AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
Exhibit (a)(2)
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of January __, 2011 (the “Amendment”), to the Deposit
Agreement dated as of September 22, 2010 (the “Deposit Agreement”), among SouFun Holdings
Limited, an exempted limited liability company organized under the laws of the Cayman Islands (the
“Company”), JPMorgan Chase Bank, N.A., as depositary (the “Depositary”), and all
holders from time to time of American depositary receipts (“ADRs”) issued thereunder.
WITNESSETH:
WHEREAS, the Company and the Depositary executed the Deposit Agreement for the purposes set
forth therein; and
WHEREAS, pursuant to paragraph (16) of the form of ADR contained in the Deposit Agreement, the
Company and the Depositary desire to amend the terms of the Deposit Agreement and ADRs.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Company and the Depositary hereby agree to amend the Deposit Agreement as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise defined in this Amendment, all capitalized
terms used, but not otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. All references in the Deposit Agreement to the term “Deposit Agreement” shall,
as of the Effective Date (as herein defined), refer to the Deposit Agreement, dated as of September
22, 2010, as amended by this Amendment.
SECTION 2.02. Section 1(c) of the Deposit Agreement is amended by replacing “four Shares” with
“one Share”.
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. All references in the form of ADR to the number of Shares represented by each
ADS is amended to reflect that each ADS represents one Share.
SECTION 3.02. The form of ADR, reflecting the amendments set forth herein, is amended and
restated to read as set forth as Exhibit A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and warrants to,
and agrees with, the Depositary and the Holders, that:
(a) This Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit Agreement as amended
hereby constitute the legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent
transfer, moratorium and similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or admissibility into evidence
of this Amendment or the Deposit Agreement as amended hereby, neither of such agreements need to be
filed or recorded with any court or other authority in the People’s Republic of China, nor does any
stamp or similar tax or governmental charge need to be paid in the People’s Republic of China on or
in respect of such agreements.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. Effective Date. This Amendment is dated as of the date set forth above
and shall be effective as of the time and date upon which the registration statement on Form F-6 or
a pre-effective amendment thereto, as applicable, to which this Amendment is filed as an exhibit,
has been declared effective by the U.S. Securities and Exchange Commission (the “Effective
Date”).
SECTION 5.02. Outstanding ADRs. ADRs issued prior or subsequent to the date hereof,
which do not reflect the changes to the form of ADR effected hereby, do not need to be called in
for exchange and may remain outstanding until such time as the Holders thereof choose to surrender
them for any reason under the Deposit Agreement. The Depositary is authorized and directed to take
any and all actions deemed necessary to effect the foregoing.
SECTION 5.03. Indemnification. The parties hereto shall be entitled to the benefits of
the indemnification provisions of Section 16 of the Deposit Agreement in connection with any and
all liability it or they may incur as a result of the terms of this Amendment and the transactions
contemplated herein.
SECTION 5.04. Counterparts. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken together shall
constitute one instrument.
[Signature Page to Follow]
IN WITNESS WHEREOF, the Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth above.
| SOUFUN HOLDINGS LIMITED |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| JPMORGAN CHASE BANK, N.A. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
No. of ADSs:
Number
Each ADS represents
one Class A ordinary share
one Class A ordinary share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
CLASS A ORDINARY SHARES
of
SOUFUN HOLDINGS LIMITED
(Incorporated under the laws of the Cayman Islands)
JPMORGAN CHASE BANK, N.A., a national banking association organized under the laws of the
United States of America, as depositary hereunder (the “Depositary”), hereby certifies that
is the registered owner (a “Holder”) of American Depositary Shares
(“ADSs”), each (subject to paragraph (13)) representing one Class A ordinary share (including the
rights to receive Shares described in paragraph (1), “Shares” and, together with any other
securities, cash or property from time to time held by the Depositary in respect or in lieu of
deposited Shares, the “Deposited Securities”), of SouFun Holdings Limited, an exempted limited
liability company organized under the laws of the Cayman Islands (the “Company”), deposited under
the Deposit Agreement dated as of September 22, 2010 (as amended from time to time, the “Deposit
Agreement”), among the Company, the Depositary and all Holders from time to time of American
Depositary Receipts issued thereunder (“ADRs”), each of whom by accepting an ADR becomes a party
thereto. The Deposit Agreement and this ADR (which includes the provisions set forth on the
reverse hereof) shall be governed by and construed in accordance with the laws of the State of New
York.
