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[ ] 2008
DEPOSIT AGREEMENT
by and among
BCD SEMICONDUCTOR MANUFACTURING LIMITED
as Issuer
and
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary
and
THE HOLDERS AND BENEFICIAL OWNERS FROM TIME TO TIME
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY AMERICAN
DEPOSITARY RECEIPTS ISSUED HEREUNDER
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White & Case LLP
5 Old Broad Street
London EC2N 1DW
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS........................................................1
SECTION 1.1 "ADS Record Date"...............................................1
SECTION 1.2 "Affiliate".....................................................1
SECTION 1.3 "American Depositary Receipt(s)", "Receipt(s)" and "ADR(s)".....1
SECTION 1.4 "American Depositary Share(s)" and "ADS(s)".....................2
SECTION 1.5 "Articles of Association".......................................2
SECTION 1.6 "Beneficial Owner"..............................................2
SECTION 1.7 "Business Day"..................................................2
SECTION 1.8 "Commission"....................................................2
SECTION 1.9 "Company".......................................................2
SECTION 1.10 "Custodian".....................................................2
SECTION 1.11 "Deliver" and "Delivery"........................................2
SECTION 1.12 "Deposit Agreement".............................................3
SECTION 1.13 "Depositary"....................................................3
SECTION 1.14 "Deposited Securities"..........................................3
SECTION 1.15 "Dollars", "$" and "U.S. $".....................................3
SECTION 1.16 "DRS/Profile"...................................................3
SECTION 1.17 "DTC"...........................................................3
SECTION 1.18 "Exchange Act"..................................................3
SECTION 1.19 "Foreign Currency"..............................................3
SECTION 1.20 "Foreign Registrar".............................................3
SECTION 1.21 "Holder"........................................................3
SECTION 1.22 "Indemnified Person" and "Indemnifying Person"..................3
SECTION 1.23 "Partial Entitlement Receipts(s)", "Partial Entitlement
ADS(s)" and "Partial Entitlement Share(s)"......................3
SECTION 1.24 "Pre-Release Transaction".......................................3
SECTION 1.25 "Principal Office"..............................................4
SECTION 1.26 "Registrar".....................................................4
SECTION 1.27 "Restricted Securities".........................................4
SECTION 1.28 "Restricted Shares, Restricted ADS(s) and Restricted
Receipt(s)".....................................................4
SECTION 1.29 "Securities Act"................................................4
SECTION 1.30 "Shares"........................................................4
SECTION 1.31 "United States" or "U.S.".......................................4
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF
SHARES; EXECUTION AND DELIVERY, TRANSFER AND
SURRENDER OF RECEIPTS..............................................5
SECTION 2.1 Appointment of Depositary.......................................5
SECTION 2.2 Form and Transferability of Receipts............................5
SECTION 2.3 Deposits........................................................6
SECTION 2.4 Execution and Delivery of Receipts..............................8
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts......8
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited Securities....9
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc.
of Receipts; Suspension of Delivery, Transfer, etc.............10
SECTION 2.8 Lost Receipts, etc.............................................11
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records.........................................11
SECTION 2.10 Pre-Release....................................................11
SECTION 2.11 Partial Entitlement ADSs.......................................12
SECTION 2.12 Restricted ADSs................................................13
SECTION 2.13 Escheatment..............................................14
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS
OF RECEIPTS.......................................................14
SECTION 3.1 Proofs, Certificates and Other Information.....................14
SECTION 3.2 Liability for Taxes and Other Charges..........................15
SECTION 3.3 Representations and Warranties on Deposit of Shares............15
SECTION 3.4 Compliance with Information Requests...........................15
SECTION 3.5 Ownership Restrictions.........................................16
SECTION 3.6 Reporting Obligations and Regulatory Approvals.................16
ARTICLE IV THE DEPOSITED SECURITIES..........................................16
SECTION 4.1 Cash Distributions.............................................16
SECTION 4.2 Distribution in Shares.........................................17
SECTION 4.3 Elective Distributions in Cash or Shares.......................18
SECTION 4.4 Distribution of Rights to Purchase Shares......................18
SECTION 4.5 Distributions Other Than Cash, Shares or Rights
to Purchase Shares.............................................20
SECTION 4.6 Conversion of Foreign Currency.................................21
SECTION 4.7 Fixing of Record Date..........................................21
SECTION 4.8 Voting of Deposited Securities.................................22
SECTION 4.9 Changes Affecting Deposited Securities.........................23
SECTION 4.10 Available Information..........................................24
SECTION 4.11 Reports........................................................24
SECTION 4.12 List of Holders................................................24
SECTION 4.13 Taxation; Withholding..........................................24
SECTION 4.14 Redemption.....................................................25
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY.....................26
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar......26
SECTION 5.2 Exoneration....................................................27
SECTION 5.3 Standard of Care...............................................27
SECTION 5.4 Resignation and Removal of the Depositary; Appointment
of Successor Depositary........................................28
SECTION 5.5 The Custodian..................................................29
SECTION 5.6 Notices and Reports............................................30
SECTION 5.7 Issuance of Additional Shares, ADSs, etc.......................30
SECTION 5.8 Indemnification................................................31
SECTION 5.9 Fees and Charges of Depositary.................................32
SECTION 5.10 Restricted Securities Owners/Ownership Restrictions............34
ARTICLE VI AMENDMENT AND TERMINATION.........................................34
SECTION 6.1 Amendment/Supplement...........................................34
SECTION 6.2 Termination....................................................35
ARTICLE VII MISCELLANEOUS.....................................................36
SECTION 7.1 Counterparts...................................................36
SECTION 7.2 No Third-Party Beneficiaries...................................36
SECTION 7.3 Severability...................................................36
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect.......36
SECTION 7.5 Notices........................................................36
SECTION 7.6 Governing Law and Jurisdiction.................................37
SECTION 7.7 Assignment.....................................................38
SECTION 7.8 Agents.........................................................38
SECTION 7.9 Exclusivity....................................................38
SECTION 7.10 Compliance with U.S. Securities Laws...........................38
SECTION 7.11 Titles and References..........................................38
SECTION 7.12 Cayman Islands Law References..................................39
EXHIBIT A - [FORM OF FACE OF RECEIPT]..........................................1
EXHIBIT B - [FORM OF REVERSE OF RECEIPT].......................................1
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of [ ], 2008 by and among (i) BCD Semiconductor
Manufacturing Limited, an exempted company incorporated under the laws of the
Cayman Islands, and its successors (the "Company"), (ii) Deutsche Bank Trust
Company Americas, an indirect wholly owned subsidiary of Deutsche Bank AG,
acting in its capacity as depositary, and any successor depositary hereunder
(the "Depositary"), and (iii) all Holders and Beneficial Owners from time to
time of American Depositary Shares evidenced by American Depositary Receipts
issued hereunder (all such capitalized terms as hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company desires to establish an ADR facility with the Depositary to
provide inter alia for the deposit of the Shares and the creation of American
Depositary Shares representing the Shares so deposited;
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement;
WHEREAS, the American Depositary Receipts evidencing the American Depositary
Shares issued pursuant to the terms of this Deposit Agreement 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;
WHEREAS, the American Depositary Shares to be issued pursuant to the terms of
this Deposit Agreement are listed on the NASDAQ Global Market ("NASDAQ"); and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
SECTION 1.1 "ADS Record Date" shall have the meaning given to such term in
Section 4.7.
SECTION 1.2 "Affiliate" shall have the meaning assigned to such term by
the Commission under Regulation C promulgated under the Securities Act.
SECTION 1.3 "American Depositary Receipt(s)", "Receipt(s)" and "ADR(s)"
shall mean the certificate(s) or DRS/Profile statements issued by the Depositary
evidencing the American Depositary Shares issued under the terms of this Deposit
A-
Agreement, as such Receipts may be amended from time to time in accordance with
the provisions of this Deposit Agreement. References to Receipts shall include
physical certificated Receipts as well as ADSs issued through DRS/Profile,
unless the context otherwise requires.
SECTION 1.4 "American Depositary Share(s)" and "ADS(s)" shall mean the
securities representing the rights and interests in the Deposited Securities
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and evidenced by the American Depositary
Receipts issued hereunder. Each American Depositary Share shall represent the
right to receive 6 Shares, until there shall occur a distribution upon Deposited
Securities referred to in Section 4.2 or a change in Deposited Securities
referred to in Section 4.9 with respect to which additional American Depositary
Receipts are not executed and delivered, and thereafter each American Depositary
Share shall represent the Shares or Deposited Securities specified in such
Sections.
SECTION 1.5 "Articles of Association" shall mean the memorandum and articles
of association of the Company, as amended from time to time.
SECTION 1.6 "Beneficial Owner" shall mean as to any ADS, any person or entity
having a beneficial interest in any ADSs. A Beneficial Owner need not be
the Holder of the ADR evidencing such ADSs. A Beneficial Owner may exercise any
rights or receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
SECTION 1.7 "Business Day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday which is not (a) a day on which banking institutions in the
Borough of Manhattan, The City of New York are authorized or obligated by law or
executive orders to close and (b) a day on which NASDAQ or any other market(s)
in which ADSs are traded is closed.
SECTION 1.8 "Commission" shall mean the Securities and Exchange Commission of
the United States or any successor governmental agency thereto in the United
States.
SECTION 1.9 "Company" shall mean BCD Semiconductor Manufacturing Limited, an
exempted company incorporated and existing under the laws of the Cayman
Islands, and its successors.
SECTION 1.10 "Custodian" shall mean, as of the date hereof, Deutsche Bank AG,
Hong Kong Branch, having its principal office at 52/F Cheung Kong Center, 2
Queens Road, Central, Hong Kong S.A.R., People's Republic of China., as the
custodian for the purposes of this Deposit Agreement, and any other firm or
corporation which may hereinafter be appointed by the Depositary pursuant to the
terms of Section 5.5 as a successor or an additional custodian or custodians
hereunder, as the context shall require. The term "Custodian" shall mean all
custodians, collectively.
SECTION 1.11 "Deliver" and "Delivery" shall mean, when used in respect of
American Depositary Shares, Receipts, Deposited Securities and Shares, the
physical delivery of the certificate representing such security, or the
electronic delivery of such security by means of book-entry transfer, as
appropriate, including, without limitation, through DRS/Profile. With respect to
DRS/Profile ADRs, the terms "execute", "issue", "register", "surrender",
"transfer" or "cancel" refer to applicable entries or movements to or within
DRS/Profile.
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SECTION 1.12 "Deposit Agreement" shall mean this Deposit Agreement and all
exhibits hereto, as the same may from time to time be amended and supplemented
in accordance with the terms hereof.
SECTION 1.13 "Depositary" shall mean Deutsche Bank Trust Company Americas, an
indirect wholly owned subsidiary of Deutsche Bank AG, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
SECTION 1.14 "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 or deemed to be
received by the Depositary or the Custodian in respect thereof and held
hereunder, subject, in the case of cash, to the provisions of Section 4.6. The
collateral delivered in connection with Pre-Release Transactions described in
Section 2.10 shall not constitute Deposited Securities.
SECTION 1.15 "Dollars", "$" and "U.S.$" shall refer to the lawful currency of
the United States.
SECTION 1.16 "DRS/Profile" means the system for the uncertificated r
registration of ownership of securities pursuant to which ownership of ADSs is
maintained on the books of the Depositary without the issuance of a physical
certificate and transfer instructions may be given to allow for the automated
transfer of ownership between the books of DTC and the Depositary. Ownership of
ADSs held in DRS/Profile are evidenced by periodic statements issued by the
Depositary to the Holders entitled thereto.
SECTION 1.17 "DTC" shall mean The Depository Trust and Clearing Corporation,
the central book-entry clearinghouse and settlement system for
securities traded in the United States, and any successor thereto.
SECTION 1.18 "Exchange Act" shall mean the United States Securities Exchange
Act of 1934, as from time to time amended.
SECTION 1.19 "Foreign Currency" shall mean any currency other than Dollars.
SECTION 1.20 "Foreign Registrar" shall mean the entity, if any, that carries
out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.21 "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. A Holder may or may not be a Beneficial Owner. A Holder shall
be deemed to have all requisite authority to act on behalf of those Beneficial
Owners of the ADRs registered in such Holder's name.
SECTION 1.22 "Indemnified Person" and "Indemnifying Person" shall have the
meaning set forth in Section 5.8.
SECTION 1.23 "Partial Entitlement Receipts(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" shall have the meaning set forth in
Section 2.11
SECTION 1.24 "Pre-Release Transaction" shall have the meaning set forth in
Section 2.10.
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SECTION 1.25 "Principal Office" when used with respect to the Depositary,
shall mean the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at 60 Wall Street, New York, New York
10005, U.S.A.
SECTION 1.26 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register ownership of Receipts and
transfer of Receipts as herein provided, shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary.
SECTION 1.27 "Restricted Securities" shall mean Shares, or American Depositary
Shares representing such Shares, which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons performing
similar functions) or other Affiliate of the Company, or (iii) are subject to
other restrictions on sale or deposit under the laws of the United States, the
Cayman Islands, or under a shareholders' agreement or the Articles of
Association or under the regulations of an applicable securities exchange
unless, in each case, such Shares are being sold to persons other than an
Affiliate of the Company in a transaction (x) covered by an effective resale
registration statement or (y) exempt from the registration requirements of the
Securities Act (as hereinafter defined), and the Shares are not, when held by
such person, Restricted Securities.
SECTION 1.28 "Restricted Shares, Restricted ADS(s) and Restricted Receipt(s)"
shall have the respective meanings set forth in Section 2.12.
SECTION 1.29 "Securities Act" shall mean the United States Securities Act of
1933, as from time to time amended.
SECTION 1.30 "Shares" shall mean ordinary shares in registered form of the
Company, par value U.S.$0.001 each, heretofore validly issued and outstanding
and fully paid or hereafter validly issued and outstanding and fully paid.
References to Shares shall include evidence of rights to receive Shares, whether
or not stated in the particular instance; provided, however, that in no event
shall Shares include evidence of rights to receive Shares with respect to which
the full purchase price has not been paid or Shares as to which pre-emptive
rights have theretofore not been validly waived or exercised; provided further,
however, that, if there shall occur any change in par value, split-up,
consolidation, exchange, reclassification, conversion or any other event
described in Section 4.9, in respect of the Shares of the Company, the term
"Shares" shall thereafter, to the extent permitted by law, represent the
successor securities resulting from such change in par value, split-up,
consolidation, exchange, conversion, reclassification or event.
SECTION 1.31 "United States" or "U.S." shall have the meaning assigned to it
in Regulation S as promulgated by the Commission under the Securities Act.
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ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
SECTION 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as exclusive depositary for the Deposited Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms and
conditions set forth in this Deposit Agreement and the applicable Receipt. Each
Holder and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms and conditions of this Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by
the terms of this Deposit Agreement and the applicable Receipt 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 this Deposit Agreement
and the applicable Receipt, 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 this
Deposit Agreement and the applicable Receipt (the taking of such actions to be
the conclusive determinant of the necessity and appropriateness thereof).
SECTION 2.2 Form and Transferability of Receipts.
(a) 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. Receipts may be
issued in denominations of any number of American Depositary Shares. No
definitive Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose, unless such Receipt
shall have been executed by the Depositary by the manual or facsimile
signature of a duly authorized signatory of the Depositary. The Depositary
shall maintain books on which each Receipt so executed and delivered, in
the case of definitive Receipts, and each Receipt issued through the
DRS/Profile, in either case as hereinafter provided and the transfer of
each such Receipt shall be registered. Receipts in certificated form
bearing the manual or facsimile signature of a duly authorized signatory of
the Depositary who was at any time a proper signatory of the Depositary
shall bind the Depositary, notwithstanding that such signatory has ceased
to hold such office prior to the execution and delivery of such Receipts by
the Registrar or did not hold such office on the date of issuance of such
Receipts.
In addition to the foregoing, 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
reasonably required by the Depositary and the Company in order to comply
with any applicable law or regulations thereunder or with the rules and
regulations of any securities exchange upon which American Depositary
Shares may be listed or to conform with any usage with respect thereto, or
to indicate any special limitations or restrictions to which any particular
Receipts are subject by reason of the date of issuance of the underlying
Deposited Securities or otherwise.
