(▇▇▇▇▇▇▇▇ CHANCE LOGO) Exhibit 4.3
(CHINESE CHARACTERS)
DATED AS OF [___] ▇▇▇▇
▇▇▇▇▇ NEPSTAR CHAIN DRUGSTORE LTD.
AND
JPMORGAN CHASE BANK, N.A.,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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DEPOSIT AGREEMENT
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CONTENTS
PAGE
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PARTIES.................................................................. 1
RECITALS................................................................. 1
Section 1. Certain Definitions.......................................... 1
(a) ADR Register............................................. 1
(b) ADRs; Direct Registration ADRs........................... 1
(c) ADS...................................................... 1
(d) Custodian................................................ 1
(e) Deliver, execute, issue et al............................ 1
(f) Delivery Order........................................... 1
(g) Deposited Securities..................................... 1
(h) Direct Registration System............................... 1
(i) Holder................................................... 2
(j) Securities Act of 1933................................... 2
(k) Securities Exchange Act of 1934.......................... 2
(l) Shares................................................... 2
(m) Transfer Office.......................................... 2
(n) Withdrawal Order......................................... 2
Section 2. ADRs......................................................... 2
Section 3. Deposit of Shares............................................ 2
Section 4. Issue of ADRs................................................ 3
Section 5. Distributions on Deposited Securities........................ 3
Section 6. Withdrawal of Deposited Securities........................... 3
Section 7. Substitution of ADRs......................................... 4
Section 8. Cancellation and Destruction of ADRs......................... 4
Section 9. The Custodian................................................ 4
Section 10. Co-Registrars and Co-Transfer Agents......................... 5
Section 11. Lists of Holders............................................. 5
Section 12. Depositary's Agents.......................................... 5
Section 13. Successor Depositary......................................... 5
Section 14. Reports...................................................... 6
Section 15. Additional Shares............................................ 6
Section 16. Indemnification.............................................. 6
Section 17. Notices...................................................... 7
Section 18. Miscellaneous................................................ 7
Section 19. Consent to Jurisdiction...................................... 8
TESTIMONIUM.............................................................. 10
SIGNATURES............................................................... 10
EXHIBIT A
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FORM OF FACE OF ADR...................................................... A-1
Introductory Paragraph.............................................. A-1
(1) Issuance of ADRs............................................... A-1
(2) Withdrawal of Deposited Securities............................. A-2
(3) Transfers of ADRs.............................................. A-3
(4) Certain Limitations............................................ A-3
(5) Taxes.......................................................... A-4
(6) Disclosure of Interests........................................ A-4
(7) Charges of Depositary.......................................... A-5
(8) Available Information.......................................... A-6
(9) Execution...................................................... A-6
Signature of Depositary.................................................. A7
Address of Depositary's Office........................................... A7
FORM OF REVERSE OF ADR................................................... A-8
(10) Distributions on Deposited Securities.......................... A-8
(11) Record Dates................................................... A-9
(12) Voting of Deposited Securities................................. A-9
(13) Changes Affecting Deposited Securities......................... A-9
(14) Exoneration.................................................... A-10
(15) Resignation and Removal of Depositary; the Custodian........... A-11
(16) Amendment...................................................... A-11
(17) Termination.................................................... A-11
(18) Appointment.................................................... A-12
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DEPOSIT AGREEMENT dated as of [_____] 2007 (the "Deposit Agreement") among CHINA
NEPSTAR CHAIN DRUGSTORE LTD. and its successors (the "Company"), JPMORGAN CHASE
BANK, N.A., as depositary hereunder (the "Depositary"), and all holders from
time to time of American Depositary Receipts issued hereunder ("ADRs")
evidencing American Depositary Shares ("ADSs") representing deposited Shares
(defined below). The Company hereby appoints the Depositary as depositary for
the Deposited Securities and hereby authorizes and directs the Depositary to act
in accordance with the terms set forth in this Deposit Agreement. All
capitalized terms used herein have the meanings ascribed to them in Section 1 or
elsewhere in this Deposit Agreement. The parties hereto agree as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form, and the terms and
conditions governing the Direct Registration ADRs (as hereinafter defined),
shall be substantially in the form of Exhibit A annexed hereto (the "form
of ADR"). The term "Direct Registration ADR" means an ADR, the ownership of
which is recorded on the Direct Registration System. References to "ADRs"
shall include certificated ADRs and Direct Registration ADRs, unless the
context otherwise requires. The form of ADR is hereby incorporated herein
and made a part hereof; the provisions of the form of ADR shall be binding
upon the parties hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced by an
ADR represents the right to receive [_____] Share and a pro rata share in
any other Deposited Securities.