(1) Issuance and Pre-Release of ADSs. This ADR is one of the ADRs issued under the Deposit
Agreement. The Depositary may issue ADRs for delivery at the Transfer Office (defined in paragraph
(3)) only against deposit of: (a) Shares in form reasonably satisfactory to the
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Custodian; (b)
rights to receive Shares from the Company or any registrar, transfer agent, clearing agent or other
entity recording Share ownership or transactions; or (c) in accordance with the next paragraph of
this paragraph (1). Subject to the further terms and provisions of the Deposit Agreement, the
Depositary, its affiliates and their agents, on their own behalf, may own and deal in any class of
securities of the Company and its affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary may (i) issue ADSs
prior to the receipt of Shares and (ii) deliver Shares prior to the receipt of ADSs for withdrawal
of Deposited Securities, including ADSs which were issued under (i) above but for which Shares may
not have been received (each such transaction a “Pre-Release”). The Depositary may receive ADSs in
lieu of Shares under (i) above (which ADSs will promptly be canceled by the Depositary upon receipt
by the Depositary) and receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release will
be subject to a written agreement whereby the person or entity (the “Applicant”) to whom ADSs or
Shares are to be delivered (a) represents that at the time of the Pre-Release the Applicant or its
customer owns the Shares or ADSs that are to be delivered by the Applicant under such Pre-Release,
(b) agrees to indicate the Depositary as owner of such Shares or ADSs in its records and to hold
such Shares or ADSs in trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (c) unconditionally guarantees to deliver to the Depositary or the
Custodian, as applicable, such Shares or ADSs, and (d) agrees to any additional restrictions or
requirements that the Depositary deems appropriate. Each such Pre-Release will be at all times
fully collateralized with cash, U.S. government securities or such other collateral as the
Depositary deems appropriate, terminable by the Depositary on not more than five (5) business days’
notice and subject to such further indemnities and credit regulations as the Depositary deems
appropriate. The Depositary will normally limit the number of ADSs and Shares involved in such
Pre-Release at any one time to thirty percent (30%) of the ADSs outstanding (without giving effect
to ADSs outstanding under (i) above), provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate. The Depositary may also
set limits with respect to the number of ADSs and Shares involved in Pre-Release with any one
person on a case-by-case basis as it deems appropriate. The Depositary may retain for its own
account any compensation received by it in conjunction with the foregoing. Collateral provided
pursuant to (b) above, but not the earnings thereon, shall be held for the benefit of the Holders
(other than the Applicant).