Notwithstanding anything in this Deposit Agreement or in the Receipt to the
contrary, to the extent available by the Depositary, American Depositary
Shares shall be evidenced by Receipts issued through DRS/Profile unless
certificated Receipts are specifically requested by the Holder. Holders and
Beneficial Owners shall be bound
5
by the terms and conditions of this Deposit Agreement and of the form of
Receipt, regardless of whether their Receipts are certificated or issued
through DRS/Profile.
(b) Subject to the limitations contained herein and in the form of Receipt,
title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed (in the case of certificated Receipts) or
upon delivery to the Depositary of proper instruments of transfer, shall be
transferable by delivery with the same effect as in the case of a
negotiable instrument under the laws of the State of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary,
may treat the Holder thereof as the absolute owner thereof for the purpose
of determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement and
for all other purposes and neither the Depositary nor the Company will have
any obligation or be subject to any liability under the Deposit Agreement
to any holder of a Receipt, unless such holder is the Holder thereof.
SECTION 2.3 Deposits.
(a) Subject to the terms and conditions of this Deposit Agreement and
applicable law, Shares or evidence of rights to receive Shares (other than
Restricted Securities) from the Company, the Company's registrar or any
other entity recording share ownership for the Company, may be deposited by
any person (including the Depositary in its individual capacity but
subject, however, in the case of the Company or any Affiliate of the
Company, to Section 5.7) at any time, whether or not the transfer books of
the Company or the Foreign Registrar, if any, are closed, by Delivery of
the Shares to the Custodian. Every deposit of Shares shall be accompanied
by the following: (A)(i) in the case of Shares issued in registered form,
appropriate instruments of transfer or endorsement, in a form satisfactory
to the Custodian, and (ii) in the case of Shares delivered by book-entry
transfer, confirmation of such book-entry transfer to the Custodian or that
irrevocable instructions have been given to cause such Shares to be so
transferred, (B) such certifications and payments (including, without
limitation, the Depositary's fees and related charges) and evidence of such
payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the
Custodian in accordance with the provisions of this Deposit Agreement, (C)
if the Depositary so requires, a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person or persons
stated in such order a Receipt or Receipts for the number of American
Depositary Shares representing the Shares so deposited, (D) evidence
reasonably satisfactory to the Depositary (which may include an opinion of
counsel reasonably satisfactory to the Depositary provided at the cost of
the person seeking to deposit Shares) that all conditions to such deposit
have been met and all necessary approvals have been granted by, and there
has been compliance with the rules and regulations of, any applicable
governmental agency in the Cayman Islands, and (E) if the Depositary so
requires, (i) an agreement, assignment or instrument reasonably
satisfactory to the Depositary or the Custodian which provides for the
prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such
deposited Shares or, in lieu thereof, such indemnity or other agreement as
shall be reasonably satisfactory to the Depositary or the Custodian and
(ii) if the Shares are registered in the name of the person on whose behalf
they are
6
presented for deposit, a proxy or proxies entitling the Custodian to
exercise voting rights in respect of the Shares for any and all purposes
until the Shares so deposited are registered in the name of the Depositary,
the Custodian or any nominee. Without limiting any other provision of the
Deposit Agreement, the Depositary shall instruct the Custodian not to, and
the Depositary shall not knowingly accept for deposit (a) any Restricted
Securities (except as contemplated by Section 2.12) nor (b) any fractional
ADSs. No Share shall be accepted for deposit unless accompanied by
evidence, if any is required by the Depositary, that is reasonably
satisfactory to the Depositary or the Custodian that all conditions to such
deposit have been satisfied by the person depositing such Shares under the
laws and regulations of the Cayman Islands and any necessary approval has
been granted by any applicable governmental body in the Cayman Islands, if
any. Persons depositing Shares, other than the Company in connection with
(i) the initial deposit of Shares in connection with the initial public
offering by the Company as registered with the Commission on Registration
Statement on Form F-1 under the Securities Act (Registration No:[_____])
and (ii) the deposit of Shares constituting a free distribution of Shares
by way of dividend or stock split, may be required by the Depositary to
present appropriate evidence (including, if requested, opinions of
counsel), at such persons' expense, satisfactory to the Depositary and the
Company that such Shares and the issuance of ADSs issuable upon such
deposit are not Restricted Securities. In addition, the Depositary and the
Custodian shall refuse to accept Shares for deposit (i) whenever notified
that the Company has restricted transfer of such Shares to comply with
delivery or transfer requirements and/or ownership restrictions referred to
in this Deposit Agreement or under applicable law and (ii) in the case of a
deposit of Shares requested under this Section 2.3, if such deposit is not
permitted under any restriction notified by the Company to the Depositary
from time to time. Without limitation of the foregoing, the Depositary
shall not knowingly accept for deposit under this Deposit Agreement (A) any
Shares or other securities required to be registered under the provisions
of the Securities Act, unless (i) a registration statement is in effect as
to such Shares or other securities or (ii) the deposit is made upon terms
contemplated in Section 2.12, or (B) any Shares or other securities the
deposit of which the Depositary would knowingly violate any provisions of
the Articles of Association. The Depositary will use commercially
reasonable efforts to comply with reasonable written instructions of the
Company that the Depositary shall not accept for deposit hereunder any
Shares specifically identified in such instructions at such times and under
such circumstances as may reasonably be specified in such instructions in
order to facilitate the Company's compliance with the securities laws in
the United States.
(b) As soon as practicable after receipt of any permitted deposit hereunder and
compliance with the provisions of this Deposit Agreement, the Custodian
shall present the Shares so deposited, together with the appropriate
instrument or instruments of transfer or endorsement, duly stamped, to the
Foreign Registrar for transfer and registration of the Shares (as soon as
transfer and registration can be accomplished and at the expense of the
person for whom the deposit is made) in the name of the Depositary, the
Custodian or a nominee of either. Deposited Securities shall be held by the
Depositary or by a Custodian for the account and to the order of the
Depositary or a nominee, in each case for the account of the Holders and
Beneficial Owners, at such place or places as the Depositary or the
Custodian shall determine.
7
(c) In the event any Shares are deposited which entitle the holders
thereof to receive a per-share distribution or other entitlement in an
amount different from the Shares then on deposit, the Depositary is
authorized to take any and all actions as may be necessary (including,
without limitation, making the necessary notations on Receipts) to give
effect to the issuance of such ADSs and to ensure that such ADSs are not
fungible with other ADSs issued hereunder until such time as the
entitlement of the Shares represented by such non-fungible ADSs equals that
of the Shares represented by ADSs prior to the original such deposit. The
Company agrees to give timely written notice to the Depositary if any
Shares issued or to be issued contain rights different from those of any
other Shares theretofore issued and shall assist the Depositary with the
establishment of procedures enabling the identification of such
non-fungible Shares upon Delivery to the Custodian.
SECTION 2.4 Execution and Delivery of Receipts. After the deposit of any
Shares pursuant to Section 2.2, the Custodian shall notify the Depositary of
such deposit and the person or persons to whom or upon whose written order a
Receipt or Receipts are deliverable in respect thereof and the number of
American Depositary Shares to be evidenced thereby. Such notification shall be
made by letter, first class airmail postage prepaid, or, at the request, risk
and expense of the person making the deposit, by cable, telex, SWIFT, facsimile
or electronic transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement and applicable law (including,
without limitation, the payment of the fees, expenses, taxes and other charges
owing hereunder), shall issue the ADSs representing the Shares so deposited to
or upon the order of the person or persons named in the notice delivered to the
Depositary and shall execute and deliver a Receipt registered in the name or
names requested by such person or persons evidencing in the aggregate the whole
number of American Depositary Shares to which such person or persons are
entitled. Nothing herein shall prohibit any Pre-Release Transaction upon the
terms set forth in this Deposit Agreement.
SECTION 2.5 Transfer of Receipts; Combination and Split-up of Receipts.
(a) Transfer. The Depositary, or, if a Registrar (other than the Depositary)
for the Receipts shall have been appointed, the Registrar, subject to the
terms and conditions of this Deposit Agreement, shall register transfers of
Receipts on its books, upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed in the case of a certificated
Receipt or accompanied by, or in the case of DRS/Profile Receipts receipt
by the Depositary of, proper instruments of transfer (including signature
guarantees in accordance with standard industry practice) and duly stamped
if required by the laws of the State of New York and of the United States
and any other applicable law. Subject to the terms and conditions of this
Deposit Agreement and the applicable Receipt, including payment of the
applicable fees and charges of the Depositary set forth in Section 5.9 and
Exhibit A hereto, the Depositary shall execute a new Receipt or Receipts
and deliver the same to or upon the order of the person entitled thereto
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the Receipts surrendered.
(b) Combination & Split Up. 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 and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 and Exhibit
8
A hereto, 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.
(c) Co-Transfer Agents. The Depositary may appoint one or more co-transfer
agents for the purpose of effecting transfers, combinations and split-ups
of Receipts at designated transfer offices on behalf of the Depositary and
the Depositary shall notify the Company of any such appointment. In
carrying out its functions, a co-transfer agent may require evidence of
authority and compliance with applicable laws and other requirements by
Holders or persons entitled to such Receipts and will be entitled to
protection and indemnity, in each case to the same extent as the
Depositary. Such co-transfer agents may be removed and substitutes
appointed by the Depositary and the Depositary shall notify the Company of
such removal or substitution. Each co-transfer agent appointed under this
Section 2.5 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement and upon receipt of such notice,
the Depositary shall notify the Company of such appointment.
(d) At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Receipt issued through
DRS/Profile, or vice versa, execute and deliver a certificated Receipt or
DRS/Profile statement, as the case may be, for any authorized number of
American Depositary Shares requested, evidencing the same aggregate number
of American Depositary Shares as those evidenced by the certificated
Receipt or DRS/Profile statement, as the case may be, substituted.
SECTION 2.6 Surrender of Receipts and Withdrawal of Deposited Securities.
Upon surrender, at the Principal Office of the Depositary, of American
Depositary Shares for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of (i) the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Section 5.9 and Exhibit A) and (ii)
all applicable taxes and governmental charges payable in connection with such
surrender and withdrawal, and subject to the terms and conditions of this
Deposit Agreement and the applicable Receipt, the Articles of Association,
Section 7.9 and any other provisions of or governing the Deposited Securities
and other applicable laws, the Holder of such American Depositary Shares shall
be entitled to Delivery, to him or upon his order, of the Deposited Securities
at the time represented by the American Depositary Shares so surrendered.
American Depositary Shares may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such American
Depositary Shares (if held in certificated form) or by book-entry delivery of
such American Depositary Shares to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the Depositary,
be properly endorsed in blank or accompanied by proper instruments of transfer
in blank, and if the Depositary so requires, the Holder thereof shall execute
and deliver to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the Depositary
shall direct the Custodian to Deliver (without unreasonable delay) at the
designated office of the Custodian or through a book entry delivery of the
Shares (in either case, subject to Sections 2.7, 3.1, 3.2, 5.9, and to the other
terms and conditions of this Deposit Agreement and the applicable Receipt, to
the Articles of Association, to the provisions of or governing the Deposited
Securities and to applicable laws, now or hereafter
9
in effect) to or upon the written order of the person or persons designated in
the order delivered to the Depositary as provided above, the Deposited
Securities represented by such American Depositary Shares, together with any
certificate or other proper documents of or relating to title of the Deposited
Securities as may be legally required, as the case may be, to or for the account
of such person.
The Depositary may, in its discretion, refuse to accept for surrender a number
of American Depositary Shares representing a number other than a whole number of
Shares. In the case of surrender of a Receipt evidencing a number of American
Depositary Shares representing other than a whole number of Shares, the
Depositary shall cause ownership of the appropriate whole number of Shares to be
Delivered in accordance with the terms hereof, and shall, at the discretion of
the Depositary, either (i) issue and deliver to the person surrendering such
Receipt a new Receipt evidencing American Depositary Shares representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Shares represented by the Receipt so surrendered in a riskless principal
capacity, in a public sale or if no public market is available, in a private
sale, and remit the proceeds of such sale (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary and (b) taxes withheld) to
the person surrendering the Receipt.
At the request, risk and expense of any Holder so surrendering a Receipt, and
for the account of such Holder, the Depositary shall direct the Custodian to
forward (to the extent permitted by law) any cash or other property (other than
securities) held in respect of, and any certificate or certificates and other
proper documents of or relating to title to, the Deposited Securities
represented by such Receipt to the Depositary for delivery at the Principal
Office of the Depositary, and for further delivery to such Holder. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission. Upon receipt by the
Depositary, the Depositary may make delivery to such person or persons entitled
thereto at the Principal Office of the Depositary of any dividends or cash
distributions with respect to the Deposited Securities represented by such
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.
SECTION 2.7 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the execution and
delivery, registration, registration of transfer, split-up, combination or
surrender of any Receipt, the delivery of any distribution thereon or
withdrawal of any Deposited Securities, the Depositary or the Custodian may
require (i) payment from the depositor of Shares or presenter of the
Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees and
charges of the Depositary as provided in Section 5.9 and Exhibit A, (ii)
the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section
3.1 and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts or American Depositary
Shares or to the withdrawal or delivery of Deposited Securities and (B)
such reasonable regulations as the Depositary may establish consistent with
the provisions of this Deposit Agreement, the applicable Receipt and
applicable law.
10
(b) Additional Limitations. The issuance of ADSs against deposits of Shares
generally or against deposits of particular Shares may be suspended, or the
issuance of ADSs against the deposit of particular Shares may be withheld,
or the registration of transfer of Receipts in particular instances may be
refused, or the registration of transfers of Receipts generally may be
suspended, during any period when the transfer books of the Depositary are
closed or if any such action is deemed necessary or advisable by the
Depositary (whereupon the Depositary shall notify the Company) or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or
any securities exchange on which the ADSs or Shares are listed, or under
any provision of this Deposit Agreement or provisions of, or governing, the
Deposited Securities, or any meeting of shareholders of the Company or for
any other reason, subject, in all cases, to Section 7.10.
(c) Regulatory Restrictions. Notwithstanding any provision of the Deposit
Agreement and of any applicable Receipt to the contrary, Holders are
entitled to surrender outstanding ADSs to withdraw the Deposited Securities
associated herewith at any time subject only to (i) temporary delays caused
by closing the transfer books of the Depositary or the Company or the
deposit of Shares in connection with voting at a shareholders' meeting or
the payment of dividends, (ii) the payment of fees, taxes and similar
charges, (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the ADRs or ADSs or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically
contemplated by Instruction I.A.(l) of the General Instructions to Form F-6
(as such General Instructions may be amended from time to time).
SECTION 2.8 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost or stolen, unless the Depositary has notice that such ADR has
been acquired by a bona fide purchaser, subject to Section 5.9, the Depositary
shall execute and deliver a new Receipt (which, in the discretion of the
Depositary may be issued through DRS/Profile unless specifically requested
otherwise) 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 Holder 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 in form and amount
acceptable to the Depositary and (b)satisfied any other reasonable requirements
imposed by the Depositary.
SECTION 2.9 Cancellation and Destruction of Surrendered Receipts; Maintenance
of Records. All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled in
accordance with its customary practices provided that the Depositary maintains a
record of all destroyed Receipts. Cancelled Receipts shall not be entitled to
any benefits under this Deposit Agreement or be valid or obligatory for any
purpose.
SECTION 2.10 Pre-Release. Subject to the further terms and provisions of this
Section 2.10, 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 pursuant to Section 2.3 (a "Pre-
11
Release Transaction") as provided below and (ii) deliver Shares upon the receipt
and cancellation of ADSs, including ADSs that may have been issued in a
Pre-Release Transaction, but for which Shares may not yet have been received.
The Depositary may receive ADSs in lieu of Shares under (i) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs are to be delivered (1)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Shares that are to be delivered by the Applicant under such
Pre-Release Transaction, (2) agrees to indicate the Depositary as owner of such
Shares in its records and to hold such Shares in trust for the Depositary until
such Shares are delivered to the Depositary or the Custodian, (3)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares, and (4) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs involved in such Pre-Release
Transactions 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 disregard such limit from time to time
as it deems appropriate, including (i) due to a decrease in the aggregate number
of ADSs outstanding that causes existing Pre-Release Transactions to temporarily
exceed the limit stated above or (ii) where otherwise required by market
conditions. The Depositary may also set limits with respect to the number of
ADSs and Shares involved in Pre-Release Transactions 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).