(d) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(e) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers
in the Direct Registration System, and, when used with respect to ADRs in
physical certificated form, shall refer to the physical delivery,
execution, issuance, registration, surrender, transfer or cancellation of
certificates representing the ADRs.
(f) "Delivery Order" is defined in Section 3.
(g) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares,
securities, property and cash at such time held by the Depositary or the
Custodian in respect or in lieu of such deposited Shares and other Shares,
securities, property and cash.
(h) "Direct Registration System" means the system for the uncertificated
registration of ownership of securities established by The Depository Trust
Company ("DTC") and utilized by the Depositary pursuant to which the
Depositary may record the ownership of ADRs without the issuance of a
certificate, which ownership shall be evidenced by
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periodic statements issued by the Depositary to the Holders entitled
thereto. For purposes hereof, the Direct Registration System shall include
access to the Profile Modification System maintained by DTC which provides
for automated transfer of ownership between DTC and the Depositary.
(i) "Holder" means the person or persons in whose name an ADR is registered on
the ADR Register.
(j) "Securities Act of 1933" means the United States Securities Act of 1933, as
from time to time amended.
(k) "Securities Exchange Act of 1934" means the United States Securities
Exchange Act of 1934, as from time to time amended.
(l) "Shares" mean the ordinary shares of the Company, and shall include the
rights to receive Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(n) "Withdrawal Order" is defined in Section 6.
2. ADRS.
(a) ADRs in certificated form shall be engraved, printed or otherwise
reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at the
request of the Company typewritten and photocopied on plain or safety
paper, and shall be substantially in the form set forth in the form of ADR,
with such changes as may be required by the Depositary or the Company to
comply with their obligations hereunder, any applicable law, regulation or
usage or to indicate any special limitations or restrictions to which any
particular ADRs are subject. ADRs may be issued in denominations of any
number of ADSs. ADRs in certificated form shall be executed by the
Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. ADRs in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized
officer of the Depositary shall bind the Depositary, notwithstanding that
such officer has ceased to hold such office prior to the delivery of such
ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless certificated ADRs are specifically
requested by the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are
Direct Registration ADRs or certificated ADRs.
3. Deposit of Shares.
In connection with the deposit of Shares hereunder, the Depositary or the
Custodian may require the following in form satisfactory to it: (a) a
written order directing the Depositary to issue to, or upon the written
order of, the person or persons designated in such order a Direct
Registration ADR or ADRs evidencing the number of ADSs
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representing such deposited Shares (a "Delivery Order"); (b) proper
endorsements or duly executed instruments of transfer in respect of such
deposited Shares; (c) instruments assigning to the Custodian or its nominee
any distribution on or in respect of such deposited Shares or indemnity
therefor; and (d) proxies entitling the Custodian to vote such deposited
Shares. As soon as practicable after the Custodian receives Deposited
Securities pursuant to any such deposit or pursuant to paragraph (10) or
(13) of the form of ADR, the Custodian shall present such Deposited
Securities for registration of transfer into the name of the Custodian or
its nominee, to the extent such registration is practicable, at the cost
and expense of the person making such deposit (or for whose benefit such
deposit is made) and shall obtain evidence satisfactory to it of such
registration. Deposited Securities shall be held by the Custodian for the
account and to the order of the Depositary at such place or places and in
such manner as the Depositary shall determine. Deposited Securities may be
delivered by the Custodian to any person only under the circumstances
expressly contemplated in this Deposit Agreement. To the extent that the
provisions of or governing the Shares make delivery of certificates
therefor impracticable, Shares may be deposited hereunder by such delivery
thereof as the Depositary or the Custodian may reasonably accept,
including, without limitation, by causing them to be credited to an account
maintained by the Custodian for such purpose with the Company or an
accredited intermediary, such as a bank, acting as a registrar for the
Shares, together with delivery of the documents, payments and Delivery
Order referred to herein to the Custodian or the Depositary.
4. Issue of ADRs.
After any such deposit of Shares, the Custodian shall notify the Depositary
of such deposit and of the information contained in any related Delivery
Order by letter, first class airmail postage prepaid, or, at the request,
risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice,
an ADR or ADRs registered as requested and evidencing the aggregate ADSs to
which such person is entitled.