Every person depositing Shares under the Deposit Agreement represents and warrants that such
Shares are validly issued and outstanding, fully paid, nonassessable and free of pre-emptive
rights, that the person making such deposit is duly authorized so to do and that such Shares (A)
are not “restricted securities” as such term is defined in Rule 144 under the Securities Act of
1933 (“Restricted Securities”) unless at the time of deposit the requirements of paragraphs (c),
(e), (f) and (h) of Rule 144 shall not apply and such Shares may be freely transferred and may
otherwise be offered and sold freely in the United States or (B) have been registered under the
Securities Act of 1933. To the extent the person depositing Shares is an affiliate of the Company
as such term is defined in Rule 144, the person also represents and
warrants that upon the sale of the ADSs, all of the provisions of Rule 144 which enable the
Shares to be freely sold (in the form of ADSs) will be fully complied with and, as a result
thereof, all of the ADSs issued in respect of such Shares will not be on the sale thereof,
Restricted Securities. Such representations and warranties shall survive the deposit of Shares
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and
issuance of ADRs. The Depositary will not knowingly accept for deposit under the Deposit Agreement
any Shares required to be registered under the Securities Act of 1933 and not so registered. The
Depositary may refuse to accept for such deposit any Shares identified by the Company in order to
facilitate the Company’s compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5), upon
surrender of (i) a certificated ADR in form satisfactory to the Depositary at the Transfer Office
or (ii) proper instructions and documentation in the case of a Direct Registration ADR, the Holder
hereof is entitled to delivery at, or to the extent in dematerialized form from, the Custodian’s
office of the Deposited Securities at the time represented by the ADSs evidenced by this ADR,
provided that the Depositary may deliver Shares prior to the receipt of ADSs for withdrawal of
Deposited Securities, including ADSs which were issued under (1) above but for which Shares may not
have been received (until such ADSs are actually deposited, “Pre-released Shares”) only if all
the conditions in (1) above related to such Pre-Release are satisfied). At the request,
risk and expense of the Holder hereof, the Depositary may deliver such Deposited Securities at such
other place as may have been requested by the Holder. Notwithstanding any other provision of the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be restricted only for
the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such instructions may be
amended from time to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a designated transfer
office (the “Transfer Office”), (a) a register (the “ADR Register”) for the registration,
registration of transfer, combination and split-up of ADRs, and, in the case of Direct Registration
ADRs, shall include the Direct Registration System, which at all reasonable times will be open for
inspection by Holders and the Company for the purpose of communicating with Holders in the interest
of the business of the Company or a matter relating to the Deposit Agreement and (b) facilities for
the delivery and receipt of ADRs. The term ADR Register includes the Direct Registration System.
Title to this ADR (and to the Deposited Securities represented by the ADSs evidenced hereby), when
properly endorsed (in the case of ADRs in certificated form) or upon delivery to the Depositary of
proper instruments of transfer, is transferable by delivery with the same effect as in the case of
negotiable instruments under the laws of the State of New York; provided that the
Depositary, notwithstanding any notice to the contrary, may treat the person in whose name this ADR
is registered on the ADR Register as the absolute owner hereof for all purposes and neither the
Depositary nor the Company will have any obligation or be subject to any liability under the
Deposit Agreement to any holder of an ADR, unless such holder is the Holder thereof. Subject to
paragraphs (4) and (5), this ADR is transferable on the ADR Register and may be split into other
ADRs or combined with other ADRs into one ADR, evidencing the aggregate number of ADSs surrendered
for split-up or combination, by the Holder hereof or by duly authorized attorney upon surrender of
this ADR
at the Transfer Office properly endorsed (in the case of ADRs in certificated form) or upon
delivery to the Depositary of proper instruments of transfer and duly stamped as may be required by
applicable law; provided that the Depositary may close the ADR Register at any time or from time to
time when deemed expedient by it or requested by the Company to the extent required by applicable
law. At the request of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa,
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execute and deliver a certificated
ADR or a Direct Registration ADR, as the case may be, for any authorized number of ADSs requested,
evidencing the same aggregate number of ADSs as those evidenced by the certificated ADR or Direct
Registration ADR, as the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of transfer,
split-up or combination of any ADR, the delivery of any distribution in respect thereof, or,
subject to the last sentence of paragraph (2), the withdrawal of any Deposited Securities, and from
time to time in the case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or
the Custodian may require: (a) payment with respect thereto of (i) any stock transfer or other tax
or other governmental charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers of Shares or other Deposited Securities upon any applicable register and
(iii) any applicable charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity of any signatory and genuineness of any signature and (ii)
such other information, including without limitation, information as to citizenship, residence,
exchange control approval, beneficial ownership of any securities, compliance with applicable law,
regulations, provisions of or governing Deposited Securities and terms of the Deposit Agreement and
this ADR, as it may deem necessary or proper; and (c) compliance with such regulations as the
Depositary may establish consistent with the Deposit Agreement. The issuance of ADRs, the
acceptance of deposits of Shares, the registration, registration of transfer, split-up or
combination of ADRs or, subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the ADR Register or any
register for Deposited Securities is closed or when any such action is deemed advisable by the
Depositary.