SECTION 2.11 Partial Entitlement ADSs. In the event any Shares are deposited
which (i) entitle the holders thereof to receive a per-share distribution or
other entitlement in an amount different from the Shares then on deposit or (ii)
are not fully fungible (including, without limitation, as to settlement or
trading) with the Shares then on deposit (the Shares then on deposit
collectively, "Full Entitlement Shares" and the Shares with different
entitlement, "Partial Entitlement Shares"), the Depositary shall (i) cause the
Custodian to hold Partial Entitlement Shares separate and distinct from Full
Entitlement Shares, and (ii) subject to the terms of the Deposit Agreement,
issue ADSs representing Partial Entitlement Shares which are separate and
distinct from the ADSs representing Full Entitlement Shares, by means of
separate CUSIP numbering and legending (if necessary) and, if applicable, by
issuing Receipts evidencing such ADSs with applicable notations thereon
("Partial Entitlement ADSs/Receipts" and "Full Entitlement ADSs/Receipts",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement Receipts the
opportunity to exchange such Partial Entitlement Receipts for Full Entitlement
Receipts, (b) cause the Custodian to transfer the Partial Entitlement Shares
into the account of the Full Entitlement Shares, and (c) take such actions as
are necessary to remove the distinctions between (i) the Partial Entitlement
Receipts and ADSs, on the one hand, and (ii) the Full Entitlement Receipts and
ADSs on the other. Holders and Beneficial Owners of Partial Entitlement ADSs
shall only be entitled to the entitlements of Partial Entitlement Shares.
Holders and Beneficial Owners of Full Entitlement ADSs shall be entitled only to
the
12
entitlements of Full Entitlement Shares. All provisions and conditions of
the Deposit Agreement shall apply to Partial Entitlement Receipts and ADSs to
the same extent as Full Entitlement Receipts and ADSs, except as contemplated by
this Section 2.11. The Depositary is authorized to take any and all other
actions as may be necessary (including, without limitation, making the necessary
notations on Receipts) to give effect to the terms of this Section 2.11. The
Company agrees to give timely written notice to the Depositary if any Shares
issued or to be issued are Partial Entitlement Shares and shall assist the
Depositary with the establishment of procedures enabling the identification of
Partial Entitlement Shares upon Delivery to the Custodian.
SECTION 2.12 Restricted ADSs. The Depositary shall, at the request and expense
of the Company, establish procedures enabling the deposit hereunder of Shares
that are Restricted Securities in order to enable the holder of such Shares to
hold its ownership interests in such Restricted Shares in the form of ADSs
issued under the terms hereof (such Shares, "Restricted Shares"). Upon receipt
of a written request from the Company to accept Restricted Shares for deposit
hereunder, the Depositary agrees to establish procedures permitting the deposit
of such Restricted Shares and the issuance of ADSs representing such deposited
Restricted Shares (such ADSs, the "Restricted ADSs," and the Receipts evidencing
such Restricted ADSs, the "Restricted Receipts"). The Company shall assist the
Depositary in the establishment of such procedures and agrees that it shall take
all steps necessary and reasonably satisfactory to the Depositary to ensure that
the establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted Receipts and
the Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted Receipts, which legends shall (i) be in a form reasonably
satisfactory to the Depositary and (ii) contain the specific circumstances under
which the Restricted Receipts and the Restricted ADSs represented thereby may be
transferred or the Restricted Shares withdrawn. The Restricted ADSs issued upon
the deposit of Restricted Shares shall be separately identified on the books of
the Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted Receipts and the Restricted ADSs evidenced
thereby shall be transferable only by the Holder thereof upon delivery to the
Depositary of (i) all documentation otherwise contemplated by the Deposit
Agreement and (ii) an opinion of counsel reasonably satisfactory to the
Depositary setting forth, inter alia, the conditions upon which the Restricted
Receipt presented is, and the Restricted ADSs evidenced thereby are,
transferable by the Holder thereof under applicable securities laws and the
transfer restrictions contained in the legend set forth on the Restricted
Receipt presented for transfer. Except as set forth in this Section 2.12 and
except as required by applicable law, the Restricted Receipts and the Restricted
ADSs evidenced thereby shall be treated as Receipts and ADSs issued and
outstanding under the terms of the Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Restricted ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.12) and (b) the terms of (i) this Section
2.12 or (ii) the applicable Restricted Receipt, the terms and
13
conditions set forth in this Section 2.12 and of the Restricted Receipt shall be
controlling and shall govern the rights and obligations of the parties to the
Deposit Agreement pertaining to the deposited Restricted Shares, the Restricted
ADSs and Restricted Receipts.
If the Restricted Receipts, the Restricted ADSs and the Restricted Shares cease
to be Restricted Securities, the Depositary, upon receipt of (x) an opinion of
counsel reasonably satisfactory to the Depositary setting forth, inter alia,
that the Restricted Receipts, the Restricted ADSs and the Restricted Shares are
not as of such time Restricted Securities, and (y) instructions from the Company
to remove the restrictions applicable to the Restricted Receipts, the Restricted
ADSs and the Restricted Shares, shall (i) eliminate the distinctions and
separations between the applicable Restricted Shares held on deposit under this
Section 2.12 and the other Shares held on deposit under the terms of the Deposit
Agreement that are not Restricted Shares, (ii) treat the newly unrestricted
Receipts and ADSs on the same terms as, and fully fungible with, the other
Receipts and ADSs issued and outstanding under the terms of the Deposit
Agreement that are not Restricted Receipts or Restricted ADSs, (iii) take all
actions necessary to remove any distinctions, limitations and restrictions
previously existing under this Section 2.12 between the applicable Restricted
Receipts and Restricted ADSs, respectively, on the one hand, and the other
Receipts and ADSs that are not Restricted Receipts or Restricted ADSs,
respectively, on the other hand, including, without limitation, by making the
newly-unrestricted ADSs eligible for Pre-Release Transactions and for inclusion
in the applicable book-entry settlement systems.
SECTION 2.13 Escheatment. In the event any unclaimed property relating to the
ADSs, for any reason, is in the possession of Depositary and has not been
claimed by the Holder thereof or cannot be delivered to the Holder thereof
through usual channels, the Depositary shall, upon expiration of any applicable
statutory period relating to abandoned property laws, escheat such unclaimed
property to the relevant authorities in accordance with the laws of each of the
relevant states of the United States.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.1 Proofs, Certificates and Other Information. Any person presenting
Shares for deposit, any Holder and any Beneficial Owner may be required, and
every Holder and Beneficial Owner agrees, from time to time to provide to the
Depositary or the Custodian such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of this Deposit
Agreement and the provisions of, or governing, the Deposited Securities or other
information; to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation as the
Depositary may reasonably deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations hereunder. The Depositary and the Registrar, as applicable, may
withhold the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or distribution of rights or of the
proceeds thereof, or to the extent not limited by the terms of Section 7.10, the
delivery of any Deposited Securities, until such proof or other information is
filed or such certifications are executed, or such representations and
warranties are made, or such other documentation or information provided, in
each case to the Depositary's and the Company's satisfaction. The Depositary
shall from time to time, and in a timely manner, on the written request advise
the Company of
14
the availability of any such proofs, certificates or other information and
shall, at the Company's expense, provide or otherwise make available copies
thereof or originals if necessary to the Company upon written request thereof by
the Company, unless such disclosure is prohibited by law. Each Holder and
Beneficial Owner agrees to provide any information requested by the Company or
the Depositary pursuant to this paragraph. Nothing herein shall obligate the
Depositary to (i) obtain any information for the Company if not provided by the
Holders or Beneficial Owners or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
SECTION 3.2 Liability for Taxes and Other Charges. If any present or future
tax or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any ADR or any Deposited Securities or American
Depositary Shares, such tax or other governmental charge shall be payable by the
Holders and Beneficial Owners to the Depositary and such Holders and Beneficial
Owners shall be deemed liable therefor. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or charges, with the Holder and the Beneficial Owner remaining fully
liable for any deficiency. In addition to any other remedies available to it,
the Depositary and the Custodian may refuse the deposit of Shares, and the
Depositary may refuse to issue ADSs, to deliver Receipts, register the transfer,
split-up or combination of Receipts and (subject to Section 7.10) the withdrawal
of Deposited Securities, until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian, and each of their respective agents,
officers, directors, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes or additions to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner. The obligations of Holders and
Beneficial Owners of Receipts under this Section 3.2 shall survive any transfer
of Receipts, any surrender of Receipts and withdrawal of Deposited Securities,
or the termination of this Deposit Agreement.
SECTION 3.3 Representations and Warranties on Deposit of Shares. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim, and are not, and the American Depositary Shares
issuable upon such deposit will not be, Restricted Securities and (v) the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of American Depositary Shares in respect
thereof and the transfer of such American Depositary Shares. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
SECTION 3.4 Compliance with Information Requests. Notwithstanding any other
provision of this Deposit Agreement and the applicable Receipt, the Articles of
Association
15
and applicable law, each Holder and Beneficial Owner agrees to (a) provide such
information as the Company or the Depositary may request pursuant to law
(including, without limitation, relevant Cayman Islands law, any applicable law
of the United States), the Articles of Association, any resolutions of the
Company's Board of Directors adopted pursuant to such Articles of Association,
the requirements of NASDAQ or any other markets or exchanges upon which the
Shares, ADSs or Receipts are listed or traded, or to any requirements of any
electronic book-entry system by which the ADSs or Receipts may be transferred,
and (b) be bound by and subject to applicable provisions of the laws of the
Cayman Islands, the Articles of Association and the requirements of NASDAQ or
any other markets or exchanges upon which the ADSs, Receipts or Shares are
listed or traded, or pursuant to any requirements of any electronic book-entry
system by which the ADSs, Receipts or Shares may be transferred, to the same
extent as if such Holder and Beneficial Owner held Shares directly, in each case
irrespective of whether or not they are Holders or Beneficial Owners at the time
such request is made. The Depositary agrees to use its reasonable efforts to
forward upon the request of the Company, and at the Company's expense, any such
request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
SECTION 3.5 Ownership Restrictions. Notwithstanding any other provision in
the Deposit Agreement or any Receipt, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable law or the Articles of Association. The Company may also
restrict, in such manner as it deems appropriate, transfers of the ADSs where
such transfer may result in the total number of Shares represented by the ADSs
owned by a single Holder or Beneficial Owner to exceed any such limits. The
Company may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including, but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company. Nothing herein shall be
interpreted as obligating the Depositary or the Company to ensure compliance
with ownership restrictions described in this Section 3.5.
SECTION 3.6 Reporting Obligations and Regulatory Approvals. Applicable laws
and regulations may require holders and beneficial owners of Shares, including
the Holders and Beneficial Owners of ADSs, to satisfy reporting requirements and
obtain regulatory approvals in certain circumstances. Holders and Beneficial
Owners of ADSs are solely responsible for complying with such reporting
requirements and obtaining such approvals. Each Holder and each Beneficial Owner
hereby agrees to file such reports and obtain such approvals to the extent and
in the form required by applicable laws and regulations as in effect from time
to time. Neither the Depositary, the Custodian, the Company or any of their
respective agents or affiliates shall be required to take any actions whatsoever
on behalf of Holders or Beneficial Owners to satisfy such reporting requirements
or obtain such regulatory approvals under applicable laws and regulations.
ARTICLE IV
THE DEPOSITED SECURITIES
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SECTION 4.1 Cash Distributions. Whenever the Depositary receives confirmation
from the Custodian of receipt of any cash dividend or other cash distribution on
any Deposited Securities, or receives proceeds from the sale of any Shares,
rights, securities or other entitlements under the terms hereof, the Depositary
will, if at the time of receipt thereof any amounts received in a Foreign
Currency can in the judgment of the Depositary (pursuant to Section 4.6) be
converted on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such cash dividend, distribution or
proceeds into Dollars (on the terms described in Section 4.6) and will
distribute promptly the amount thus received (net of (a) the applicable fees and
charges of, and customary expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of American Depositary Shares held by such Holders respectively as of
the ADS Record Date. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder a fraction of one cent.
Any such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Holders entitled thereto. Holders and Beneficial Owners
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which exceeds three or four decimal places (the number
of decimal places used by the Depositary to report distribution rates). The
excess amount may be retained by the Depositary as an additional cost of
conversion, irrespective of any other fees and expenses payable or owing
hereunder and shall not be subject to escheatment. If the Company, the Custodian
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, duties or other governmental charges, the amount
distributed to Holders on the American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request. 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, such reports necessary to obtain
benefits under the applicable tax treaties for the Holders and Beneficial Owners
of Receipts.
SECTION 4.2 Distribution in Shares. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
any of their nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.7 and shall, subject to Section 5.9, either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of American Depositary Shares held as of the ADS Record Date, additional
American Depositary Shares, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and customary expenses incurred by, the
Depositary and (b) taxes), or (ii) if additional American Depositary Shares are
not so distributed, each American Depositary Share issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interests in the additional Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and customary expenses incurred by, the Depositary and (b) taxes).
In lieu of delivering fractional American Depositary Shares, the Depositary
shall sell the number of Shares represented by the aggregate of such fractions
and distribute the
17
proceeds upon the terms described in Section 4.1. The Depositary may withhold
any such distribution of Receipts if it has not received satisfactory assurances
from the Company (including an opinion of counsel to the Company furnished at
the expense of the Company) that such distribution does not require registration
under the Securities Act or is exempt from registration under the provisions of
the Securities Act. To the extent such distribution may be withheld, the
Depositary may dispose of all or a portion of such distribution in such amounts
and in such manner, including by public or private sale, as the Depositary deems
necessary and practicable, and the Depositary shall distribute the net proceeds
of any such sale (after deduction of applicable (a) taxes and (b) fees and
charges of, and customary expenses incurred by, the Depositary) to Holders
entitled thereto upon the terms described in Section 4.1.
SECTION 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to distribute a dividend payable at the election of the holders of
Shares in cash or in additional Shares, the Company shall give notice thereof to
the Depositary on or before the first date on which the Company gives notice, by
publication or otherwise, of the proposed distribution stating whether or not it
wishes such elective distribution to be made available to Holders of ADSs. Upon
receipt of notice indicating that the Company wishes such elective distribution
to be made available to Holders of Receipts, the Depositary shall consult with
the Company to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make such
elective distribution available to the Holders of ADSs. The Depositary shall
make such elective distribution available to Holders only if (i) the Company
shall have timely requested that the elective distribution is available to
Holders of ADRs, (ii) the Depositary shall have determined that such
distribution is reasonably practicable and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the Holders, on the basis of the same
determination as is made in the local market in respect of the Shares for which
no election is made, either (x) cash upon the terms described in Section 4.1 or
(y) additional ADSs representing such additional Shares upon the terms described
in Section 4.2. If the above conditions are satisfied, the Depositary shall
establish an ADS Record Date (on the terms described in Section 4.7) and
establish procedures to enable Holders to elect the receipt of the proposed
dividend in cash or in additional ADSs. The Company shall assist the Depositary
in establishing such procedures to the extent necessary. Subject to Section 5.9,
if a Holder elects to receive the proposed dividend (x) in cash, the dividend
shall be distributed upon the terms described in Section 4.1, or (y) in ADSs,
the dividend shall be distributed upon the terms described in Section 4.2.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective dividend in Shares (rather than ADSs). There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
SECTION 4.4 Distribution of Rights to Purchase Shares.
Distribution to ADS Holders. Whenever the Company intends to distribute to the
holders of the Deposited Securities rights to subscribe for additional Shares,
the Company shall give notice thereof to the Depositary on or before the first
date on which the Company gives notice, by publication or otherwise, of the
proposed distribution stating whether or not it wishes such rights to be made
available to Holders of ADSs. Upon receipt of a notice indicating that the
Company wishes such rights to be made available to Holders of ADSs, the
18
Depositary shall consult with the Company to determine, and the Company shall
determine, whether it is lawful and reasonably practicable to make such rights
available to the Holders. The Depositary shall make such rights available to
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7, and (iii) the Depositary shall
have determined that such distribution of rights is lawful and reasonably
practicable. In the event any of the conditions set forth above are not
satisfied, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below or, if timing or market conditions may not
permit, do nothing thereby allowing such rights to lapse. In the event all
conditions set forth above are satisfied, the Depositary shall establish an ADS
Record Date (upon the terms described in Section 4.7) and establish procedures
(x) to distribute such rights (by means of warrants or otherwise) and (y) to
enable the Holders to exercise the rights (upon payment of applicable (a) fees
and charges of, and customary expenses incurred by, the Depositary and (b) taxes
and other governmental charges). Nothing herein shall obligate the Depositary to
make available to the Holders a method to exercise such rights to subscribe for
Shares (rather than ADSs).
