give any legal or equitable right,
remedy or claim whatsoever to any other person.
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SECTION 7.03 Severability.
In case any one or more of the provisions contained in this
Deposit Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 Owners and Holders as Parties; Binding Effect.
The Owners and Holders from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance of American Depositary Shares or any
interest therein.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to Xinhua Finance Media
Limited, Rooms 3905-3909, Xxxxx 0, Xxxxx Xxxxxxx, 0 Xxxxxxxx Xx, Xxxxxxxx
200030, People's Republic of China, Attention: _____________ or any other place
to which the Company may have transferred its principal office with notice to
the Depositary.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if in English and personally delivered or sent by
mail or cable, telex or facsimile transmission confirmed by letter, addressed to
The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office with notice to the
Company.
Any and all notices to be given to any Owner shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission confirmed by letter, addressed to such Owner at the
address of such Owner as it appears on the transfer books for 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.
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SECTION 7.06 Arbitration; Settlement of Disputes.
(a) Any controversy, claim or cause of action brought by any
party hereto against the Company arising out of or relating to the Shares or
other Deposited Securities, the American Depositary Shares, the Receipts or this
Deposit Agreement, or the breach hereof or thereof, 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; provided, that in the
event of any third-party litigation to which the Depositary is a party and to
which the Company may properly be joined, the Company may be so joined in any
court in which such litigation is proceeding; and provided further that any such
controversy, claim or cause of action relating to or based upon the provisions
of the Federal securities laws of the United States or the rules and regulations
promulgated thereunder shall be submitted to arbitration as provided in this
Section 7.06 only if so elected by the claimant.
The place of the arbitration shall be Xxx Xxxx xx Xxx Xxxx,
Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, and the language of the arbitration
shall be English.
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
arbitrators shall appoint 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 60
calendar days after the initiating party serves the arbitration demand or the
two arbitrators fail to sect a third arbitrator within 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 from among the nationals of
any country, whether or not a party is a national of that country.
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 Agreement.
(b) Any controversy, claim or cause of action arising out of
or relating to the Shares or other Deposited Securities, the American Depositary
Shares, the Receipts or this Deposit Agreement not subject to arbitration under
subsection (a) shall be litigated in the Federal and state courts in the Borough
of Manhattan, The City of New York.
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SECTION 7.07 Submission to Jurisdiction; Appointment of Agent for
Service of Process; Jury Trial Waiver.
The Company hereby (i) irrevocably designates and appoints Law
Debenture Corporate Services Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, in the State of New York, as the Company's authorized agent upon
which process may be served in any suit or proceeding arising out of or relating
to the Shares or Deposited Securities, the American Depositary Shares, the
Receipts or this Agreement, (ii) consents and submits to the jurisdiction of any
state or federal court in the State of New York in which any such suit or
proceeding may be instituted, and (iii) agrees that service of process upon said
authorized agent shall be deemed in every respect effective service of process
upon the Company in any such suit or proceeding. The Company agrees to deliver,
upon the execution and delivery of this Deposit Agreement, a written acceptance
by such agent of its appointment as such agent. The Company further agrees to
take any and all action, including the filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment in
full force and effect for so long as any American Depositary Shares or Receipts
remain outstanding or this Agreement remains in force. In the event the Company
fails to continue such designation and appointment in full force and effect, the
Company hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified for
notices hereunder, and service so made shall be deemed completed five (5) days
after the same shall have been so mailed.
EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN
ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER
DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THIS
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 7.08 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
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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 7.09 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, without regard to its
conflicts of laws rules or principles, except with respect to its authorization
and execution by the Company, which shall be governed by the laws of the Cayman
Islands.
-33-
IN WITNESS WHEREOF, XINHUA FINANCE MEDIA LIMITED and THE BANK
OF NEW YORK have duly executed this Deposit Agreement as of the day and year
first set forth above and all Owners and Holders shall become parties hereto
upon acceptance by them of American Depositary Shares or any interest therein.