(5) Taxes. If any tax or other governmental charge shall become payable by or on behalf of
the Custodian or the Depositary with respect to this ADR, any Deposited Securities represented by
the ADSs evidenced hereby or any distribution thereon, such tax or other governmental charge shall
be paid by the Holder hereof to the Depositary. The Depositary may refuse to effect any
registration, registration of transfer, split-up or combination hereof or, subject to the last
sentence of paragraph (2), any withdrawal of such Deposited Securities until such payment is made.
The Depositary may also deduct from any distributions on or in respect of Deposited Securities, or
may sell by public or private sale for the account of the Holder hereof any part or all of such
Deposited Securities (after attempting by reasonable means to notify the Holder hereof prior to
such sale), and may apply such deduction or the proceeds of any such sale in payment of such tax or
other governmental charge, the Holder hereof remaining liable for any deficiency, and shall reduce
the number of ADSs evidenced hereby to reflect any such sales of Shares. In connection with any
distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all amounts (if any)
required to be withheld and owing to such authority or agency by the Company; and the Depositary
and the Custodian will remit to the appropriate governmental authority or agency all amounts (if
any) required to be withheld and owing to such authority or agency by the Depositary or the
Custodian. The Depositary will, to the extent it has such information, furnish to the Company such
information from its records as the Company may reasonably request to enable the Company to file
any necessary reports with governmental authorities
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agencies. If the Depositary determines that
any distribution in property other than cash (including Shares or rights) on Deposited Securities
is subject to any tax that the Depositary or the Custodian is obligated to withhold, the Depositary
may dispose of all or a portion of such property in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes, by public or private sale, and the
Depositary shall distribute the net proceeds of any such sale or the balance of any such property
after deduction of such taxes to the Holders entitled thereto. Each Holder of an ADR or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and any of their respective
directors, employees, agents and affiliates against, and hold each of them harmless from, any
claims by any governmental authority with respect to taxes, additions to tax, penalties or interest
arising out of any refund of taxes, reduced rate of withholding at source or other tax benefit
obtained.
(6) Disclosure of Interests. To the extent that the provisions of or governing any
Deposited Securities may require disclosure of or impose limits on beneficial or other ownership of
Deposited Securities, other Shares and other securities and may provide for blocking transfer,
voting or other rights to enforce such disclosure or limits, Holders and all persons holding ADRs
agree to comply with all such disclosure requirements and ownership limitations and to comply with
any reasonable Company instructions in respect thereof. The Depositary shall forward to the
Holders, upon the request of the Company, any written request for beneficial ownership information
from the Company to the Holders and shall promptly forward to the Company any responses thereto
received by the Depositary. The Company reserves the right to instruct Holders to deliver their
ADSs for cancellation and withdrawal of the Deposited Securities so as to permit the Company to
deal directly with the Holder thereof as a holder of Shares and Holders agree to comply with such
instructions. The Depositary agrees to cooperate with the Company in its efforts to inform
Holders of the Company’s exercise of its rights under this paragraph and agrees to consult with,
and provide reasonable assistance without risk, liability or expense on the part of the Depositary,
to the Company on the manner or manners in which it may enforce such rights with respect to any
Holder.