(a) Sale of Rights. If (i) the Company does not timely request the Depositary
to make the rights available to Holders or requests that the rights not be
made available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 or determines it
is not lawful or reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to
be about to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal
capacity or otherwise, at such place and upon such terms (including public
or private sale) as it may deem proper. The Company shall assist the
Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes) upon the terms
set forth in Section 4.1.
(b) Lapse of Rights. If the Depositary is unable to make any rights available
to Holders upon the terms described in Section 4.4(a) or to arrange for the
sale of the rights upon the terms described in Section 4.4(b), the
Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or
(iii) the content of any materials forwarded to the Holders on behalf of
the Company in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders
and to sell the securities represented by such rights, the Depositary will
not distribute such rights to the Holders (i) unless and until a
registration statement under the Securities Act covering such offering is
in effect or (ii) unless the Company furnishes at its expense the
Depositary with opinion(s) of counsel for the Company in the United States
and counsel to the Company in any other applicable country in which rights
would be distributed, in each case satisfactory to the Depositary, to the
effect that the offering and sale of such securities
19
to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other
applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any
distribution of property (including rights) an amount on account of taxes
or other governmental charges, the amount distributed to the Holders shall
be reduced accordingly. 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 charges which the
Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any
such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same
terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be
acquired upon the exercise of such rights.
SECTION 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares. Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give notice thereof to the Depositary on or before the
first date on which the Company gives notice, by publication or otherwise of the
proposed distribution and shall indicate whether or not it wishes such
distribution to be made to Holders of ADSs. Upon receipt of a notice indicating
that the Company wishes such distribution be made to Holders of ADSs, the
Depositary shall determine whether such distribution to Holders is lawful and
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have timely requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(a) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary may
distribute the property so received to the Holders of record as of the ADS
Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and customary expenses incurred by, the
Depositary, and (ii) net of any taxes and other governmental charges
withheld. The Depositary may dispose of all or a portion of the property so
distributed and deposited, in such amounts and in such manner (including
public or private sale) as the Depositary may deem practicable or necessary
to satisfy any taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
(b) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory documentation
within the terms of Section 5.7, or (iii) the Depositary determines that
all or a portion of such distribution is not reasonably practicable or
feasible, the Depositary shall endeavour to sell or cause such property
20
to be sold in a public or private sale, at such place or places and upon
such terms as it may deem proper and shall distribute the net proceeds, if
any, of such sale received by the Depositary (net of applicable (a) fees
and charges of, and expenses incurred by, the Depositary and (b) taxes) to
the Holders as of the ADS Record Date upon the terms of Section 4.1. If the
Depositary is unable to sell such property, the Depositary may dispose of
such property in any way it deems reasonably practicable under the
circumstances for nominal or no consideration and Holders and Beneficial
Owners shall have no rights thereto or arising therefrom.
SECTION 4.6 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 in the judgment of the Depositary such Foreign Currency can at such
time be converted on a practicable basis (by sale or in any other manner that it
may determine in accordance with applicable law) into Dollars transferable to
the United States and distributable to the Holders entitled thereto, 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 shall
distribute such Dollars (net of any fees, expenses, taxes or other governmental
charges incurred in the process of such conversion) in accordance with the terms
of the applicable sections of this Deposit Agreement. If the Depositary shall
have distributed warrants or other instruments that entitle the holders thereof
to such Dollars, the Depositary shall distribute such Dollars to the holders of
such warrants and/or instruments upon surrender thereof for cancellation, in
either case without liability for interest thereon. Such distribution may be
made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of exchange restrictions, the date of
delivery of any Receipt or otherwise.
Holders understand that in converting Foreign Currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report distribution rates (which in any case
will not be less than two decimal places). Any excess amount may be retained by
the Depositary as an additional cost of conversion, irrespective of any other
fees and expenses payable or owing hereunder and shall not be subject to
escheatment.
If such conversion or distribution can be effected only with the approval or
license of any government or agency thereof, the Depositary may file such
application for approval or license, if any, as it may deem necessary,
practicable and at nominal cost and expense. Nothing herein shall obligate the
Depositary to file or cause to be filed, or to seek effectiveness of any such
application or license.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not practical or lawful, or if
any approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied, or not
obtainable at a reasonable cost, within a reasonable period or otherwise sought,
the Depositary shall, in its sole discretion but subject to applicable laws and
regulations, either (i) distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) received by the
Depositary to the Holders entitled to receive such foreign currency, or (ii)
hold such foreign currency uninvested and without liability for interest thereon
for the respective accounts of the Holders entitled to receive the same.
21
SECTION 4.7 Fixing of Record Date. Whenever necessary in connection with any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each American Depositary Share, or whenever the
Depositary shall receive notice of any meeting of or solicitation of holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient, the Depositary shall fix a record date (the "ADS Record
Date"), as close as practicable to the record date fixed by the Company with
respect to the Shares, for the determination of the Holders who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or to
receive such notice or solicitation or to otherwise take action, or to exercise
the rights of Holders with respect to such changed number of Shares represented
by each American Depositary Share. Subject to applicable law and the provisions
of Section 4.1 through 4.6 and to the other terms and conditions of this Deposit
Agreement, only the Holders of record at the close of business in New York on
such ADS Record Date shall be entitled to receive such distribution, to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
SECTION 4.8 Voting of Deposited Securities. Subject to the next sentence, as
soon as practicable after receipt of notice of any meeting at which the holders
of Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of consent or proxy, in
accordance with Section 4.7. The Depositary shall, if requested by the Company
in writing in a timely manner (the Depositary having no obligation to take any
further action if the request shall not have been received by the Depositary at
least 21 Business Days prior to the date of such vote or meeting) and at the
Company's expense, unless otherwise agreed in writing by the Company and the
Depositary and provided no U.S. legal prohibitions exist, mail by regular,
ordinary mail delivery, or by electronic transmission, or otherwise distribute
to Holders as of the ADS Record Date: (a) such notice of meeting or solicitation
of consent or proxy; (b) a statement that the Holders at the close of business
on the ADS Record Date will be entitled, subject to any applicable law, the
provisions of the Deposit Agreement, the Articles of Association and the
provisions of or governing the Deposited Securities (which provisions, if any,
shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs; and (c) a brief
statement as to the manner in which such voting instructions may be given.
Voting instructions may be given only in respect of a number of ADSs
representing an integral number of Deposited Securities.
Notwithstanding anything contained in the Deposit Agreement or any Receipt, the
Depositary may, to the extent not prohibited by law, regulations or applicable
stock exchange requirements, in lieu of distribution of the materials provided
to the Depositary in connection with any meeting of, or solicitation of consents
or proxies from, holders of Deposited Securities, distribute to the Holders a
notice that provides Holders with a means to retrieve such materials or receive
such materials upon request (i.e., by reference to a website containing the
materials for retrieval or a contact for requesting copies of the materials).
The Depositary has been advised by the Company that under the Articles of
Association, voting at any meeting of shareholders of the Company is by poll
only.
Upon the timely receipt of voting instructions from a Holder of ADSs as of the
ADS Record Date in the manner specified by the Depositary, the Depositary shall
endeavour, insofar as
22
practicable and permitted under applicable law, the provisions of the Deposit
Agreement, the Articles of Association and the provisions of the Deposited
Securities, to vote or cause the Custodian to vote, the Deposited Securities (in
person or by proxy) represented by such Holder's ADSs as follows: when voting
takes place at a shareholders' meeting by poll, the Depositary will instruct the
Custodian to vote the Deposited Securities in accordance with the voting
instructions received from the Holders of ADSs.
Neither the Depositary nor the Custodian shall, under any circumstances exercise
any discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of, for
purposes of establishing a quorum or otherwise, the Deposited Securities
represented by ADSs, except pursuant to and in accordance with the voting
instructions timely received from Holders or as otherwise contemplated herein.
If the Depositary timely receives voting instructions from a Holder which fail
to specify the manner in which the Depositary is to vote the Deposited
Securities represented by such Holder's ADSs, the Depositary will deem such
Holder (unless otherwise specified in the notice distributed to Holders) to have
instructed the Depositary to vote in favour of the items set forth in such
voting instructions. Deposited Securities represented by ADSs for which no
timely voting instructions are received by the Depositary from the Holder shall
not be voted. Notwithstanding the above, save for applicable provisions of
Cayman Islands law, and in accordance with the terms of Section 5.3, the
Depositary shall not be liable for any failure to carry out any instructions to
vote any of the Deposited Securities, or for the manner in which such vote is
cast or the effect of any such vote, provided that the Depositary has exercised
due care in accordance with the standards set out in Section 5.3 hereof.
Notwithstanding anything else contained herein, the Depositary shall, if so
required in writing by the Company, represent all Deposited Securities (whether
or not voting instructions have been received in respect of such Deposited
Securities from Holders as of the ADS Record Date) for the sole purpose of
establishing quorum at a meeting of shareholders.
Notwithstanding anything else contained in the Deposit Agreement or any Receipt,
the Depositary shall not have any obligation to take any action with respect to
any meeting, or solicitation of consents or proxies, of holders of Deposited
Securities if the taking of such action would violate U.S. laws. The Company
agrees to take any and all actions reasonably necessary to enable Holders and
Beneficial Owners to exercise the voting rights relating to the Deposited
Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
There can be no assurance that Holders generally or any Holder in particular
will receive the notice described above with sufficient time to enable the
Holder to return voting instructions to the Depositary in a timely manner
SECTION 4.9 Changes Affecting Deposited Securities. Upon any change in par
value, split-up, cancellation, 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
otherwise a party, any securities which shall be received by the Depositary or
the Custodian in exchange for, or in conversion of or replacement or otherwise
in respect of, such Deposited Securities shall, to the extent permitted by law,
be treated as new Deposited Securities under this Deposit Agreement, and the
Receipts shall, subject to the provisions of this Deposit Agreement and
applicable law, evidence American Depositary Shares representing the right to
receive such additional securities. Alternatively, the Depositary may, with the
Company's approval, and shall, if the Company shall so request, subject to the
terms of the Deposit Agreement and receipt of an opinion of counsel to the
23
Company furnished at the Company's expense reasonably satisfactory to the
Depositary that such distributions are not in violation of any applicable laws
or regulations, execute and deliver additional Receipts as in the case of a
stock dividend on the Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts, in either case, as well as in the event of
newly deposited Shares, with necessary modifications to the form of Receipt
contained in Exhibit A hereto, specifically describing such new Deposited
Securities and/or corporate change. The Company agrees to, jointly with the
Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall, if the Company requests, subject to receipt of an opinion
of the Company's counsel furnished at the Company's expense reasonably
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or to any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
SECTION 4.10 Available Information. The Company is subject to the periodic
reporting requirements of the Exchange Act and, accordingly, is required to file
or submit certain reports with the Commission. These reports can be retrieved
from the Commission's website (www.sec.gov) and can be inspected and copied at
the public reference facilities maintained by the Commission located (as of the
date of the Deposit Agreement) at 100 F Street, N.E., Washington, D.C. 20549.
SECTION 4.11 Reports. The Depositary shall make available during normal
business hour on any Business Day for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Company agrees to provide to the Depositary, at
the Company's expense, all documents that it provides to the Custodian. The
Depositary shall, at the expense of the Company, unless otherwise agreed in
writing by the Company and the Depositary and in accordance with Section 5.6,
also mail by regular, ordinary mail delivery or by electronic transmission (if
agreed by the Company and the Depositary) to Holders copies of such reports when
furnished by the Company pursuant to Section 5.6.
SECTION 4.12 List of Holders. Promptly upon written request by the Company,
the Depositary shall furnish to it a list, as of a recent date, of the names,
addresses and holdings of American Depositary Shares by all persons in whose
names Receipts are registered on the books of the Depositary.
SECTION 4.13 Taxation; Withholding. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file necessary tax
24
reports with governmental authorities or agencies. The Depositary, the Custodian
or the Company and its agents may, but shall not be obligated to, file such
reports as are necessary to reduce or eliminate applicable taxes on dividends
and on other distributions in respect of Deposited Securities under applicable
tax treaties or laws for the Holders and Beneficial Owners. Holders and
Beneficial Owners of American Depositary Shares may be required from time to
time, and in a timely manner, to file such proof of taxpayer status, residence
and beneficial ownership (as applicable), to execute such certificates and to
make such representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary's or the Custodian's obligations under applicable law.
The Holders and Beneficial Owners shall 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 by the Beneficial Owner or Holder.
The Company shall remit to the appropriate governmental authority or agency any
amounts required to be withheld by the Company and owing to such governmental
authority or agency. Upon any such withholding, the Company shall remit to the
Depositary information, in a form reasonably satisfactory to the Depositary,
about such taxes or governmental charges withheld or paid, and, if so requested,
the tax receipt (or other proof of payment to the applicable governmental
authority) therefor. The Depositary shall, to the extent required by U.S. law,
report to Holders: (i) any taxes withheld by it; (ii) any taxes withheld by the
Custodian, subject to information being provided to the Depositary by the
Custodian; and (iii) any taxes withheld by the Company, subject to information
being provided to the Depositary by the Company. The Depositary and the
Custodian shall not be required to provide the Holders with any evidence of the
remittance by the Company (or its agents) of any taxes withheld, or of the
payment of taxes by the Company, except to the extent the evidence is provided
by the Company to the Depositary. Neither the Depositary, the Custodian nor 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.
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 shall withhold the amount required to be withheld and 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 Holders entitled thereto in proportion to the
number of American Depositary Shares held by them respectively.
The Depositary is under no obligation to provide the Holders and Beneficial
Owners with any information about the tax status of the Company. The Depositary
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 American
Depositary Shares.
SECTION 4.14 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
timely notice thereof to the Depositary which shall set forth the particulars of
the proposed redemption. Upon timely
25
receipt of (i) such notice and (ii) satisfactory documentation given by the
Company to the Depositary within the terms of Section 5.7, (iii) the provision
by the Company to the Depositary of a legal opinion (at the expense of the
Company) reasonably satisfactory to the Depositary that such redemption is
allowed under applicable law and only if the Depositary shall have determined
that such proposed redemption is practicable, the Depositary shall provide to
each Holder a notice setting forth the intended exercise by the Company of the
redemption rights and any other particulars set forth in the Company's notice to
the Depositary. The Depositary shall instruct the Custodian to present to the
Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and customary expenses incurred by, the Depositary, and (b) taxes),
retire ADSs and cancel Receipts, if applicable, upon delivery of such ADSs by
Holders thereof and the terms set forth in Sections 4.1 and 6.2 hereof. If less
than all outstanding Deposited Securities are redeemed, the ADSs to be retired
will be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar equivalent of the
per share amount received by the Depositary (adjusted to reflect the
ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited Securities
represented by ADSs (subject to the terms of Section 4.6 hereof and the
applicable fees and charges of, and customary expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
SECTION 5.1 Maintenance of Office and Transfer Books by the Registrar. Until
termination of this Deposit Agreement in accordance with its terms, the
Depositary or if a Registrar for the Receipts shall have been appointed, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the execution and delivery, registration, registration
of transfers, combination and split-up of Receipts, the surrender of Receipts
and the delivery and withdrawal of Deposited Securities in accordance with the
provisions of this Deposit Agreement.
The Depositary or the Registrar as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to this Deposit Agreement or the
Receipts.
The Depositary or the Registrar, as applicable, may close the transfer books
with respect to the Receipts, at any time or from time to time, when deemed
necessary or advisable by it in connection with the performance of its duties
hereunder, or at the reasonable written request of the Company.
If any Receipts or the American Depositary Shares evidenced thereby are listed
on one or more stock exchanges or automated quotation systems in the United
States, the Depositary shall act as Registrar or appoint a Registrar or one or
more co-registrars for registration of Receipts and transfers, combinations and
split-ups, and to countersign such Receipts in
26
accordance with any requirements of such exchanges or systems. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by the
Depositary.
If any Receipts or the American Depositary Shares evidenced thereby are listed
on one or more securities exchanges, markets or automated quotation systems, (i)
the Depositary shall be entitled to, and shall, take or refrain from taking such
action(s) as it may deem necessary or appropriate to comply with the
requirements of such securities exchange(s), market(s) or automated quotation
system(s) applicable to it, notwithstanding any other provision of this Deposit
Agreement; and (ii) upon the reasonable request of the Depositary, the Company
shall provide the Depositary such information and assistance as may be
reasonably necessary for the Depositary to comply with such requirements, to the
extent that the Company may lawfully do so.