5. Distributions on Deposited Securities.
To the extent that the Depositary determines in its reasonable discretion
that any distribution pursuant to paragraph (10) of the form of ADR is not
practicable with respect to any Holder, the Depositary may make such
distribution as it so deems practicable, including the distribution of
foreign currency, securities or property (or appropriate documents
evidencing the right to receive foreign currency, securities or property)
or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities.
In connection with any surrender of an ADR for withdrawal of the Deposited
Securities represented by the ADSs evidenced thereby, the Depositary may
require proper endorsement in blank of such ADR (or duly executed
instruments of transfer thereof in blank) and the Holder's written order
directing the Depositary to cause the Deposited Securities represented by
the ADSs evidenced by such ADR to be withdrawn and
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delivered to, or upon the written order of, any person designated in such
order (a "Withdrawal Order"). Directions from the Depositary to the
Custodian to deliver Deposited Securities shall be given by letter, first
class airmail postage prepaid, or, at the request, risk and expense of the
Holder, by cable, telex or facsimile transmission. Delivery of Deposited
Securities may be made by the delivery of certificates (which, if required
by law shall be properly endorsed or accompanied by properly executed
instruments of transfer or, if such certificates may be registered,
registered in the name of such Holder or as ordered by such Holder in any
Withdrawal Order) or by such other means as the Depositary may deem
practicable, including, without limitation, by transfer of record ownership
thereof to an account designated in the Withdrawal Order maintained either
by the Company or an accredited intermediary, such as a bank, acting as a
registrar for the Deposited Securities.
7. Substitution of ADRs.
The Depositary shall execute and deliver a new Direct Registration ADR in
exchange and substitution for any mutilated certificated ADR upon
cancellation thereof or in lieu of and in substitution for such destroyed,
lost or stolen certificated ADR, unless the Depositary has notice that such
ADR has been acquired by a bona fide purchaser, upon the Holder thereof
filing with the Depositary a request for such execution and delivery and a
sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
8. Cancellation and Destruction of ADRs.
All ADRs surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy ADRs in certificated
form so cancelled in accordance with its customary practices. The
Depositary agrees to maintain or cause its agents to maintain records of
all ADRs surrendered and Deposited Securities withdrawn under Section 6
hereof and paragraph (2) of the form of ADR, substitute ADRs delivered
under Section 7 hereof, and cancelled or destroyed ADRs under this Section
8, in keeping with the procedures ordinarily followed by stock transfer
agents located in the City of New York or as otherwise required by the laws
or regulations governing the Depositary.
9. The Custodian.
Any Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary shall be
responsible for the compliance by the Custodian with any applicable
provisions of the Deposit Agreement. The Depositary may from time to time
appoint one or more agents to act for it as Custodian hereunder. Each
Custodian so appointed (other than JPMorgan Chase Bank, N.A.) shall give
written notice to the Company and the Depositary accepting such appointment
and agreeing to be bound by the applicable terms hereof. Any Custodian may
resign from its duties hereunder by at least 30 days written notice to the
Depositary. The Depositary may discharge any Custodian at any time upon
notice to the Custodian being discharged. Any Custodian ceasing to act
hereunder as Custodian shall deliver, upon the instruction of the
Depositary, all Deposited Securities held by it to a Custodian continuing
to act. If upon the effectiveness of such resignation there would be no
Custodian acting hereunder, the Depositary shall, promptly after receiving
such notice,
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appoint a substitute custodian or custodians, each of which shall
thereafter be a Custodian hereunder.
10. Co-Registrars and Co-Transfer Agents.
The Depositary may appoint and remove (i) co-registrars to register ADRs
and transfers, combinations and split-ups of ADRs and to countersign ADRs
in accordance with the terms of any such appointment and (ii) co-transfer
agents for the purpose of effecting transfers, combinations and split-ups
of ADRs at designated transfer offices in addition to the Transfer Office
on behalf of the Depositary. Each co-registrar or co-transfer agent (other
than JPMorgan Chase Bank, N.A.) shall give notice in writing to the Company
and the Depositary accepting such appointment and agreeing to be bound by
the applicable terms of this Deposit Agreement.