(7) Charges of Depositary. The Depositary may charge and collect from, (i) each person to
whom ADSs are issued, including, without limitation, issuances against deposits of Shares,
issuances in respect of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), issuances pursuant to a stock dividend or stock split declared by the
Company, or issuances pursuant to a merger, exchange of securities or any other transaction or
event affecting the ADSs or the Deposited Securities, and (ii) each person surrendering ADSs for
withdrawal of Deposited Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each 100 ADSs (or portion thereof) issued,
delivered, reduced, cancelled or surrendered (as the case may be). The Depositary may sell (by
public or private sale) sufficient securities and property received in respect of Share
Distributions, Rights and Other Distributions prior to such deposit to pay such charge. The
following additional charges shall be incurred by the Holders, by any party depositing or
withdrawing Shares or by any party surrendering ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a distribution of ADSs pursuant
to paragraph (10)), whichever is applicable (i) a fee of U.S.$0.05
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or less per ADS for any Cash
distribution made pursuant to the Deposit Agreement, (ii) a fee of U.S.$1.50 per ADR or ADRs for
transfers made pursuant to paragraph (3) hereof, (iii) a fee for the distribution or sale of
securities pursuant to paragraph (10) hereof, such fee being in an amount equal to the fee for the
execution and delivery of ADSs referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this paragraph (7) treating all such securities as if
they were Shares) but which securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Holders entitled thereto, (iv) an aggregate fee of up to U.S.$0.05
per ADS per calendar year (or portion thereof) for services performed by the Depositary in
administering the ADRs (which fee may be charged on a periodic basis during each calendar year and
shall be assessed against Holders as of the record date or record dates set by the Depositary
during each calendar year and shall be payable at the sole discretion of the Depositary by billing
such Holders or by deducting such charge from one or more cash dividends or other cash
distributions), and (v) such fees, charges and expenses as are incurred by the Depositary and/or
any of the Depositary’s agents (including, without limitation, the Custodian, and expenses incurred
on behalf of Holders in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited Securities or otherwise
in connection with the Depositary’s or its Custodian’s compliance with applicable law, rule or
regulation (which charge shall be assessed on a proportionate basis against Holders as of the
record date or dates set by the Depositary). The Company will pay all other charges and expenses of
the Depositary and any agent of the Depositary (except the Custodian) pursuant to agreements from
time to time between the Company and the Depositary, except (i) stock transfer or other taxes and
other governmental charges (which are payable by Holders or persons depositing Shares), (ii) cable,
telex and facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, ADRs or Deposited Securities (which are payable by such
persons or Holders), (iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any applicable register in connection with the deposit or withdrawal of
Deposited Securities (which are payable by persons depositing Shares or Holders withdrawing
Deposited Securities; there are no such fees in respect of the Shares as of the date of the Deposit
Agreement), (iv) expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency), and (v) any other charge payable
by any of the Depositary, any of the Depositary’s agents, including, without limitation, the
Custodian, or the agents of the Depositary’s agents in connection with the servicing of the Shares
or other Deposited Securities (which charge shall be assessed against Holders as of the record date
or dates set by the Depositary and shall be payable at the sole discretion of the Depositary by
billing such Holders or by deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed by agreement between
the Company and the Depositary.
(8) Available Information. The Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both received by the
Custodian or its nominee as a holder of Deposited Securities and made generally available to the
holders of Deposited Securities, are available for inspection by Holders at the offices of the
Depositary and the Custodian and at the Transfer Office. The Depositary will distribute copies of
such communications (or English translations or summaries thereof) to Holders when furnished by the
Company. The Company is subject to the periodic reporting requirements of the Securities Exchange
Act of 1934 and accordingly furnishes and files certain reports with the United States Securities
and Exchange Commission (the “Commission”). To the extent furnished to, or filed with, the
Commission, such reports,
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documents and other information may be inspected and copied at public
reference facilities maintained by the Commission located at the date hereof at 000 X Xxxxxx, XX,
Xxxxxxxxxx, XX 00000.
(9) Execution. This ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the Depositary.
Dated:
| JPMORGAN CHASE BANK, N.A., as Depositary |
||||
| By: | ||||
| Authorized Officer | ||||
The Depositary’s office is located at One Chase Xxxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute to each Holder entitled thereto on the record date set
by the Depositary therefor at such Holder’s address shown on the ADR Register, in proportion to the
number of Deposited Securities (on which the following distributions on Deposited Securities are
received by the Custodian) represented by ADSs evidenced by such Holder’s ADRs: (a) Cash. Any
U.S. dollars available to the Depositary resulting from a cash dividend or other cash distribution
or the net proceeds of sales of any other distribution or portion thereof authorized in this
paragraph (10) (“Cash”), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or impracticable with
respect to certain Holders, and (iii) deduction of the Depositary’s expenses in (1) converting any
foreign currency to U.S. dollars by sale or in such other manner as the Depositary may determine to
the extent that it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means as the Depositary
may determine to the extent that it determines that such transfer may be made on a reasonable
basis, (3) obtaining any approval or license of any governmental authority required for such
conversion or transfer, which is obtainable at a reasonable cost and within a reasonable time and
(4) making any sale by public or private means in any commercially reasonable manner. (b) Shares.