SECTION 5.2 Exoneration. Neither the Depositary, the Custodian or the Company
shall be obligated to do or perform any act which is inconsistent with the
provisions of this Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or delayed in, doing or
performing any act or thing required by the terms of this Deposit Agreement, by
reason of any provision of any present or future law or regulation of the United
States or any state thereof, the Cayman Islands or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or on
account of the possible criminal or civil penalties or restraint, or by reason
of any provision, present or future, of the Articles of Association or any
provision of or governing any Deposited Securities, or by reason of any act of
God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement or in the
Articles of Association or provisions of or governing Deposited Securities,
(iii) for any action or inaction of the Depositary, the Custodian or the Company
or their respective controlling persons or agents in reliance upon the advice of
or information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner 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 Holders of American Depositary Shares or
(v) for any special, consequential, indirect or punitive damages for any breach
of the terms of this Deposit Agreement or otherwise.
The Depositary, its controlling persons, its agents, the Custodian and the
Company, its controlling persons and its agents may rely and shall be protected
in acting upon any written notice, request, opinion or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by any provision
of this Deposit Agreement.
SECTION 5.3 Standard of Care. The Company and the Depositary and their
respective agents assume no obligation and shall not be subject to any liability
under this Deposit Agreement or any Receipts to any Holder(s) or Beneficial
Owner(s) or other persons, except in accordance with Section 5.8, provided, that
the Company and the Depositary and their
27
respective agents agree to perform their respective obligations specifically set
forth in this Deposit Agreement or the applicable Receipt without gross
negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the Company,
nor any of their respective controlling persons, or agents, shall be under any
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expenses (including fees and disbursements of
counsel) and liabilities be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to carry out
any instructions to vote any of the Deposited Securities, or for the manner in
which any vote is cast or the effects of any vote provided that any such action
or omission is in accordance with the provisions of the Deposit Agreement. The
Depositary shall not incur any liability for any failure to determine that any
distribution or action may be lawful or reasonably practicable, for the content
of any information submitted to it by the Company for distribution to the
Holders or for any inaccuracy of any translation thereof, for any investment
risk associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
creditworthiness of any third party, for allowing any rights to lapse upon the
terms of this Deposit Agreement or for the failure or timeliness of any notice
from the Company, or for any action or non action by it in reliance upon the
opinion, advice of or information from legal counsel, accountants, any person
representing Shares for deposit, any Holder or any other person believed by it
in good faith to be competent to give such advice or information. The Depositary
and its agents 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 gross negligence or bad faith while it acted as Depositary.
SECTION 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. Subject to any other agreements otherwise agreed in
writing between the Company and the Depositary from time to time relating to
resignation and removal of the Depositary, the Depositary may at any time resign
as Depositary hereunder by written notice of resignation delivered to the
Company, such resignation to be effective on the earlier of (i) the 90th day
after delivery thereof to the Company (whereupon the Depositary shall, in the
event no successor depositary has been appointed by the Company, be entitled to
take the actions contemplated in Section 6.2), or (ii) upon the appointment by
the Company of a successor depositary and its acceptance of such appointment as
hereinafter provided, save that, any amounts, fees, costs or expenses owed to
the Depositary hereunder or in accordance with any other agreements otherwise
agreed in writing between the Company and the Depositary from time to time shall
be paid to the Depositary prior to such resignation.
The Company shall use reasonable efforts to appoint such successor depositary,
and give notice to the Depositary of such appointment, not more than 90 days
after delivery by the Depositary of written notice of resignation as provided in
this paragraph. In the event that notice of the appointment of a successor
depositary is not provided by the Company in
28
accordance with the preceding sentence, the Depositary shall be entitled to take
the actions contemplated in Section 6.2.
The Depositary may at any time be removed by the Company by written notice of
such removal, which removal shall be effective on the later of (i) the 90th day
after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such removal.
In case at any time the Depositary acting hereunder shall resign or be removed,
the Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
the City of New York. Every successor depositary shall be required by the
Company to 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 (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor. The predecessor depositary, upon payment of
all sums due to it and on the written request of the Company, shall (i) execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder (other than as contemplated in Sections 5.8 and
5.9), (ii)duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly mail notice of its
appointment to such Holders.
Any corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
SECTION 5.5 The Custodian. The Custodian or its successors in acting
hereunder shall be subject at all times and in all respects to the direction of
the Depositary for the Deposited Securities for which the Custodian acts as
custodian and shall be responsible solely to it. If any Custodian resigns or is
discharged from its duties hereunder with respect to any Deposited Securities
and no other Custodian has previously been appointed hereunder, the Depositary
shall promptly appoint a substitute custodian. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, in its
discretion, that it is appropriate to do so, it may appoint an additional entity
to act as Custodian with respect to any Deposited Securities, or discharge the
Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. After any such change, the Depositary shall give notice
thereof in writing to all Holders.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to be
the Custodian of the Deposited Securities without any further act or writing and
shall be subject to the direction of the successor depositary. The successor
depositary so appointed shall, nevertheless, on the
29
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 to act on the direction of such successor depositary.
SECTION 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in
English but otherwise in the form given or to be given to holders of Shares or
other Deposited Securities. The Company shall also furnish to the Custodian and
the Depositary a summary, in English, of any applicable provisions or proposed
provisions of the Articles of Association that may be relevant or pertain to
such notice of meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary (a) English language versions
of the other notices, reports and communications which are made generally
available by the Company to holders of its Shares or other Deposited Securities
and (b) English language versions of the Company's annual and other reports
prepared in accordance with the applicable requirements of the Commission. The
Depositary shall arrange, at the request of the Company and at the Company's
expense, unless otherwise agreed in writing by the Company and the Depositary,
for the mailing of copies thereof to all Holders, or by any other means as
agreed between the Company and the Depositary (at the Company's expense, unless
otherwise agreed in writing by the Company and the Depositary) or make such
notices, reports and other communications available for inspection by all
Holders, provided, that, the Depositary shall have received evidence
sufficiently satisfactory to it, including in the form of an opinion of local
and/or U.S. counsel or counsel of other applicable jurisdiction, furnished at
the expense of the Company, as the Depositary reasonably requests, that the
distribution of such notices, reports and any such other communications to
Holders from time to time is valid and does not or will not infringe any local,
U.S. or other applicable jurisdiction regulatory restrictions or requirements if
so distributed and made available to Holders. 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. The Company has delivered to the Depositary and the
Custodian a copy of the Articles of Association along with the provisions of or
governing the Shares and any other Deposited Securities issued by the Company or
any Affiliate of the Company, in connection with the Shares, in each case along
with a certified English translation thereof, and promptly upon any amendment
thereto or change therein, the Company shall deliver to the Depositary and the
Custodian a copy of such amendment thereto or change therein (along with a
certified English translation thereof). The Depositary may rely upon such copy
for all purposes of this Deposit Agreement.
The Depositary will make available a copy of any such notices, reports or
communications issued by the Company and delivered to the Depositary for
inspection by the Holders of the Receipts evidencing the American Depositary
Shares representing such Shares governed by such provisions at the Depositary's
Principal Office, at the office of the Custodian and at any other designated
transfer office.
SECTION 5.7 Issuance of Additional Shares, ADSs, etc. The Company agrees that
in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an
30
issuance of securities convertible into or exchangeable for Shares, (iv) an
issuance of rights to subscribe for securities convertible into or exchangeable
for Shares, (v) an elective dividend of cash or Shares, (vi) a redemption of
Deposited Securities, (vii) a meeting of holders of Deposited Securities, or
solicitation of consents or proxies, relating to any reclassification of
securities, merger or consolidation or transfer of assets or (viii) any
reclassification, recapitalization, reorganization, merger, consolidation or
sale of assets which affects the Deposited Securities, it will obtain U.S. legal
advice and take all steps necessary to ensure that the application of the
proposed transaction to Holders and Beneficial Owners does not violate the
registration provisions of the Securities Act, or any other applicable laws
(including, without limitation, the Investment Company Act of 1940, as amended,
the Exchange Act or the securities laws of the states of the United States). In
support of the foregoing, at the reasonable request of the Depositary, the
Company will furnish to the Depositary, at it's own expense, (a) a written
opinion of U.S. counsel (reasonably satisfactory to the Depositary) stating
whether or not application of such transaction to Holders and Beneficial Owners
(1) requires a registration statement under the Securities Act to be in effect
or (2) is exempt from the registration requirements of the Securities Act and
(b) an opinion of Cayman Islands counsel (reasonably satisfactory to the
Depositary) stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of the Cayman Islands
and (2) all requisite regulatory consents and approvals have been obtained in
the Cayman Islands. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence reasonably satisfactory to it that such
registration statement has been declared effective and that such distribution is
in accordance with all applicable laws or regulations. If, being advised by
counsel, the Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such transaction
to the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the Depositary
to take specific measures, in each case as contemplated in this Deposit
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any of its
Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act or have been registered under the Securities Act (and such registration
statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing in
this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
SECTION 5.8 Indemnification. The Company agrees to indemnify the Depositary,
any Custodian and each of their respective directors, officers, employees,
agents and Affiliates against, and hold each of them harmless from, any direct
losses, liabilities, taxes, costs, claims, judgments, proceedings, actions,
demands and any charges or expenses of any kind whatsoever (including, but not
limited to, reasonable attorney's fees and irrevocable value added tax and any
similar tax charged or otherwise imposed in respect thereof) (collectively
referred to as "Losses") which the Depositary or any agent thereof may incur or
which may
31
be made against it as a result of or in connection with its appointment or the
exercise of its powers and duties under this Agreement or that may arise (a) out
of or in connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Shares, or other
Deposited Securities, as the case may be, (b) out of or in connection with any
offering documents in respect thereof or (c) out of or in connection with acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with this Deposit Agreement, the Receipts, the American Depositary
Shares, the Shares, or any Deposited Securities, in any such case (i) by the
Depositary, the Custodian or any of their respective directors, officers,
employees, agents and Affiliates, except to the extent any such Losses arises
out of the negligence, bad faith or wilful misconduct of any of them, or (ii) by
the Company or any of its directors, officers, employees, agents and Affiliates.
Notwithstanding the above, in no event shall the Depositary or any of its
directors, officers, employees, agents and/or Affiliates be liable for any
indirect, special, punitive or consequential damages to the Company, Holders,
Beneficial Owners or any other person. The indemnities contained in this
paragraph shall not extend to any Loss that arises out of information (or
omissions from such information) relating to the Depositary or the Custodian,
furnished in writing to the Company by the Depositary or the Custodian expressly
for use in any registration statement, prospectus or proxy statement under the
Securities Act.
The Depositary agrees to indemnify the Company, its directors, officers,
employees, agents and Affiliates against and hold each of them harmless from any
Losses which may arise out of acts performed or omitted to be performed by the
Depositary or the Custodian or their directors, employees, agents and Affiliates
due to their negligence, bad faith or wilful misconduct.
Any person seeking indemnification hereunder (an "Indemnified Person") shall
notify the person from whom it is seeking indemnification (the "Indemnifying
Person") of the commencement of any indemnifiable action or claim promptly after
such Indemnified Person becomes aware of such commencement (and in no event more
than ten (10) days after receipt of notice of such commencement; provided that
the failure to make such notification shall not affect such Indemnified Person's
rights to indemnification except to the extent the Indemnifying Person is
materially prejudiced by such failure) and shall consult in good faith with the
Indemnifying Person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
under the circumstances. No Indemnified Person shall compromise or settle any
action or claim that may give rise to an indemnity hereunder without the consent
of the Indemnifying Person, which consent shall not be unreasonably withheld.
The obligations set forth in this Section shall survive the termination of this
Deposit Agreement and the succession or substitution of any party hereto.
SECTION 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively as provided for under Article 9 of the Form of Receipt
attached hereto as Exhibits A and B; provided, however, that no fees shall be
payable upon distribution of cash dividends so long as the charging of such fee
is prohibited by the exchange, if any, upon which the ADSs are listed. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges
32
payable by Holders and Beneficial Owners, only in the manner contemplated in
Section 6.1. The Depositary shall provide, without charge, a copy of its latest
fee schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation to the
payment of any additional remuneration to the Depositary in respect of any
exceptional duties which the Depositary finds necessary or desirable and agreed
by both parties in the performance of its obligations hereunder and in respect
of the actual costs and expenses of the Depositary in respect of any notices
required to be given to the Holders in accordance with Article 20 of the Form of
Receipt attached hereto as Exhibits A and B.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which are payable
by the Company shall be paid or be procured to be paid by the Company
(and any such amounts which are paid by the Depositary shall be
reimbursed to the Depositary by the Company upon demand therefor); and
(ii) such payment shall be subject to all necessary Cayman Islands
exchange control and other consents and approvals having been
obtained. The Company undertakes to use its reasonable endeavours to
obtain all necessary approvals that are required to be obtained by it
in this connection.
(iii)the Depositary may request, in its sole but reasonable discretion
after reasonable consultation with the Company, an opinion of counsel
regarding New York law, the laws of the Cayman Islands, or the laws of
any other relevant jurisdiction, to be furnished at the expense of the
Company, if at any time the Company or the Depositary reasonably
believes that such payment may not be practicable under applicable law
and the Depositary deems it necessary to seek such an opinion of
counsel.
The Company agrees to promptly pay to the Depositary such other fees, charges
and expenses and to reimburse the Depositary for such out-of-pocket expenses as
the Depositary and the Company may agree to in writing from time to time.
Responsibility for payment of such charges may at any time and from time to time
be changed by agreement between the Company and the Depositary. Unless otherwise
agreed, the Depositary shall present its statement for such expenses and fees or
charges to the Company once every three months.
All payments by the Company to the Depositary under this Section 5.9 shall be
paid without set-off or counterclaim, and free and clear of and without
deduction or withholding for or on account of, any present or future taxes,
levies, imports, duties, fees, assessments or other charges of whatever nature,
imposed by the Cayman Islands or by any department, agency or other political
subdivision or taxing authority thereof or therein, and all interest, penalties
or similar liabilities with respect thereto.
The Depositary has agreed with the Company to reimburse the Company for a
portion of certain expenses incurred in connection with the Company's initial
public offering and the establishment and maintenance of the ADR program and to
provide the Company with assistance in relation to our investor relations
program, the training of staff and certain other matters. Further, the
depositary has agreed to share with the Company certain fees payable to the
depositary by holders of ADSs. Neither the depositary bank nor the Company can
33
determine the exact amount to be made available to us because (i) the number of
ADSs that will be issued and outstanding, (ii) the level of service fees to be
charged to holders of ADSs and (iii) the Company's reimbursable expenses related
to the program are not known at this time.
The right of the Depositary to receive payment of fees, charges and expenses as
provided above shall survive the termination of this Deposit Agreement. As to
any Depositary, upon the resignation or removal of such Depositary as described
in Section 5.4, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
SECTION 5.10 Restricted Securities Owners/Ownership Restrictions. From time to
time or upon the reasonable request of the Depositary, the Company shall provide
to the Depositary a list setting forth, to the actual knowledge of the Company,
those persons or entities who beneficially own Restricted Securities and the
Company shall update that list on a regular basis. The Depositary may rely on
such a list or update but shall not be liable for any action or omission made in
reliance thereon. The Company agrees to advise in writing each of the persons or
entities who, to the knowledge of the Company, holds Restricted Securities
(other than the Restricted Securities that are allowed to be deposited with the
Depositary in accordance with Section 2.12 of this Deposit Agreement) that such
Restricted Securities are ineligible for deposit hereunder. The Company shall,
in accordance with the Deposit Agreement and the applicable Receipt, inform
Holders and Beneficial Owners and the Depositary of any other limitations on
ownership of Shares that the Holders and Beneficial Owners may be subject to by
reason of the number of American Depositary Shares held under the Articles of
Association or applicable Cayman Islands law, as such restrictions may be in
force from time to time.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.1 Amendment/Supplement. Subject to the terms and conditions of this
Section 6.1 and applicable law, the Receipts outstanding at any time, the
provisions of this Deposit Agreement and the form of Receipt attached hereto and
to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable and not
materially prejudicial to the Holders without the consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. Notice of any amendment to the Deposit Agreement or any Receipt shall
not need to describe 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 and Beneficial Owners to retrieve or
receive the text of such amendment (i.e., upon retrieval from the Commission's,
the Depositary's or the Company's website or upon request from the Depositary).