11. Lists of Holders.
The Company shall have the right to inspect transfer records of the
Depositary and its agents and the ADR Register, take copies thereof and
require the Depositary and its agents to supply copies of such portions of
such records as the Company may request. The Depositary or its agent shall
furnish to the Company promptly upon the written request of the Company, a
list of the names, addresses and holdings of ADSs by all Holders as of a
date within seven days of the Depositary's receipt of such request.
12. Depositary's Agents.
The Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall
notify the Company of such appointment and shall remain responsible for the
performance of such obligations as if no agent were appointed.
13. Successor Depositary.
The Depositary may at any time resign as Depositary hereunder by at least
60 days prior written notice of its election so to do delivered to the
Company, such resignation to take effect upon the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided. The Depositary may at any time be removed by the Company by
providing no less than 60 days prior written notice of such removal to the
Depositary. Notwithstanding anything to the contrary contained herein, in
case at any time the Depositary acting hereunder shall resign or be
removed, it shall continue to act as Depositary for the purpose of
terminating this Deposit Agreement pursuant to paragraph (17) of the form
of ADR; provided that no such termination shall occur until such time as
the Company has appointed a new Depositary and such new Depositary has
accepted such position. In the context of any resignation or removal, upon
payment of all sums due the Depositary, the Depositary shall provide the
Company with a copy of its Holder records and make available to or upon the
order of the Company all of the Deposited Securities held hereunder and
shall cooperate with the new Depositary in this regard. Any bank or trust
company into or with which the Depositary may be merged or consolidated, or
to which the Depositary shall transfer substantially all its American
depositary receipt business, shall be the successor of the Depositary
without the execution or filing of any document or any further act.
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14. Reports.
On or before the first date on which the Company makes any communication
available to holders of Deposited Securities or any securities regulatory
authority or stock exchange, by publication or otherwise, the Company shall
transmit to the Depositary a copy thereof in English or with an English
translation or summary. The Company has delivered to the Depositary, the
Custodian and any Transfer Office, a copy of all provisions of or governing
the Shares and any other Deposited Securities issued by the Company or any
affiliate of the Company and, promptly upon any change thereto, the Company
shall deliver to the Depositary, the Custodian and any Transfer Office, a
copy (in English or with an English translation) of such provisions as so
changed. The Depositary and its agents may rely upon the Company's delivery
thereof for all purposes of this Deposit Agreement.
15. Additional Shares.
Neither the Company nor any company controlling, controlled by or under
common control with the Company shall issue additional Shares, rights to
subscribe for Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for any such securities or shall deposit any
Shares under this Deposit Agreement, except under circumstances complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable efforts to comply with written instructions of the Company not
to accept for deposit hereunder any Shares 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
securities laws in the United States.
16. Indemnification.
The Company shall indemnify, defend and save harmless each of the
Depositary and its agents against any loss, liability or expense (including
reasonable fees and expenses of counsel) which may arise out of acts
performed or omitted, in connection with the provisions of this Deposit
Agreement and of the ADRs, as the same may be amended, modified or
supplemented from time to time in accordance herewith (i) by either the
Depositary or its agents or their respective directors, employees, agents
and affiliates, except, subject to the penultimate paragraph of this
Section 16, for any liability or expense directly arising out of the
negligence or bad faith of the Depositary or its agents acting hereunder,
or (ii) by the Company or any of its directors, employees, agents or
affiliates.
The indemnities set forth in the preceding paragraph shall also apply to
any liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or
sale of ADSs, except to the extent any such liability or expense arises out
of (i) information relating to the Depositary or its agents (other than the
Company), as applicable, furnished in writing by the Depositary and not
changed or altered by the Company expressly for use in any of the foregoing
documents or (ii) if such information is provided, the failure to state a
material fact necessary to make the information provided not misleading.
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Except as provided in the next succeeding paragraph, the Depositary shall
indemnify, defend and save harmless the Company against any loss, liability
or expense (including reasonable fees and expenses of counsel) incurred by
the Company in respect of this Deposit Agreement to the extent such loss,
liability or expense is due to the negligence or bad faith of the
Depositary or its agents acting hereunder.
Notwithstanding any other provision of this Deposit Agreement or the form
of ADR to the contrary, neither the Company nor the Depositary, nor any of
their agents, shall be liable to the other for any indirect, special,
punitive or consequential damages (collectively "Special Damages") except
(i) to the extent such Special Damages arise from the gross negligence or
willful misconduct of the party from whom indemnification is sought or (ii)
to the extent Special Damages arise from or out of a claim brought by a
third party (including, without limitation, Holders) against the Depositary
or its agents, except to the extent such Special Damages arise out of the
gross negligence or willful misconduct of the party seeking indemnification
hereunder.