XINHUA FINANCE MEDIA
LIMITED
By:
---------------------
Name:
Title:
THE BANK OF NEW YORK,
as Depositary
By:
---------------------
Name:
Title:
-34-
EXHIBIT A
AMERICAN DEPOSITARY SHARES
(Each American Depositary Share represents
two deposited Shares)
THE BANK OF NEW YORK
AMERICAN DEPOSITARY RECEIPT
FOR COMMON SHARES OF
THE PAR VALUE OF $0.001 EACH OF
XINHUA FINANCE MEDIA 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 common shares (herein called "Shares") of Xinhua Finance
Media Limited, an exempted company incorporated under the laws of the Cayman
Islands (herein called the "Company"). At the date hereof, each American
Depositary Share represents two Shares deposited or subject to deposit under the
Deposit Agreement (as such term is hereinafter defined) at the principal Hong
Kong office of Hongkong and Shanghai Banking Corporation Limited (herein called
the "Custodian"). The Depositary's Corporate Trust Office is located at a
different address than its principal executive office. Its Corporate Trust
Office is located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, and its principal
executive office is located at Xxx Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000.
THE DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
000 XXXXXXX XXXXXX, XXX XXXX, X.X. 00000
1. 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 __________, 2007 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all Owners
and holders from time to time of American Depositary Shares issued thereunder,
each of whom by accepting American Depositary Shares agrees to become a party
thereto and become bound by all the terms and conditions thereof. The Deposit
Agreement sets forth the rights of Owners and holders and the rights and duties
of the Depositary in respect of the Shares deposited thereunder and any and all
other securities, property and cash from time to time received in respect of
such Shares and held thereunder (such Shares, securities, property, and cash are
herein called "Deposited Securities"). Copies of the Deposit Agreement are on
file at the Depositary's Corporate Trust Office in New York City and at the
office of the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and are qualified by
and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. Capitalized terms defined in the Deposit Agreement and
not defined herein shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER OF RECEIPTS AND WITHDRAWAL OF SHARES.
Upon surrender at the Corporate Trust Office of the Depositary of
American Depositary Shares, and upon payment of the fee of the Depositary
provided in this Receipt, and subject to the terms and conditions of the Deposit
Agreement, the Owner of those American Depositary Shares is entitled to
delivery, to him or as instructed, of the amount of Deposited Securities at the
time represented by those American Depositary Shares. Delivery of such Deposited
Securities may be made by the delivery of (a) certificates or account transfer
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 in connection with a sale of those Shares that 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.
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 were not issued in violation 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
such Shares are eligible for deposit in accordance with the Deposit Agreement
and the General Instructions to Form F-6 under the Securities Act of 1933, and
that, upon deposit, such Shares and American Depositary Shares representing such
Shares would not be Restricted Securities. All representations and warranties
deemed made under Section 3.03 of the Deposit Agreement shall survive the
deposit of Shares and delivery or surrender 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
-4-
or such representations and warranties made. 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 any applicable
jurisdiction that 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) 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).
-5-
The Depositary, subject to Article 8 hereof, may own and deal in any
class of securities of the Company and its affiliates and in American Depositary
Shares.
8. PRE-RELEASE OF RECEIPTS.
Notwithstanding Section 2.03 of the Deposit Agreement and
unless requested by the Company in writing to cease doing so, the Depositary may
deliver American Depositary Shares prior to the receipt of Shares pursuant to
Section 2.02 of that 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 and agreement from the person to whom
American Depositary Shares are to be delivered (the "Pre-Releasee"), that the
Pre-Releasee, or its customer, (i) owns the Shares or American Depositary Shares
to be remitted, as the case may be, (ii) assigns all beneficial rights, title
and interest in such Shares or American Depositary Shares, as the case may be,
to the Depositary in its capacity as such and for the benefit of the Owners, and
(iii) will not take any action with respect to such Shares or American
Depositary Shares, as the case may be, that is inconsistent with the transfer of
beneficial ownership (including, without the consent of the Depositary,
disposing of such Shares or American Depositary Shares, as the case may be),
other than in satisfaction of a Pre-Release, (b) at all times fully
collateralized with cash, U.S. government securities, or such other collateral
as the Depositary determines, in good faith, will provide substantially similar
liquidity and security, (c) terminable by the Depositary on not more than five
(5) business days notice, and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The number of Shares not
deposited but represented by American Depositary Shares 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 disregard such limit from time to time as it deems
reasonably appropriate, and may, with the prior written consent of the Company,
change such limit for purposes of general application. The Depositary will also
set Dollar limits with respect to Pre-Release transactions to be entered into
hereunder with any particular Pre-Releasee on a case-by-case basis as the
Depositary deems appropriate. The collateral referred to in clause (b) above
shall be held by the Depositary as security for the performance of the
Pre-Releasee's obligations to the Depositary in connection with a Pre-Release
transaction, including the Pre-Releasee's obligation to deliver Shares or
American Depositary Shares upon transaction of a Pre-Release transaction (and
shall not, for avoidance of doubt, constitute Deposited Securities).