The parties hereto agree that any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order for
(a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act or (b) the American Depositary Shares or the Shares to be traded
solely in electronic book-
34
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 materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial
Owner at the time any amendment or supplement so becomes effective shall be
deemed, by continuing to hold such American Depositary Share or Shares, to
consent and agree to such amendment or supplement and to be bound by the Deposit
Agreement as amended and supplemented thereby. In no event shall any amendment
or supplement impair the right of the Holder to surrender such Receipt and
receive therefor the Deposited Securities represented thereby, except in order
to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the Receipt 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 with such laws, rules or regulations.
SECTION 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for such termination, provided that,
the Depositary shall be reimbursed for any amounts, fees, costs or expenses owed
to it in accordance with the terms of this Deposit Agreement and in accordance
with any other agreements as otherwise agreed in writing between the Company and
the Depositary from time to time, prior to such termination shall take effect.
If 90 days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.6 and subject to the conditions and restrictions therein set forth, and upon
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 such Receipt. If any Receipts shall remain outstanding after the
date of termination of this Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, and the Depositary shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights or other
property as provided in this Deposit Agreement, and shall continue to deliver
Deposited Securities, subject to the conditions and restrictions set forth in
Section 2.6, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from
35
the date of termination of this Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement with respect to the Receipts
and the Shares, Deposited Securities and American Depositary Shares, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case, the charges of the Depositary for the surrender
of a Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). 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 hereunder.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
SECTION 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for the
exclusive benefit of the parties hereto (and their successors) and shall not be
deemed to give any legal or equitable right, remedy or claim whatsoever to any
other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties hereto nor establish a fiduciary
or similar relationship among the parties. The parties hereto acknowledge and
agree that (i) the Depositary and its Affiliates may at any time have multiple
banking relationships with the Company and its Affiliates, (ii) the Depositary
and its Affiliates may be engaged at any time in transactions in which parties
adverse to the Company or the Holders or Beneficial Owners may have interests
and (iii) nothing contained in this Agreement shall (a) preclude the Depositary
or any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, or (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or relationships.
SECTION 7.3 Severability. In case any one or more of the provisions contained
in this Deposit Agreement or in the Receipts should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
SECTION 7.4 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of American Depositary Shares
shall be parties to the Deposit Agreement and shall be bound by all of the terms
and conditions hereof and of any Receipt by acceptance hereof or any beneficial
interest therein.
SECTION 7.5 Notices. Any and all notices to be given to the Company shall be
deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex, facsimile transmission or electronic transmission,
confirmed by letter, addressed to BCD
36
Semiconductor Manufacturing Limited, 800 Yishan Road, Shanghai 200233, China,
Attention: Chief Executive Officer (fax number: +8621-5450-0008), or to any
other address which the Company may specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have been
duly given if personally delivered or sent by mail, air courier or cable, telex,
facsimile transmission or by electronic transmission (if agreed by the Company
and the Depositary), at the Company's expense, unless otherwise agreed in
writing between the Company and the Depositary, confirmed by letter, addressed
to Deutsche Bank Trust Company Americas, 60 Wall Street, New York, New York
10005, USA Attention: ADR Department, telephone: (001)212602-1044, facsimile:
(001)212797 0327 or to any other address which the Depositary may specify in
writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been duly
given if personally delivered or sent by mail or cable, telex, facsimile
transmission or by electronic transmission (if agreed by the Company and the
Depositary), at the Company's expense, unless otherwise agreed in writing
between the Company and the Depositary, addressed to such Holder at the address
of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex, facsimile or
electronic transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex, facsimile or electronic transmission) is deposited, postage
prepaid, in a post-office letter box or delivered to an air courier service. The
Depositary or the Company may, however, act upon any cable, telex, facsimile or
electronic transmission received by it from the other or from any Holder,
notwithstanding that such cable, telex, facsimile or electronic transmission
shall not subsequently be confirmed by letter as aforesaid, as the case may be.
SECTION 7.6 Governing Law and Jurisdiction. This Deposit Agreement and the
Receipts shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York without reference to the principles of choice of law
thereof. Except as set forth in the following paragraph of this Section 7.6, the
parties to this Deposit Agreement agree that the federal or state courts in the
City of New York shall have jurisdiction to hear and determine any suit, action
or proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers National Corporate Research, Ltd.
(the "Agent") now at 225 W. 34th Street, Suite 910, New York, New York 10122 as
its authorized agent to receive and accept for and on its behalf, and on behalf
of its properties, assets and revenues, service by mail of any and all legal
process, summons, notices and documents that may be served in any suit, action
or proceeding brought against the Company in any federal or state court as
described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason the Agent shall cease to be available to act as such, the
Company agrees to designate a new agent in the City of New York on the terms and
for the purposes of this Section 7.6 reasonably satisfactory to the Depositary.
The Company further hereby irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents in any suit,
37
action or proceeding against the Company, by service by mail of a copy thereof
upon the Agent (whether or not the appointment of such Agent shall for any
reason prove to be ineffective or such Agent shall fail to accept or acknowledge
such service), with a copy mailed to the Company by registered or certified air
mail, postage prepaid, to its address provided in Section 7.5. The Company
agrees that the failure of the Agent to give any notice of such service to it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company unconditionally
agree that in the event that a Holder or Beneficial Owner brings a suit, action
or proceeding against (a) the Company, (b) the Depositary in its capacity as
Depositary under this Deposit Agreement or (c) against both the Company and the
Depositary, in any state or federal court of the United States, and the
Depositary or the Company have any claim, for indemnification or otherwise,
against each other arising out of the subject matter of such suit, action or
proceeding, then the Company and the Depositary may pursue such claim against
each other in the state or federal court in the United States in which such
suit, action, or proceeding is pending, and for such purposes, the Company and
the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in the manner
set forth in the preceding paragraph shall be effective service upon it for any
suit, action or proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.6, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
The provisions of this Section 7.6 shall survive any termination of this Deposit
Agreement, in whole or in part.
SECTION 7.7 Assignment. Subject to the provisions of Section 5.4, this
Deposit Agreement may not be assigned by either the Company or the Depositary.
SECTION 7.8 Agents. The Depositary shall be entitled, in its sole discretion,
to appoint one or more agents (the "Agents") of which it shall have control for
the purpose, inter alia, of making distributions to the Holders or otherwise
carrying out its obligations under this Agreement.
SECTION 7.9 Exclusivity. The Company agrees not to appoint any other
depositary for the issuance or administration of depositary receipts evidencing
any class of stock of the Company so long as Deutsche Bank Trust Company
Americas is acting as Depositary hereunder.
38
SECTION 7.10 Compliance with U.S. Securities Laws. Notwithstanding anything in
this Deposit Agreement to the contrary, the withdrawal or delivery of Deposited
Securities will not be suspended by the Company or the Depositary except as
would be permitted by Instruction I.A.(1) of the General Instructions to Form
F-6 Registration Statement, as amended from time to time, under the Securities
Act.
SECTION 7.11 Titles and References.(a) Deposit Agreement. All references in
the Deposit Agreement to exhibits, articles, sections, subsections, and
other subdivisions refer to the exhibits, articles, sections, subsections
and other subdivisions of this Deposit Agreement unless expressly provided
otherwise. The words "the Deposit Agreement", "herein", "hereof", "hereby",
"hereunder", and words of similar import refer to the Deposit Agreement as
a whole as in effect between the Company, the Depositary and the Holders
and Beneficial Owners of ADSs and not to any particular subdivision unless
expressly so limited. Pronouns in masculine, feminine and neuter gender
shall be construed to include any other gender, and words in the singular
form shall be construed to include the plural and vice versa unless the
context otherwise requires. Titles to sections of this Deposit Agreement
are included for convenience only and shall be disregarded in construing
the language contained in the Deposit Agreement.
(b) Receipts. All references in any Receipt(s) to paragraphs, exhibits,
articles, sections, subsections, and other subdivisions refer to the
paragraphs, exhibits, articles, sections, subsections and other
subdivisions of the Receipt(s) in question unless expressly provided
otherwise. The words "the Receipt", "the Receipt", "herein", "hereof",
"hereby", "hereunder", and words of similar import used in any Receipt
refer to the Receipt as a whole and as in effect at the relevant time, and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender in any Receipt shall be construed to
include any other gender, and words in the singular form shall be construed
to include the plural and vice versa unless the context otherwise requires.
Titles to paragraphs of any Receipt are included for convenience only and
shall be disregarded in construing the language contained in the Receipt.
References to "applicable laws and regulations" shall refer to laws and
regulations applicable to Receipts, ADSs or Deposited Securities as in
effect at the relevant time of determination, unless otherwise required by
law or regulation.
SECTION 7.12 Cayman Islands Law References. Any summary or reference of the
Cayman Islands laws and regulations and of the terms of the Articles of
Association set forth in the Deposit Agreement have been provided by the Company
solely for the convenience of Holders, Beneficial Owners and the Depositary.
While such summaries or references are believed by the Company to be accurate as
of the date of the Deposit Agreement, (i) they are summaries or references and
as such may not include all aspects of the materials summarized or referenced
applicable to a Holder or Beneficial Owner, and (ii) these laws and regulations
and the Articles of Association may change after the date of the Deposit
Agreement. Neither the Depositary nor the Company has any obligation under the
terms of the Deposit Agreement to update any such summaries or references.
39
IN WITNESS WHEREOF, BCD SEMICONDUCTOR MANUFACTURING LIMITED and DEUTSCHE BANK
TRUST COMPANY AMERICAS have duly executed this Deposit Agreement as of the day
and year first above set forth and all Holders and Beneficial Owners shall
become parties hereto upon acceptance by them of American Depositary Shares
evidenced by Receipts issued in accordance with the terms hereof or upon
acquisition of any beneficial interest therein.
BCD SEMICONDUCTOR MANUFACTURING LIMITED
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
40
CUSIP: 055347108
ISIN: US0553471089
American Depositary Shares
(Each American Depositary
Share representing five
of Fully Paid Common
Shares)
EXHIBIT A
[FORM OF FACE OF RECEIPT]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
Of
BCD SEMICONDUCTOR MANUFACTURING LIMITED
(Incorporated under the laws of the Cayman Islands)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary (herein called the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, each of Par Value of U.S. $0.001 including evidence of rights to receive
such ordinary shares (the "Shares") of BCD Semiconductor Manufacturing Limited
(the "Company"), a company incorporated under the laws of the Cayman Islands
(the "Company"). As of the date of the Deposit Agreement (hereinafter referred
to), each ADS represents five Shares deposited under the Deposit Agreement with
the Custodian which at the date of execution of the Deposit Agreement is
Deutsche Bank AG, Hong Kong Branch (the "Custodian"). The ratio of Depositary
Shares to shares of stock is subject to subsequent amendment as provided in
Article IV of the Deposit Agreement. The Depositary's Principal Office is
located at 60 Wall Street, New York, New York 10005, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an issue
of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as
of [ ], 2008 (as amended from time to time, the "Deposit Agreement"), by
and among the Company, the Depositary, and all Holders and Beneficial
Owners from time to time of Receipts
A-1
issued thereunder. The Deposit Agreement sets forth the rights and
obligations of Holders and Beneficial Owners of Receipts and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time, received
in respect of such Shares and held thereunder (such Shares, other
securities, property and cash are herein called "Deposited Securities").
Copies of the Deposit Agreement are on file at the Principal Office of the
Depositary and the Custodian.
Each Holder and each Beneficial Owner, 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 Receipt,
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 Receipt, 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
Receipt, the taking of such actions to be the conclusive determinant of the
necessity and appropriateness thereof.
The statements made on the face and reverse of this Receipt are summaries
of certain provisions of the Deposit Agreement and the Articles of
Association (as in effect on the date of the Deposit Agreement) and are
qualified by and subject to the detailed provisions of the Deposit
Agreement, to which reference is hereby made. All capitalized terms used
herein which are not otherwise defined herein shall have the meanings
ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance of the
American Depositary Shares into DTC. Each Beneficial Owner of American
Depositary Shares held through DTC must rely on the procedures of DTC and
the DTC participants to exercise and be entitled to any rights attributable
to such American Depositary Shares. The Receipt evidencing the American
Depositary Shares held through DTC will be registered in the name of a
nominee of DTC. So long as the American Depositary Shares are held through
DTC or unless otherwise required by law, ownership of beneficial interests
in the Receipt registered in the name of DTC (or its nominee) will be shown
on, and transfers of such ownership will be effected only through, records
maintained by (i) DTC (or its nominee), or (ii) DTC participants (or their
nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by
this Receipt for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of (i) the charges of the Depositary
for the making of withdrawals and cancellation of Receipts (as set forth in
Article (9) and in Section 5.9 and Exhibit A of the Deposit Agreement) and
(ii) all fees, taxes and governmental charges payable in connection with
such surrender and withdrawal, and, subject to the terms and conditions of
the Deposit Agreement, the Articles of Association, Section 7.9 of the
Deposit Agreement, Article (22) of this Receipt and the provisions of or
governing the Deposited Securities and other applicable laws, the Holder of
the American Depositary Shares evidenced hereby is entitled to delivery, to
him or upon his order, of the Deposited Securities represented by the ADS
so surrendered. Subject to the
A-2
last sentence of this paragraph, such Deposited Securities may be delivered
in certificated form or by electronic delivery. ADS may be surrendered for
the purpose of withdrawing Deposited Securities by delivery of a Receipt
evidencing such ADS (if held in registered form) or by book-entry delivery
of such ADS to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper
instruments of transfer in blank, and if the Depositary so requires, the
Holder thereof shall execute and deliver to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn
to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon, the Depositary shall direct the
Custodian to Deliver (without unreasonable delay) at the designated office
of the Custodian (subject to the terms and conditions of the Deposit
Agreement, the Articles of Association, and the provisions of or governing
the Deposited Securities and applicable laws, now or hereafter in effect),
to or upon the written order of the person or persons designated in the
order delivered to the Depositary as provided above, the Deposited
Securities represented by such ADSs, together with any certificate or other
proper documents of or relating to title for the Deposited Securities or
evidence of the electronic transfer thereof (if available) as the case may
be to or for the account of such person. The Depositary may make delivery
to such person or persons at the Principal Office of the Depositary of any
dividends or distributions with respect to the Deposited Securities
represented by such Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number of Shares other
than a whole number of Shares. In the case of surrender of a Receipt
evidencing a number of ADSs representing other than a whole number of
Shares, the Depositary shall cause ownership of the appropriate whole
number of Shares to be delivered in accordance with the terms hereof, and
shall, at the discretion of the Depositary, either (i) issue and deliver to
the person surrendering such Receipt representing any remaining fractional
Share, or (ii) sell or cause to be sold the fractional Share represented by
the Receipt so surrendered in a riskless principal capacity, in a public
sale or if no public market is available, in a private sale, and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and
customary expenses incurred by, the Depositary and (b) taxes withheld) to
the person surrendering the Receipt. At the request, risk and expense of
any Holder so surrendering a Receipt, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held
in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented
by such Receipt to the Depositary for delivery at the Principal Office of
the Depositary, and for further delivery to such Holder. Such direction
shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the terms and
conditions of the Deposit Agreement, the Registrar shall register transfers
of Receipts on its books, upon surrender at the Principal Office of the
Depositary of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments
of transfer (including signature guarantees in
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accordance with standard industry practice) and duly stamped if required by
the laws of the State of New York and of the United States of America, of
the Cayman Islands and of any other applicable jurisdiction. Subject to the
terms and conditions of the Deposit Agreement, including payment of the
applicable fees and charges of the Depositary, the Depositary shall execute
and deliver a new Receipt(s) (and if necessary, cause the Registrar to
countersign such Receipt(s)) and deliver same to or upon the order of the
person entitled to such Receipts evidencing the same aggregate number of
ADSs as those evidenced by the Receipts surrendered. Upon surrender of a
Receipt or Receipts for the purpose of effecting a split-up or combination
of such Receipt or Receipts upon payment of the applicable fees and charges
of the Depositary, and subject to the terms and conditions of the Deposit
Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition precedent to
the execution and delivery, registration of transfer, split-up, combination
or surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of
Shares or presenter of the Receipt of a sum sufficient to reimburse it for
any tax or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with
respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matters
and (iii) compliance with (A) any laws or governmental regulations relating
to the execution and delivery of Receipts and ADSs or to the withdrawal of
Deposited Securities and (B) such reasonable regulations of the Depositary
or the Company consistent with the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs
against the deposit of particular Shares may be withheld, or the
registration of transfer of Receipts in particular instances may be
refused, or the registration of transfer of Receipts generally may be
suspended, during any period when the transfer books of the Depositary are
closed or if any such action is deemed necessary or advisable by the
Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any government or governmental body or
commission or any securities exchange upon which the Receipts or Share are
listed, or under any provision of the Deposit Agreement or provisions of,
or governing, the Deposited Securities or any meeting of shareholders of
the Company or for any other reason, subject in all cases to Article (22).