The obligations set forth in this Section 16 shall survive the termination
of this Deposit Agreement and the succession or substitution of any
indemnified person.
17. Notices.
Notice to any Holder shall be deemed given when first mailed, first class
postage prepaid, to the address of such Holder on the ADR Register or
received by such Holder. Notice to the Depositary or the Company shall be
deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other
by written notice:
(a) JPMorgan Chase Bank, N.A.
Four ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ADR Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) China Neptstar Chain Drugstore Ltd.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ District, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
Attention: Chief Financial Officer
Fax: ▇(▇▇) ▇▇▇-▇▇▇▇-▇▇▇▇
18. Miscellaneous.
This Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and
shall not give any legal or equitable right, remedy or claim whatsoever to
any other person. The Holders and owners of ADRs from time to time shall be
parties to this Deposit Agreement and shall be bound by all of the
provisions hereof. If any such provision is invalid, illegal or
unenforceable in any respect, the remaining provisions shall in no way be
affected
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thereby. This Deposit Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
shall constitute one instrument.
19. Governing Law.
The Deposit Agreement and the ADRs shall be interpreted and all rights
hereunder and thereunder and provisions hereof and thereof shall be
governed by the law of the State of New York.
20. Consent to Jurisdiction.
The Company irrevocably agrees that any legal suit, action or proceeding
against the Company brought by the Depositary or any Holder, arising out of
or based upon this Deposit Agreement or the transactions contemplated
hereby, may be instituted in any state or federal court in New York, New
York, and, to the fullest extent permitted by law, irrevocably waives any
objection which it may now or hereafter have to the laying of venue of any
such proceeding, and irrevocably submits to the non-exclusive jurisdiction
of such courts in any such suit, action or proceeding. The Company has
appointed CT Corporation System, as its authorized agent (the "Authorized
Agent") upon which process may be served in any such action arising out of
or based on this Deposit Agreement or the transactions contemplated hereby
which may be instituted in any state or federal court in New York, New York
by the Depositary or any Holder, and, to the fullest extent permitted by
law, waives any other requirements of or objections to personal
jurisdiction with respect thereto. The Company represents and warrants that
the Authorized Agent has agreed to act as said agent for service of
process, and the Company agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect as aforesaid. Service of
process upon the Authorized Agent and written notice of such service to the
Company shall be deemed, in every respect, effective service of process
upon the Company. If, for any reason, the Authorized Agent named above or
its successor shall no longer serve as agent of the Company to receive
service of process in New York, the Company shall promptly appoint a
successor acceptable to the Depositary, so as to serve and will promptly
advise the Depositary thereof. In the event the Company fails to continue
such designation and appointment in full force and effect, the Company
hereby waives personal service of process upon it and consents that any
such service of process may be made by certified or registered mail, return
receipt requested, directed to the Company at its address last specified
for notices hereunder, and service so made shall be deemed completed five
(5) days after the same shall have been so mailed. Notwithstanding the
foregoing, any action based on this Agreement may be instituted by the
Depositary or any Holder in any competent court in the Cayman Islands or
the People's Republic of China.
To the extent that the Company or any of its properties, assets or revenues
may have or may hereafter be entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any
respect thereof, from setoff or counterclaim, from the jurisdiction of any
court, from service of process, from attachment upon or prior to judgment,
from attachment in aid of execution or judgment, or from execution of
judgment, or other legal process or proceeding for the giving of any relief
or for the
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enforcement of any judgment, in any jurisdiction in which proceedings may
at any time be commenced, with respect to its obligations, liabilities or
other matter under or arising out of or in connection with the Shares or
Deposited Securities, the ADSs, the ADRs or this Agreement, the Company, to
the fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such relief and enforcement.
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IN WITNESS WHEREOF, CHINA NEPSTAR CHAIN DRUGSTORE LTD. and JPMORGAN CHASE BANK,
N.A. have duly executed this Deposit Agreement as of the day and year first
above set forth and all holders of ADRs shall become parties hereto upon
acceptance by them of ADRs issued in accordance with the terms hereof.
CHINA NEPSTAR CHAIN DRUGSTORE LTD.