The Depositary may retain for its own account any compensation received
by it in connection with the foregoing.
-6-
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 American
Depositary Shares unless that Holder is the Owner of those American Depositary
Shares.
10. VALIDITY OF RECEIPT.
This Receipt shall not be entitled to any benefits under the Deposit
Agreement or be valid or obligatory for any purpose, unless this Receipt shall
have been executed by the Depositary by the manual signature of a duly
authorized signatory of the Depositary; provided, however that such signature
may be a facsimile if a Registrar for the Receipts shall have been appointed and
such Receipts are countersigned by the manual signature of a duly authorized
signatory 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
-7-
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 Section
5.09 of the Deposit Agreement, if applicable) to the Owners entitled thereto;
provided, however, that in the event that the Company or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes or other governmental charges, the amount distributed to the Owners of the
American Depositary Shares representing such Deposited Securities shall be
reduced accordingly.
Subject to the provisions of 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 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 shall not be required to
make any distribution of securities under Section 4.02 of the Deposit Agreement
unless it has received satisfactory assurances from the Company that the
distribution does not require registration under the Securities Act of 1933, it
being agreed that an opinion of recognized U.S. counsel for the Company upon
which the Depositary may rely will constitute reasonable assurances. 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.
-8-
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). 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, it being agreed
that an opinion of recognized U.S. counsel for the Company upon which the
Depositary may rely will constitute reasonable assurances. 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 4.01 of 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.
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
entitle to them 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 otherwise entitled to them or dispose of such
rights and make the net proceeds available to such Owners, then the Depositary
shall allow the rights to lapse. If at the time of the offering of any rights
the Depositary determines in its reasonable discretion that it is lawful and
feasible to make such rights available to all or certain Owners but not to other
Owners, the Depositary may distribute
-9-
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 depositary shares shall be
delivered, under depositary arrangements which provide for issuance of
depositary shares subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under applicable United States laws.
If the Depositary determines in its reasonable discretion that it is
not lawful and feasible to make such rights available to all or certain Owners,
it may sell the rights, warrants or other instruments in proportion to the
number of American Depositary Shares held by the Owners to whom it has
determined it may not lawfully or feasibly make such rights available, and
allocate the net proceeds of such sales (net of the fees and expenses of the
Depositary as provided in Section 5.09 of the Deposit Agreement and all taxes
and governmental charges payable in connection with such rights and subject to
the terms and conditions of the Deposit Agreement) for the account of such
Owners otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Owners because of exchange restrictions or the date of delivery of any American
Depositary Shares or otherwise.
The Depositary will not offer rights to Owners unless both the rights
and the securities to which such rights relate are either exempt from
registration under the
-10-
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 reasonable failure to
determine that it may be lawful or feasible to make such rights available to
Owners in general or any Owner in particular.
14. CONVERSION OF FOREIGN CURRENCY.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to the Owners
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any American Depositary Shares or
otherwise and shall be net of any expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.09 of the Deposit Agreement.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
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If any such conversion of foreign currency, in whole or in part, cannot
be effected for distribution to some of the Owners entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Owners entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled thereto.