Notwithstanding any provision of the Deposit Agreement or any Receipt to
the contrary, Holders are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities associated herewith at any time subject
only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with
voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, (iii) compliance with any U.S.
or foreign laws or governmental regulations relating to the Receipts or
ADSs or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Instruction
A-4
I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time). Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement (A) any Shares or other Deposit Securities required to be
registered under the provisions of the Securities Act, unless (i) a
registration statement is in effect as to such Shares or other securities
or (ii) the deposit is made upon terms contemplated in Section 2.12 of the
Deposit Agreement, or (B) any Shares or other securities the deposit of
which would violate any provisions of the Articles of Association.
(5) Compliance With Information Requests. Notwithstanding any other provision
of the Deposit Agreement or this Receipt, each Holder and Beneficial Owner
of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the laws of the Cayman Islands, the rules and
requirements of NASDAQ and any other stock exchange on which the Shares
are, or will be registered, traded or listed, the Articles of Association,
which are made to provide information as to the capacity in which such
Holder or Beneficial Owner owns ADSs and regarding the identity of any
other person interested in such ADSs and the nature of such interest and
various other matters whether or not they are Holders and/or Beneficial
Owner at the time of such request. The Depositary agrees to use reasonable
efforts to forward any such requests to the Holders and to forward to the
Company any such responses to such requests received by the Depositary.
(6) Liability of Holder for Taxes, Duties and Other Charges. If any tax or
other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Receipt or any Deposited Securities or ADSs,
such tax, or other governmental charge shall be payable by the Holders and
Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of the Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including
applicable interest and penalties) or charges, with the Holder and the
Beneficial Owner hereof remaining fully liable for any deficiency. The
Custodian may refuse the deposit of Shares, and the Depositary may refuse
to issue ADSs, to deliver Receipts, register the transfer, split-up or
combination of Receipts and (subject to Article (22)) the withdrawal of
Deposited Securities, until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to indemnify
the Depositary, the Company, the Custodian and each of their respective
agents, officers, directors, employees and Affiliates for, and hold each of
them harmless from, any claims with respect to taxes (including applicable
interest and penalties thereon) arising from any tax benefit obtained for
such Holder and/or Beneficial Owner.
Holders understand that in converting Foreign Currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report distribution rates (which in any
case will not be less than two decimal places). Any excess amount may be
retained by the Depositary as an additional cost of conversion,
irrespective of any other fees and expenses payable or owing hereunder and
shall not be subject to escheatment.
(7) Representations and Warranties of Depositors. Each person depositing Shares
under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such
A-5
Shares (and the certificates therefor) are duly authorized, validly issued,
fully paid, non-assessable and were legally obtained by such person, (ii)
all preemptive (and similar) rights, if any, with respect to such Shares,
have been validly waived or exercised, (iii) the person making such deposit
is duly authorized so to do, (iv) the Shares presented for deposit are free
and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim and are not, and the ADSs issuable upon such deposit will not
be, Restricted Securities and (v) the Shares presented for deposit have not
been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Shares and the
issuance, cancellation and transfer of ADSs. If any such representations or
warranties are false in any way, the Company and Depositary shall be
authorized, at the cost and expense of the person depositing Shares, to
take any and all actions necessary to correct the consequences thereof.
(8) Filing Proofs, Certificates and Other Information. Any person presenting
Shares for deposit, any Holder and any Beneficial Owner may be required,
and every Holder and Beneficial Owner agrees, from time to time to provide
to the Depositary such proof of citizenship or residence, taxpayer status,
payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or
other information as the Depositary deem necessary or proper or as the
Company may reasonably require by written request to the Depositary
consistent with its obligations under the Deposit Agreement. Subject to
Article (22) and the terms of the Deposit Agreement, the Depositary and the
Registrar, as applicable, may withhold the delivery or registration of
transfer of any Receipt or the distribution or sale of any dividend or
other 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 certifications are executed, or such representations and warranties
made, or such information and documentation are provided.
(9) Charges of Depositary. The Depositary shall charge the following fees for
the services performed under the terms of the Deposit Agreement, unless
otherwise agreed in writing by the Company and the Depositary; provided,
however, that no fees shall be payable upon distribution of cash dividends
so long as the charging of such fee is prohibited by the exchange, if any,
upon which the ADSs are listed:
(i) to any person to whom ADSs are issued or to any person to whom a
distribution is made in respect of ADS distributions pursuant to stock
dividends or other free distributions of stock, bonus distributions,
stock splits or other distributions (except where converted to cash),
a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof)
so issued under the terms of the Deposit Agreement to be determined by
the Depositary;
(ii) to any person surrendering ADSs for cancellation and withdrawal of
Deposited Securities including, inter alia, cash distributions made
pursuant to a cancellation or withdrawal, a fee not in excess of U.S.
$5.00 per 100 ADSs (or fraction thereof) so surrendered;
A-6
(iii) to any Holder of ADSs, a fee not in excess of U.S. $2.00 per 100 ADSs
held for the distribution of cash proceeds, including cash dividends
or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal;
(iv) to any holder of ADSs, a fee not in excess of U.S. $5.00 per 100 ADSs
(or portion thereof) issued upon the exercise of rights;
(v) for the operation and maintenance costs in administering the ADSs an
annual fee of U.S. $2.00 or less per 100 ADSs; and
(vi) in connection with inspections of the relevant share register
maintained by the local registrar, if applicable undertaken by the
Depositary, the Custodian or their respective agents: an annual fee of
U.S. $1.00 or less per 100 ADSs (such fee to be assessed against
Holders of record as of the date or dates set by the Depositary as it
sees fit and collected at the sole discretion of the Depositary by
billing such Holders for such fee or by deducting such fee from one or
more cash dividends or other cash distributions.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities with the Foreign
Registrar and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii)such cable, telex, facsimile and electronic transmission and delivery
expenses as are expressly provided in the Deposit Agreement to be at
the expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of Receipts;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and
Receipts;
(vi) the fees and expenses incurred by the Depositary in connection with
the delivery of Deposited Securities, including any fees of a central
depository for securities in the local market, where applicable; and
(vii)any additional fees, charges, costs or expenses that may be incurred
by the Depositary from time to time.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary
and the Company.
A-7
All fees and charges may, at any time and from time to time, be changed by
agreement between the Depositary and Company but, in the case of fees and
charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (20) of this Receipt.
(10) Title to Receipts. It is a condition of this Receipt, and every successive
Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) is
transferable by delivery of the Receipt, provided it has been properly
endorsed or accompanied by proper instruments of transfer, such Receipt
being a certificated security under the laws of the State of New York.
Notwithstanding any notice to the contrary, the Depositary may deem and
treat the Holder of this Receipt (that is, the person in whose name this
Receipt is registered on the books of the Depositary) as the absolute owner
hereof for all purposes. The Depositary shall have no obligation or be
subject to any liability under the Deposit Agreement or this Receipt to any
holder of this Receipt or any Beneficial Owner unless such holder is the
Holder of this Receipt registered on the books of the Depositary or, in the
case of a Beneficial Owner, such Beneficial Owner or the Beneficial Owner's
representative is the Holder registered on the books of the Depositary.
(11) Validity of Receipt. This Receipt shall not be entitled to any benefits
under the Deposit Agreement or be valid or enforceable for any purpose,
unless this Receipt has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
if a Registrar for the Receipts shall have been appointed, countersigned by
the manual or facsimile signature of a duly authorized signatory of the
Registrar and (iv) registered in the books maintained by the Depositary or
the Registrar, as applicable, for the issuance and transfer of Receipts.
Receipts bearing the facsimile signature of a duly-authorized signatory of
the Depositary or the Registrar, who at the time of signature was a
duly-authorized signatory of the Depositary or the Registrar, as the case
may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the execution and
delivery of such Receipt by the Depositary or did not hold such office on
the date of issuance of such Receipts.
(12) Available Information; Reports; Inspection of Transfer Books. The Company
is subject to the periodic reporting requirements of the Exchange Act and
accordingly is required to file or submit certain reports with the
Commission. These reports can be retrieved from the Commission's website
(www.sec.gov) and can be inspected and copied at the public reference
facilities maintained by the Commission located (as of the date of the
Deposit Agreement) at 100 F Street, N.E., Washington, D.C. 20549. The
Depositary shall make available during normal business hours on any
Business Day for inspection by Holders at its Principal Office any reports
and communications, including any proxy soliciting materials, received from
the Company which are both (a) received by the Depositary, the Custodian,
or the nominee of either of them as the holder of the Deposited Securities
and (b) made generally available to the holders of such Deposited
Securities by the Company.
The Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable
times shall be open for inspection by the Company and by the Holders of
such Receipts, provided that such inspection shall not be, to the
Depositary's or the Registrar's knowledge, for the
A-8
purpose of communicating with Holders of such Receipts in the interest of a
business or object other than the business of the Company or other than a
matter related to the Deposit Agreement or the Receipts.
The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, at any time or from time to time, when
deemed necessary or advisable by it in good faith in connection with the
performance of its duties hereunder, or at the reasonable written request
of the Company subject, in all cases, to Article (22).
Dated: DEUTSCHE BANK TRUST COMPANY
AMERICAS, as Depositary
By:
-----------------------
[ ]
The address of the Principal Office of the Depositary is 60 Wall Street, New
York, New York 10005, U.S.A.
A-9
EXHIBIT B
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions in Cash, Shares, etc. Whenever the Depositary
receives confirmation from the Custodian of receipt of any cash dividend or
other cash distribution on any Deposited Securities, or receives proceeds
from the sale of any Shares, rights securities or other entitlements under
the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the judgment of
the Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds
into Dollars and will distribute promptly the amount thus received (net of
applicable fees and charges of, and customary expenses incurred by, the
Depositary and taxes withheld) to the Holders of record as of the ADS
Record Date in proportion to the number of ADS representing such Deposited
Securities held by such Holders respectively as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be
distributed without attributing to any Holder a fraction of one cent. Any
such fractional amounts shall be rounded to the nearest whole cent and so
distributed to Holders entitled thereto. If the Company, the Custodian 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, duties or other governmental charges, the
amount distributed to Holders on the ADSs representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Any foreign currency received by the Depositary
shall be converted upon the terms and conditions set forth in the Deposit
Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares
to be deposited with the Custodian and registered, as the case may be, in
the name of the Depositary, the Custodian or their nominees. Upon receipt
of confirmation of such deposit, the Depositary shall, subject to and in
accordance with the Deposit Agreement, establish the ADS Record Date and
either (i) distribute to the Holders as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in aggregate the number of Shares received as such
dividend, or free distribution, subject to the terms of the Deposit
Agreement (including, without limitation, the applicable fees and charges
of, and customary expenses incurred by, the Depositary, and taxes), or (ii)
if additional ADSs are not so distributed, each ADS issued and outstanding
after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interest in the additional Shares
distributed upon the Deposited Securities represented thereby (net of the
applicable fees and charges of, and the expenses incurred by, the
Depositary, and taxes). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Shares represented by the aggregate of
such fractions and distribute the proceeds upon the terms set forth in the
Deposit Agreement.
B-1
In the event that (x) the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, or, (y) if the
Company, in the fulfillment of its obligations under the Deposit Agreement,
has either (a) furnished an opinion of U.S. counsel determining that Shares
must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been
declared effective), or (b) fails to timely deliver the documentation
contemplated in the Deposit Agreement, the Depositary may dispose of all or
a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable, and the
Depositary shall distribute the net proceeds of any such sale (after
deduction of taxes and fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance
of such property in accordance with the provisions of the Deposit
Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms
described in the Deposit Agreement, the Depositary shall, upon provision of
all documentation required under the Deposit Agreement, (including, without
limitation, any legal opinions of counsel the Depositary may reasonably
request under the Deposit Agreement) determine whether such distribution is
lawful and reasonably practicable. If so, the Depositary shall, subject to
the terms and conditions of the Deposit Agreement, establish an ADS Record
Date according to Article (14) and establish procedures to enable the
Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash,
the dividend shall be distributed as in the case of a distribution in cash.
If the Holder hereof elects to receive the distribution in additional ADSs,
the distribution shall be distributed as in the case of a distribution in
Shares upon the terms described in the Deposit Agreement. If such elective
distribution is not lawful or reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit
Agreement, the Depositary shall, to the extent permitted by law, distribute
to Holders, on the basis of the same determination as is made in Cayman
Islands in respect of the Shares for which no election is made, either (x)
cash or (y) additional ADSs representing such additional Shares, in each
case, upon the terms described in the Deposit Agreement. Nothing herein
shall obligate the Depositary to make available to the Holder hereof a
method to receive the elective distribution in Shares (rather than ADSs).
There can be no assurance that the Holder hereof will be given the
opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares to be made available to
Holders of ADSs, the Company shall determine whether it is lawful and
reasonably practicable to make such rights available to the Holders. The
Depositary shall make such rights available to any Holders only if the
Company shall have timely requested that such rights be made available to
Holders, the Depositary shall have received the documentation required by
the Deposit Agreement, and the Depositary shall have determined that such
distribution of rights is lawful and reasonably practicable. If such
conditions are not satisfied, the Depositary shall sell the rights as
described below. In the event all conditions set forth above are satisfied,
the Depositary shall, subject to and in
B-2
accordance with the Deposit Agreement, establish an ADS Record Date and
establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon
payment of the applicable fees and charges of, and customary expenses
incurred by, the Depositary and taxes). Nothing herein or in the Deposit
Agreement shall obligate the Depositary to make available to the Holders a
method to exercise such rights to subscribe for Shares (rather than ADSs).
If (i) the Company does not timely request the Depositary to make the
rights available to Holders or if the Company requests that the rights not
be made available to Holders, (ii) the Depositary fails to receive the
documentation required by the Deposit Agreement or determines it is not
lawful or reasonably practicable to make the rights available to Holders,
or (iii) any rights made available are not exercised and appear to be about
to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal
capacity or otherwise, at such place and upon such terms (including public
and private sale) as it may deem proper. The Depositary shall, upon such
sale, convert and distribute proceeds of such sale (net of applicable fees
and charges of, and customary expenses incurred by, the Depositary and
taxes) upon the terms hereof and in the Deposit Agreement. If the
Depositary is unable to make any rights available to Holders or to arrange
for the sale of the rights upon the terms described above, the Depositary
shall allow such rights to lapse. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make
such rights available to Holders in general or any Holders in particular,
(ii) any foreign exchange exposure or loss incurred in connection with such
sale, or exercise, or (iii) the content of any materials forwarded to the
Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein to the contrary, if registration (under the
Securities Act or any other applicable law) of the rights or the securities
to which any rights relate may be required in order for the Company to
offer such rights or such securities to Holders and to sell the securities
represented by such rights, the Depositary will not distribute such rights
to the Holders (i) unless and until a registration statement under the
Securities Act covering such offering is in effect or (ii) unless the
Company furnishes to the Depositary opinion(s) of counsel for the Company
in the United States and counsel to the Company in any other applicable
country in which rights would be distributed, in each case reasonably
satisfactorily to the Depositary, to the effect that the offering and sale
of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any
distribution of property (including rights) an amount on account of taxes
or other governmental charges, the amount distributed to the Holders shall
be reduced accordingly. 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 charges which the
Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable to pay any
such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same
terms and conditions as the holders of Shares or to exercise such rights.
Nothing herein shall obligate the
B-3
Company to file any registration statement in respect of any rights or
Shares or other securities to be acquired upon the exercise of such rights.