By:
------------------------------------
Name:
Title:
JPMORGAN CHASE BANK, N.A.
By:
------------------------------------
Name:
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
__________
Number
No. of ADSs:
_____________________
Each ADS represents
[_____] Share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
CHINA NEPSTAR CHAIN DRUGSTORE LTD.
(Incorporated under the laws of the Cayman Islands)
JPMORGAN CHASE BANK, N.A., a national banking association organized under the
laws of the United States of America, as depositary hereunder (the
"Depositary"), hereby certifies that is the registered owner (a "Holder") of
__________ American Depositary Shares ("ADSs"), each (subject to paragraph (13))
representing [EXCHANGE] ordinary share (including the rights to receive Shares
described in paragraph (1), "Shares" and, together with any other securities,
cash or property from time to time held by the Depositary in respect or in lieu
of deposited Shares, the "Deposited Securities"), of CHINA NEPSTAR CHAIN
DRUGSTORE LTD., a corporation organized under the laws of the Cayman Islands
(the "Company"), deposited under the Deposit Agreement dated as of [DATE], 2007
(as amended from time to time, the "Deposit Agreement") among the Company, the
Depositary and all Holders from time to time of American Depositary Receipts
issued thereunder ("ADRs"), each of whom by accepting an ADR becomes a party
thereto. The Deposit Agreement and this ADR (which includes the provisions set
forth on the reverse hereof) shall be governed by and construed in accordance
with the laws of the State of New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs for
delivery at the Transfer
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Office (defined in paragraph (3)) only against deposit with the Custodian
of: (a) Shares in form reasonably satisfactory to the Custodian; (b) rights
to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions;
or, (c) other rights to receive Shares (until such Shares are actually
deposited pursuant to (a) or (b) above, "Pre-released ADRs") only if (i)
Pre-released ADRs are fully collateralized (marked to market daily) with
cash or U.S. government securities held by the Depositary for the benefit
of Holders (but such collateral shall not constitute "Deposited
Securities"), (ii) each recipient of Pre-released ADRs represents and
agrees in writing with the Depositary that such recipient (a) owns such
Shares, (b) assigns all beneficial right, title and interest therein to the
Depositary, (c) holds such Shares for the account of the Depositary, (d)
will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (e) will not take any action that is
inconsistent with the transfer of beneficial ownership to the Depositary,
and (iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those evidenced by Pre-released ADRs) and (vi) Pre-released ADRs
are terminable on not more than five (5) business days notice, provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may retain
for its own account any earnings on collateral for Pre-released ADRs and
its charges for issuance thereof. At the request, risk and expense of the
person depositing Shares, the Depositary may accept deposits for forwarding
to the Custodian and may deliver ADRs at a place other than its office.
Every person depositing Shares under the Deposit Agreement represents and
warrants that such Shares are validly issued and outstanding, fully paid,
nonassessable and free of pre-emptive rights, that the person making such
deposit is duly authorized so to do and that such Shares (A) are not
"restricted securities" as such term is defined in Rule 144 under the
Securities Act of 1933 unless at the time of deposit they may be freely
transferred in accordance with Rule 144(k) and may otherwise be offered and
sold freely in the United States or (B) have been registered under the
Securities Act of 1933. Such representations and warranties shall survive
the deposit of Shares and issuance of ADRs. The Depositary will not
knowingly accept for deposit under the Deposit Agreement any Shares
required to be registered under the Securities Act of 1933 and not so
registered; the Depositary may refuse to accept for such deposit any Shares
identified by the Company in order to facilitate the Company's compliance
with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5), upon
surrender of (i) a certificated ADR in form satisfactory to the Depositary
at the Transfer Office or (ii) proper instructions and documentation in the
case of a Direct Registration ADR, the Holder hereof is entitled to
delivery at the Custodian's office of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and
expense of the Holder hereof, the Depositary may deliver such Deposited
Securities at such other place as may have been requested by the Holder.
Notwithstanding any other provision of the Deposit Agreement or this ADR,
the withdrawal of Deposited Securities may be restricted only for the
reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be amended from time to time) under the Securities Act of
1933.