(i) Additional ADRs evidencing whole ADSs representing any Shares available to the Depositary
resulting from a dividend or free distribution on Deposited Securities consisting of Shares (a
“Share Distribution”) and (ii) U.S. dollars available to it resulting from the net proceeds of
sales of Shares received in a Share Distribution, which Shares would give rise to fractional ADSs
if additional ADRs were issued therefor, as in the case of Cash. (c) Rights. (i) Warrants or other
instruments in the discretion of the Depositary representing rights to acquire additional ADRs in
respect of any rights to subscribe for additional Shares or rights of any nature available to the
Depositary as a result of a distribution on Deposited Securities (“Rights”), to the extent that the
Company timely furnishes to the Depositary evidence satisfactory to the Depositary that the
Depositary may lawfully distribute the same (the Company has no obligation to so furnish such
evidence), or (ii) to the extent the Company does not so furnish such evidence and sales of Rights
are practicable, any U.S. dollars available to the Depositary from the net proceeds of sales of
Rights as in the case of Cash, or (iii) to the extent the Company does not so furnish such evidence
and such sales cannot practicably be accomplished by reason of the nontransferability of the
Rights, limited markets therefor, their short duration or otherwise, nothing (and any Rights may
lapse). (d) Other Distributions. (i) Securities or property available to the Depositary resulting
from any distribution on Deposited Securities other than Cash, Share Distributions and Rights
(“Other Distributions”), by any means that the Depositary may deem equitable and practicable, or
(ii) to the extent the Depositary deems distribution of such securities or property not to be
equitable and practicable, any U.S. dollars available to the Depositary from the net proceeds of
sales of Other Distributions as in the case of Cash. Such U.S. dollars available will be
distributed by checks drawn on a bank in the United States for whole dollars and cents. Fractional
cents will be withheld without liability and dealt with by the Depositary in accordance with its
then current practices.
(11) Record Dates. The Depositary may, after consultation with the Company if
practicable, fix a record date (which, to the extent applicable, shall be as near as practicable to
any corresponding record date set by the Company) for the determination of the Holders who shall be
responsible for the fee assessed by the Depositary for administration of the ADR program and for
any expenses provided for in paragraph (7) hereof as well as for the
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determination of the Holders who shall be entitled to receive any distribution on or in
respect of Deposited Securities, to give instructions for the exercise of any voting rights, to
receive any notice or to act in respect of other matters and only such Holders shall be so entitled
or obligated.
(12) Voting of Deposited Securities. As soon as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders of Shares or other
Deposited Securities, the Depositary shall distribute to Holders a notice stating (a) such
information as is contained in such notice and any solicitation materials, (b) that each Holder on
the record date set by the Depositary therefor will, subject to any applicable provisions of the
laws of the Cayman Islands, be entitled to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining to the Deposited Securities represented by the ADSs evidenced by such
Holder’s ADRs and (c) the manner in which such instructions may be given, including instructions to
give a discretionary proxy to a person designated by the Company. Upon receipt of instructions of
a Holder on such record date in the manner and on or before the date established by the Depositary
for such purpose, the Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder’s ADRs in accordance with such
instructions. The Depositary will not itself exercise any voting discretion in respect of any
Deposited Securities. There is no guarantee that Holders generally or any Holder in particular
will receive the notice described above with sufficient time to enable such Holder to return any
voting instructions to the Depositary in a timely manner.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and (5), the
Depositary may, in its discretion, amend this ADR or distribute additional or amended ADRs (with or
without calling this ADR for exchange) or cash, securities or property on the record date set by
the Depositary therefor to reflect any change in par value, split-up, consolidation, cancellation
or other reclassification of Deposited Securities, any Share Distribution or Other Distribution not