Upon receipt of a notice regarding property other than cash, Shares or
rights to purchase additional Shares, to be made to Holders of ADSs, the
Depositary shall determine, upon consultation with the Company, whether
such distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall
have timely requested the Depositary to make such distribution to Holders,
(ii) the Depositary shall have received the documentation required by the
Deposit Agreement, and (iii) the Depositary shall have determined that such
distribution is lawful and reasonably practicable. Upon satisfaction of
such conditions, the Depositary shall distribute the property so received
to the Holders of record as of the ADS Record Date, in proportion to the
number of ADSs held by such Holders respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i)
upon receipt of payment or net of the applicable fees and charges of, and
customary expenses incurred by, the Depositary, and (ii) net of any taxes
withheld. The Depositary may dispose of all or a portion of the property so
distributed and deposited, in such amounts and in such manner (including
public or private sale) as the Depositary may deem practicable or necessary
to satisfy any taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place
or places and upon such terms as it may deem proper and shall distribute
the proceeds of such sale received by the Depositary (net of (a) applicable
fees and charges of, and customary expenses incurred by, the Depositary and
(b) taxes) to the Holders upon the terms hereof and of the Deposit
Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property in any way it deems reasonably
practicable under the circumstances.
(14) Fixing of Record Date. Whenever necessary in connection with any
distribution (whether in cash, shares, rights or other distribution), or
whenever for any reason the Depositary causes a change in the number of
Shares that are represented by each ADS, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or
convenient in connection with the giving of any notice, or any other
matter, the Depositary shall fix a record date ("ADS Record Date"), as
close as practicable to the record date fixed by the Company with respect
to the Shares, for the determination of the Holders who shall be entitled
to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or
to receive such notice or solicitation or to otherwise take action, or to
exercise the rights of Holders with respect to such changed number of
Shares represented by each ADS. Subject to applicable law and the terms and
conditions of this Receipt and the Deposit Agreement, only the Holders of
record at the close of business in New York on such ADS Record Date shall
be entitled to receive such distributions, to give such voting
instructions, to receive such notice or solicitation, or otherwise take
action.
(15) Voting of Deposited Securities. Subject to the next sentence, as soon as
practicable after receipt of notice of any meeting at which the holders of
Deposited Securities are
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entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in
respect of such meeting or solicitation of consent or proxy, in accordance
with Section 4.7 of the Deposit Agreement. The Depositary shall, if
requested by the Company in writing in a timely manner (the Depositary
having no obligation to take any further action if the request shall not
have been received by the Depositary at least 21 Business Days prior to the
date of such vote or meeting) and at the Company's expense, unless
otherwise agreed in writing by the Company and the Depositary and provided
no U.S. legal prohibitions exist, mail by regular, ordinary mail delivery,
or by electronic transmission, or otherwise distribute to Holders as of the
ADS Record Date: (a) such notice of meeting or solicitation of consent or
proxy; (b) a statement that the Holders at the close of business on the ADS
Record Date will be entitled, subject to any applicable law, the provisions
of the Deposit Agreement, the Articles of Association and the provisions of
or governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as
to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by such Holder's ADSs; and (c) a brief statement as
to the manner in which such voting instructions may be given. Voting
instructions may be given only in respect of a number of ADSs representing
an integral number of Deposited Securities.
Notwithstanding anything contained in the Deposit Agreement or any Receipt,
the Depositary may, to the extent not prohibited by law, regulations or
applicable stock exchange requirements, in lieu of distribution of the
materials provided to the Depositary in connection with any meeting of, or
solicitation of consents or proxies from, holders of Deposited Securities,
distribute to the Holders a notice that provides Holders with a means to
retrieve such materials or receive such materials upon request (i.e., by
reference to a website containing the materials for retrieval or a contact
for requesting copies of the materials).
The Depositary has been advised by the Company that under the Articles of
Association, voting at any meeting of shareholders of the Company is by
poll only.
Upon the timely receipt of voting instructions from a Holder of ADSs as of
the ADS Record Date in the manner specified by the Depositary, the
Depositary shall endeavour, insofar as practicable and permitted under
applicable law, the provisions of the Deposit Agreement, the Articles of
Association and the provisions of the Deposited Securities, to vote or
cause the Custodian to vote, the Deposited Securities (in person or by
proxy) represented by such Holder's ADSs as follows: when voting takes
place at a shareholders' meeting by poll, the Depositary will instruct the
Custodian to vote the Deposited Securities in accordance with the voting
instructions received from the Holders of ADSs.
Neither the Depositary nor the Custodian shall, under any circumstances
exercise any discretion as to voting, and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way
make use of, for purposes of establishing a quorum or otherwise, the
Deposited Securities represented by ADSs, except pursuant to and in
accordance with the voting instructions timely received from Holders or as
otherwise contemplated herein. If the Depositary timely receives voting
instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder's
ADSs, the
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Depositary will deem such Holder (unless otherwise specified in the notice
distributed to Holders) to have instructed the Depositary to vote in favour
of the items set forth in such voting instructions. Deposited Securities
represented by ADSs for which no timely voting instructions are received by
the Depositary from the Holder shall not be voted. Notwithstanding the
above, save for applicable provisions of Cayman Islands law, and in
accordance with the terms of Section 5.3 of the Deposit Agreement, the
Depositary shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in
which such vote is cast or the effect of any such vote, provided that the
Depositary has exercised due care in accordance with the standards set out
in Section 5.3 of the Deposit Agreement. Notwithstanding anything else
contained herein, the Depositary shall, if so required in writing by the
Company, represent all Deposited Securities (whether or not voting
instructions have been received in respect of such Deposited Securities
from Holders as of the ADS Record Date) for the sole purpose of
establishing quorum at a meeting of shareholders.
Notwithstanding anything else contained in the Deposit Agreement or any
Receipt, the Depositary shall not have any obligation to take any action
with respect to any meeting, or solicitation of consents or proxies, of
holders of Deposited Securities if the taking of such action would violate
U.S. laws. The Company agrees to take any and all actions reasonably
necessary to enable Holders and Beneficial Owners to exercise the voting
rights relating to the Deposited Securities and to deliver to the
Depositary an opinion of U.S. counsel addressing any actions requested to
be taken if so requested by the Depositary.
There can be no assurance that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable the Holder to return voting instructions to the Depositary in a
timely manner
(16) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, cancellation, 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
otherwise is a party, any securities which shall be received by the
Depositary or a Custodian in exchange for, or in conversion of or
replacement or otherwise in respect of, such Deposited Securities shall, to
the extent permitted by law, be treated as new Deposited Securities under
the Deposit Agreement, and the Receipts shall, subject to the provisions of
the Deposit Agreement and applicable law, evidence ADSs representing the
right to receive such additional securities. Alternatively, the Depositary
may, with the Company's approval, and shall, if the Company shall so
request, subject to the terms of the Deposit Agreement and receipt of
satisfactory documentation contemplated by the Deposit Agreement, execute
and deliver additional Receipts as in the case of a stock dividend on the
Shares, or call for the surrender of outstanding Receipts to be exchanged
for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this form of Receipt
specifically describing such new Deposited Securities and/or corporate
change. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, and shall if the Company
requests, subject to receipt of satisfactory legal documentation
contemplated in the Deposit Agreement, sell such securities at public or
private sale, at such place or
B-6
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of fees and charges of, and expenses incurred
by, the Depositary and taxes) for the account of the Holders otherwise
entitled to such securities and distribute the net proceeds so allocated to
the extent practicable as in the case of a distribution received in cash
pursuant to the Deposit Agreement. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make
such securities available to Holders in general or any Holder in
particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
(17) Exoneration. Neither the Depositary, the Custodian or the Company shall be
obligated to do or perform any act which is inconsistent with the
provisions of the Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling
persons or agents shall be prevented or forbidden from, or subjected to any
civil or criminal penalty or restraint on account of, or delayed in, doing
or performing any act or thing required by the terms of the Deposit
Agreement and this Receipt, by reason of any provision of any present or
future law or regulation of the United States, the Cayman Islands or any
other country, or of any other governmental authority or regulatory
authority or stock exchange, or by reason of any provision, present or
future of the Articles of Association or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control, (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage,
strikes, civil unrest, acts of terrorism, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or
failure to exercise, any discretion provided for in the Deposit Agreement
or in the Articles of Association or provisions of or governing Deposited
Securities, (iii) for any action or inaction of the Depositary, the
Custodian or the Company or their respective controlling persons or agents
in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or
information, (iv) for any inability by a Holder or Beneficial Owner 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 Holders of ADS or (v) for
any consequential or punitive damages for any breach of the terms of the
Deposit Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely
and shall be protected in acting upon any written notice, request, opinion
or other document believed by it to be genuine and to have been signed or
presented by the proper party or parties. No disclaimer of liability under
the Securities Act is intended by any provision of the Deposit Agreement.
(18) Standard of Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under
the Deposit Agreement or the Receipts to Holders or Beneficial Owners or
other persons, except in accordance with Section 5.8 of the Deposit
Agreement, provided, that the Company and the Depositary and their
respective agents agree to perform their respective obligations
specifically set forth in the Deposit Agreement without gross negligence or
bad faith. The Depositary and its agents shall not be liable for any
failure to carry
B-7
out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that
any such action or omission is in good faith and in accordance with the
terms of the Deposit Agreement. The Depositary shall not incur any
liability for any failure to determine that any distribution or action may
be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated
with acquiring an interest in the Deposited Securities, for the validity or
worth of the Deposited Securities or for any tax consequences that may
result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon
the terms of the Deposit Agreement or for the failure or timeliness of any
notice from the Company. In no event shall the Depositary or any of its
Agents be liable for any indirect, special, punitive or consequential
damage.
(19) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the
Company, such resignation to be effective on the earlier of (i) the 90th
day after delivery thereof to the Company, or (ii) upon the appointment of
a successor depositary and its acceptance of such appointment as provided
in the Deposit Agreement, save that, any amounts, fees, costs or expenses
owed to the Depositary under the Deposit Agreement or in accordance with
any other agreements otherwise agreed in writing between the Company and
the Depositary from time to time shall be paid to the Depositary prior to
such resignation. The Company shall use reasonable efforts to appoint such
successor depositary, and give notice to the Depositary of such
appointment, not more than 90 days after delivery by the Depositary of
written notice of resignation as provided in the Deposit Agreement. The
Depositary may at any time be removed by the Company by written notice of
such removal which notice shall be effective on the later of (i) the 90th
day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement save that, any amounts, fees, costs or
expenses owed to the Depositary under the Deposit Agreement or in
accordance with any other agreements otherwise agreed in writing between
the Company and the Depositary from time to time shall be paid to the
Depositary prior to such removal. In case at any time the Depositary acting
hereunder shall resign or be removed, the Company shall use its best
efforts to appoint a successor depositary which shall be a bank or trust
company having an office in the Borough of Manhattan, the City of New York.
Every successor depositary shall execute and deliver to its predecessor and
to the Company an instrument in writing accepting its appointment
hereunder, and thereupon such successor depositary, without any further act
or deed, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor. The predecessor depositary, upon payment of
all sums due it and on the written request of the Company, shall (i)
execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in the
Deposit Agreement), (ii) duly assign, transfer and deliver all right, title
and interest to the Deposited Securities to such successor, and (iii)
deliver to such successor a list of the Holders of all outstanding Receipts
and such other information relating to Receipts and Holders thereof as the
successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders.
B-8
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.
(20) Amendment/Supplement. Subject to the terms and conditions of this Article
(20), and applicable law, this Receipt and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented
by written agreement between the Company and the Depositary in any respect
which they may deem necessary or desirable without the consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall
impose or increase any fees or charges (other than the charges of the
Depositary in connection with foreign exchange control regulations, and
taxes and other governmental charges, delivery and other such expenses), or
which shall otherwise materially prejudice any substantial existing right
of Holders or Beneficial Owners, shall not, however, become effective as to
outstanding Receipts until 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts.
Notice of any amendment to the Deposit Agreement or any Receipt 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 and Beneficial
Owners to retrieve or receive the text of such amendment (i.e., upon
retrieval from the Commission's, the Depositary's or the Company's website
or upon request from the Depositary). The parties hereto agree that 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 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 or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS, to consent and agree to such amendment or supplement and to be bound
by the Deposit Agreement as amended or supplemented thereby. In no event
shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body
should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement
and the Receipt 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 with such laws, or rules or regulations.
(21) Termination. The Depositary shall, at any time at the written direction of
the Company, terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for such termination provided
that, the Depositary shall be reimbursed for any amounts, fees, costs or
expenses owed to it in accordance with the terms of the Deposit Agreement
and in accordance with any other agreements as otherwise agreed
B-9
in writing between the Company and the Depositary from time to time, prior
to such termination shall take effect. If 90 days shall have expired after
(i) the Depositary shall have delivered to the Company a written notice of
its election to resign, or (ii) the Company shall have delivered to the
Depositary a written notice of the removal of the Depositary, and in either
case a successor depositary shall not have been appointed and accepted its
appointment as provided herein and in the Deposit Agreement, the Depositary
may terminate the Deposit Agreement by mailing notice of such termination
to the Holders of all Receipts then outstanding at least 30 days prior to
the date fixed for such termination. On and after the date of termination
of the Deposit Agreement, the Holder will, upon surrender of such Holder's
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in
Article (2) and in the Deposit Agreement and subject to the conditions and
restrictions therein set forth, and upon 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 such Receipt. If any
Receipts shall remain outstanding after the date of termination of the
Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders 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 as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the
Deposit Agreement, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any
rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case
the charges of the Depositary for the surrender of a Receipt, any expenses
for the account of the Holder in accordance with the terms and conditions
of the Deposit Agreement and any applicable taxes or governmental charges
or assessments). At any time after the expiration of one year from the date
of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested
the net proceeds of any such sale, together with any other cash then held
by it hereunder, in an unsegregated account, without liability for interest
for the pro rata benefit of the Holders of Receipts whose Receipts have not
theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement with respect
to the Receipts and the Shares, Deposited Securities and ADSs, except to
account for such net proceeds and other cash (after deducting, or charging,
as the case may be, in each case the charges of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from
all obligations under the Deposit Agreement except as set forth in the
Deposit Agreement.
(22) Compliance with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt or the Deposit Agreement to
the contrary, the withdrawal or delivery of Deposited Securities will not
be suspended by the Company or the Depositary except as would be permitted
by Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
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(23) Certain Rights of the Depositary; Limitations. Subject to the further terms
and provisions of this Article (23), 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. The Depositary
may issue ADSs against evidence of rights to receive Shares from the
Company, any agent of the Company or any custodian, registrar, transfer
agent, clearing agency or other entity involved in ownership or transaction
records in respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares furnished on
behalf of the holder thereof. 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 pursuant to Section 2.3 of
the Deposit Agreement (a "Pre-Release Transaction") and (ii) deliver Shares
prior to the receipt and cancellation of ADSs pursuant to Section 2.6 of
the Deposit Agreement, including ADSs which may have been issued under (i)
above but for which Shares may not have been received. The Depositary may
receive ADSs in lieu of Shares under (i) above. Each such Pre-Release
Transaction will be (a) accompanied by or subject to a written agreement
whereby the person or entity (the "Applicant") to whom ADSs are to be
delivered (1) represents that at the time of the Pre-Release Transaction
the Applicant or its customer owns the Shares that are to be delivered by
the Applicant under such Pre-Release Transaction, (2) agrees to indicate
the Depositary as owner of such Shares in its records and to hold such
Shares in trust for the Depositary until such Shares are delivered to the
Depositary or the Custodian, (3) unconditionally guarantees to deliver to
the Depositary or the Custodian, as applicable, such Shares and (4) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate; (b) at all times fully collateralized with cash, U.S.
government securities or such other collateral as the Depositary deems
appropriate; (c) terminable by the Depositary on not more than five (5)
business days' notice; and (d) subject to such further indemnities and
credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs involved in such Pre-Release Transactions
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, including (i) due to a decrease in
the aggregate number of ADSs outstanding that causes existing Pre-Release
Transactions to temporarily exceed the limit stated above or (ii) where
otherwise required by market conditions. The Depositary may also set limits
with respect to the number of ADSs involved in Pre-Release Transactions
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 earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
(24) Ownership Restrictions. Holders and Beneficial Owners shall comply with any
limitations on ownership of Shares under the Articles of Association of the
Company or applicable Cayman Islands law as if they held the number of
Shares their American Depositary Shares represent. The Company shall inform
the Holders, Beneficial Owners and the Depositary of any such ownership
restrictions in place from time to time.
B-11
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name
-----------------------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his/her full title in
such capacity and proper evidence of
authority to act in such capacity, if not
on file with the Depositary, must be
forwarded with this Receipt.
SIGNATURE GUARANTEED
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