15. RECORD DATES.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which date shall be the same date, to the extent
practicable, as the record date for the Deposited Securities or, if different,
as close thereto as practicable (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting or (iii) responsible for any fee
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 discretion of the
Depositary, which shall contain (a) such information as is contained in such
notice of meeting received by the Depositary, (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 law and of the Memorandum and Articles of
Association of the Company, to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the amount of Shares or other Deposited
Securities represented by their respective American Depositary Shares and (c) a
statement as to the manner in which such instructions may be given, including an
express indication that, if the Depositary does not receive instructions, it may
deem instructions to have been given under the last sentence of this paragraph
to give a discretionary proxy to a person designated by the Company. Upon the
written request of an Owner of American Depositary Shares on that record date,
received on or before the date established by the Depositary for the 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 those
American Depositary Shares in accordance with the instructions set forth in that
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request. The Depositary shall not vote or attempt to exercise the right to vote
that attaches to Deposited Securities other than in accordance with instructions
received from Owners or deemed received under the following sentence. If (i) the
Company made a request to the Depositary as contemplated by the first sentence
of this paragraph and complied with the following paragraph and (ii) no
instructions are received by the Depositary from an Owner with respect to an
amount of Deposited Securities represented by that Owner's American Depositary
Shares on or before the date established by the Depositary for that purpose, the
Depositary shall deem that Owner to have instructed the Depositary to give, and
the Depositary shall give, a discretionary proxy to a person designated by the
Company with respect to that amount of Deposited Securities, except that such
instruction shall not be deemed to have been given and the Depositary shall not
give a discretionary proxy with respect to any matter as to which the Company
informs the Depositary (and the Company agrees to provide that information as
promptly as practicable in writing, if applicable) that (x) the Company does not
wish to receive a discretionary proxy, (y) substantial opposition exists or (z)
the matter materially and adversely affects the rights of holders of Shares.
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 Section 4.07
of the Deposit Agreement, the Company shall give the Depositary notice of any
such meeting and details concerning the matters to be voted upon not less than
45 days prior to the meeting date.
There can be no assurance that Owners generally or any Owner
in particular will receive the notice described in Section 4.07 of the Deposit
Agreement sufficiently prior to the instruction cutoff date to ensure that the
Depositary will vote the Shares or Deposited Securities in accordance with the
provisions set forth in Section.
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.
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18. LIABILITY OF THE COMPANY AND DEPOSITARY.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Owner or holder, (i) if by reason of any provision of any present or future law
or regulation of the United States or any other country, or of any governmental
or regulatory authority, or by reason of any provision, present or future, of
the Memorandum and Articles of Association of the Company, or by reason of any
provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed or forbidden from or be subject to any civil
or criminal penalty on account of doing or performing any act or thing which by
the terms of the Deposit Agreement or Deposited Securities it is provided shall
be done or performed, (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, in each case
without liability to the Company or the Depositary. Neither the Company nor the
Depositary nor their respective directors, officers, employees or agents assumes
any obligation or shall be subject to any liability under the Deposit Agreement
to Owners or holders, except that each of the Company and the Depositary agree
to perform their obligations specifically set forth in the Deposit Agreement
without negligence or bad faith. The Depositary shall not be subject to any
liability with respect to the validity or worth of the Deposited Securities.
Neither the Depositary nor the Company shall be under any obligation to appear
in, prosecute or defend any action, suit, or other proceeding in respect of any
Deposited Securities or in respect of the 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
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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. 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 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
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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 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.
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(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.
22. ARBITRATION; SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVER OF
IMMUNITIES.
The Deposit Agreement provides that any controversy, claim or cause of
action brought by any party to the Deposit Agreement against the Company arising
out of or relating to the Shares or other Deposited Securities, the Global
Depositary Shares, the Receipts or the Deposit Agreement, or the breach thereof,
shall be settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association, and that judgment upon the award
rendered by the arbitrators may be entered in any court having jurisdiction
thereof; provided, that in the event of any third-party litigation to which the
Depositary is a party and to which the Company may properly be joined, the
Company may be so joined in any court in which such litigation is proceeding;
and provided further that any such controversy, claim or cause of action that
relates to or is based upon the provisions of the Federal securities laws of the
United States or the rules and regulations promulgated thereunder shall be
submitted to arbitration as provided in the Deposit Agreement only if so elected
by the claimant. The Deposit Agreement further provides that any controversy,
claim or cause of action arising out of or relating to the Shares or other
Deposited Securities, the Global Depositary Shares, the Receipts or the Deposit
Agreement not subject to arbitration above shall be
-17-
litigated in the Federal and state courts in the Borough of Manhattan, The City
of New York.
In the Deposit Agreement, the Company has (i) appointed Law Debenture
Corporate Services Inc., 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, in the State of New York, as the Company's authorized agent upon which
process may be served in any suit or proceeding arising out of or relating to
the Shares or Deposited Securities, the American Depositary Shares, the Receipts
or this Agreement, (ii) consented and submitted to the jurisdiction of any state
or federal court in the State of New York in which 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.
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.
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