distributed to Holders or any cash, securities or property available to the Depositary in respect
of Deposited Securities from (and the Depositary is hereby authorized to surrender any Deposited
Securities to any person and, irrespective of whether such Deposited Securities are surrendered or
otherwise cancelled by operation of law, rule, regulation or otherwise, to sell by public or
private sale any property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all or substantially all
the assets of the Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds thereof, whatever
cash, securities or property results from any of the foregoing shall constitute Deposited
Securities and each ADS evidenced by this ADR shall automatically represent its pro rata interest
in the Deposited Securities as then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of them shall:
(a) incur no liability (i) if any present or future law, rule, regulation , fiat, order or decree
of the United States, the Cayman Islands, the People’s Republic of China (including the Hong Kong
Special Administrative Region, the “People’s Republic of China”) or any other country, or of any
governmental or regulatory authority or any securities exchange or market or automated quotation
system, the provisions of or governing any Deposited Securities, any present or future provision of
the Company’s charter, any act of God, war, terrorism or other circumstance beyond its control
shall prevent, delay or subject to any civil or criminal penalty any act which the Deposit
Agreement or this ADR provides shall be done or performed by it or them (including, without
limitation, voting pursuant to paragraph (12) hereof), or (ii) by
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reason of any exercise or failure to exercise any discretion given it in the Deposit Agreement
or this ADR; (b) assume no liability except to perform its obligations to the extent they are
specifically set forth in this ADR and the Deposit Agreement without gross negligence or bad faith;
(c) in the case of the Depositary and its agents, be under no obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited Securities or this ADR; (d)
in the case of the Company and its agents hereunder be under no obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited Securities or this ADR,
which in its opinion may involve it in expense or liability, unless indemnity satisfactory to it
against all expense (including fees and disbursements of counsel) and liability be furnished as
often as may be required; or (e) not be liable for any action or inaction by it in reliance upon
the advice of or information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give such advice or
information. The Depositary shall not be liable for the acts or omissions made by any securities
depository, clearing agency or settlement system in connection with or arising out of book-entry
settlement of Deposited Securities or otherwise. The Depositary shall not be responsible for, and
shall incur no liability in connection with or arising from, the insolvency of any Custodian that
is not a branch or affiliate of JPMorgan Chase Bank, N.A. The Depositary, its agents and the
Company may rely and shall be protected in acting upon any written notice, request, direction or
other document believed by them to be genuine and to have been signed or presented by the proper
party or parties. The Depositary and its agents will not be responsible for any failure to carry
out any instructions to vote any of the Deposited Securities, for the manner in which any such vote
is cast or for the effect of any such vote. The Depositary and its agents may own and deal in any
class of securities of the Company and its affiliates and in ADRs. Notwithstanding anything to the
contrary set forth in the Deposit Agreement or an ADR, the Depositary and its agents may fully
respond to any and all demands or requests for information maintained by or on its behalf in
connection with the Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise related
hereto to the extent such information is requested or required by or pursuant to any lawful
authority, including without limitation laws, rules, regulations, administrative or judicial
process, banking, securities or other regulators. None of the Depositary, the Custodian or the
Company shall be liable for the failure by any Holder or beneficial owner to obtain the benefits of
credits on the basis of non-U.S. tax paid against such Holder’s or beneficial owner’s income tax
liability. The Depositary and the Company shall not incur any liability for any tax consequences
that may be incurred by Holders and beneficial owners on account of their ownership of the ADRs or
ADSs. The Company has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company under certain circumstances.
Neither the Company, the Depositary nor any of their respective agents shall be liable to Holders
or beneficial owners of interests in ADSs for any indirect, special, punitive or consequential
damages (including, without limitation, lost profits) of any form incurred by any person or entity,
whether or not foreseeable and regardless of the type of action in which such a claim may be
brought. No disclaimer of liability under the Securities Act of 1933 is intended by any provision
hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary may resign as
Depositary by written notice of its election so to do delivered to the Company, such resignation to
take effect upon the appointment of a successor depositary and its acceptance of such appointment
as provided in the Deposit Agreement. The Depositary may at any time be removed by the Company by
no less than 90 days prior written notice of such removal, to become effective upon the later of
(i) the 90th day after delivery of the notice to the Depositary and (ii) the appointment of a
successor depositary and its acceptance of such
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appointment as provided in the Deposit Agreement. The Depositary may appoint substitute or
additional Custodians and the term “Custodian” refers to each Custodian or all Custodians as the
context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and the
Deposit Agreement may be amended by the Company and the Depositary, provided that any amendment
that imposes or increases any fees or charges (other than stock transfer or other taxes and other
governmental charges, transfer or registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or that shall otherwise prejudice any substantial existing
right of Holders, shall become effective 30 days after notice of such amendment shall have been
given to the Holders. Every Holder of an ADR at the time any amendment to the Deposit Agreement so
becomes effective shall be deemed, by continuing to hold such ADR, 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 Holder of any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory provisions of applicable
law. Any amendments or supplements which (i) are reasonably necessary (as agreed by the Company and
the Depositary) in order for (a) the ADSs to be registered on Form F-6 under the Securities Act of
1933 or (b) the ADSs or Shares to be traded solely in electronic book-entry form and (ii) do not in
either such case impose or increase any fees or charges to be borne by Holders, shall be deemed not
to prejudice any substantial rights of Holders. Notwithstanding the foregoing, if any
governmental body or regulatory body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit Agreement and the ADR
at any time in accordance with such changed laws, rules or regulations. Such amendment or
supplement to the Deposit Agreement in such circumstances may become effective before a notice of
such amendment or supplement is given to Holders or within any other period of time as required for
compliance. Notice of any amendment to the Deposit Agreement or form of ADRs shall not need to
describe in detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid, provided, however,
that, in each such case, the notice given to the Holders identifies a means for Holders to retrieve
or receive the text of such amendment (i.e., upon retrieval from the Securities and Exchange
Commission’s, the Depositary’s or the Company’s website or upon request from the Depositary).
(17) Termination. The Depositary may, and shall at the written direction of the Company,
terminate the Deposit Agreement and this ADR by mailing notice of such termination to the Holders
at least 30 days prior to the date fixed in such notice for such termination; provided, however, if
the Depositary shall have (i) resigned as Depositary hereunder, notice of such termination by the
Depositary shall not be provided to Holders unless a successor depositary shall not be operating
hereunder within 45 days of the date of such resignation, and (ii) been removed as Depositary
hereunder, notice of such termination by the Depositary shall not be provided to Holders unless a
successor depositary shall not be operating hereunder on the 90th day after the
Company’s notice of removal was first provided to the Depositary. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under the Deposit Agreement
and this ADR, except to receive and hold (or sell) distributions on Deposited Securities and
deliver Deposited Securities being withdrawn. As soon as practicable after the expiration of six
months from the date so fixed for termination, the Depositary shall sell the Deposited Securities
and shall thereafter (as long as it may lawfully do so) hold in a segregated account the net
proceeds of such sales, together with any other cash then held by
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it under the Deposit Agreement, without liability for interest, in trust for the pro rata
benefit of the Holders of ADRs not theretofore surrendered. After making such sale, the Depositary
shall be discharged from all obligations in respect of the Deposit Agreement and this ADR, except
to account for such net proceeds and other cash. After the date so fixed for termination, the
Company shall be discharged from all obligations under the Deposit Agreement except for its
obligations to the Depositary and its agents.
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(18) Appointment. Each Holder and each person holding an interest in ADSs, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and conditions of the
Deposit Agreement shall be deemed for all purposes to (a) be a party to and bound by the terms of
the Deposit Agreement and the applicable ADR(s), and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take any and all actions
contemplated in the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the Depositary in its sole
discretion may deem necessary or appropriate to carry out the purposes of the Deposit Agreement and
the applicable ADR(s), the taking of such actions to be the conclusive determinant of the necessity
and appropriateness thereof.
(19) Waiver. EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR
AVOIDANCE OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) 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 DEPOSITARY AND/OR THE COMPANY DIRECTLY
OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR
THE ADRs, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER THEORY).
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