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(3) Transfers of ADRs. The Depositary or its agent will keep, at a designated
transfer office in the Borough of Manhattan, The City of New York (the
"Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs,
and, in the case of Direct Registration ADRs, shall include the Direct
Registration System, which at all reasonable times will be open for
inspection by Holders and the Company for the purpose of communicating with
Holders in the interest of the business of the Company or a matter relating
to the Deposit Agreement and (b) facilities for the delivery and receipt of
ADRs. The term ADR Register includes the Direct Registration System. Title
to this ADR (and to the Deposited Securities represented by the ADSs
evidenced hereby), when properly endorsed (in the case of ADRs in
certificated form) or upon delivery to the Depositary of proper instruments
of transfer, is transferable by delivery with the same effect as in the
case of negotiable instruments under the laws of the State of New York;
provided that the Depositary, notwithstanding any notice to the contrary,
may treat the person in whose name this ADR is registered on the ADR
Register as the absolute owner hereof for all purposes and neither the
Depositary nor the Company will have any obligation or be subject to any
liability under the Deposit Agreement to any holder of an ADR, unless such
holder is the Holder thereof. Subject to paragraphs (4) and (5), this ADR
is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the aggregate number of
ADSs surrendered for split-up or combination, by the Holder hereof or by
duly authorized attorney upon surrender of this ADR at the Transfer Office
properly endorsed (in the case of ADRs in certificated form) or upon
delivery to the Depositary of proper instruments of transfer and duly
stamped as may be required by applicable law; provided that the Depositary
may close the ADR Register at any time or from time to time when deemed
expedient by it or requested by the Company. At the request of a Holder,
the Depositary shall, for the purpose of substituting a certificated ADR
with a Direct Registration ADR, or vice versa, execute and deliver a
certificated ADR or a Direct Registration ADR, as the case may be, for any
authorized number of ADSs requested, evidencing the same aggregate number
of ADSs as those evidenced by the certificated ADR or Direct Registration
ADR, as the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any
distribution in respect thereof, or, subject to the last sentence of
paragraph (2), the withdrawal of any Deposited Securities, and from time to
time in the case of clause (b)(ii) of this paragraph (4), the Company, the
Depositary or the Custodian may require: (a) payment with respect thereto
of (i) any stock transfer or other tax or other governmental charge, (ii)
any stock transfer or registration fees in effect for the registration of
transfers of Shares or other Deposited Securities upon any applicable
register and (iii) any applicable charges as provided in paragraph (7) of
this ADR; (b) the production of proof satisfactory to it of (i) the
identity of any signatory and genuineness of any signature and (ii) such
other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of
any securities, compliance with applicable law, regulations, provisions of
or governing Deposited Securities and terms of the Deposit Agreement and
this ADR, as it may deem necessary or proper; and (c) compliance with such
regulations as the Depositary may establish consistent with the Deposit
Agreement.
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The issuance of ADRs, the acceptance of deposits of Shares, the
registration, registration of transfer, split-up or combination of ADRs or,
subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may be suspended, generally or in particular instances, when the
ADR Register or any register for Deposited Securities is closed or when any
such action is deemed advisable by the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable by or
on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid
by the Holder hereof to the Depositary. The Depositary may refuse to effect
any registration, registration of transfer, split-up or combination hereof
or, subject to the last sentence of paragraph (2), any withdrawal of such
Deposited Securities until such payment is made. The Depositary may also
deduct from any distributions on or in respect of Deposited Securities, or
may sell by public or private sale for the account of the Holder hereof any
part or all of such Deposited Securities (after attempting by reasonable
means to notify the Holder hereof prior to such sale), and may apply such
deduction or the proceeds of any such sale in payment of such tax or other
governmental charge, the Holder hereof remaining liable for any deficiency,
and shall reduce the number of ADSs evidenced hereby to reflect any such
sales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agency all
amounts (if any) required to be withheld and owing to such authority or
agency by the Company; and the Depositary and the Custodian will remit to
the appropriate governmental authority or agency all amounts (if any)
required to be withheld and owing to such authority or agency by the
Depositary or the Custodian. The Depositary will forward to the Company
such information from its records as the Company may reasonably request to
enable the Company to file any necessary reports with governmental
authorities or agencies. If the Depositary determines that any distribution
in property other than cash (including Shares or rights) on Deposited
Securities is subject to any tax that the Depositary or the Custodian is
obligated to withhold, the Depositary may dispose of all or a portion of
such property in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes, by public or private sale, and
the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders
entitled thereto. Each Holder of an ADR or an interest therein agrees to
indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and affiliates against, and hold
each of them harmless from, any claims by any governmental authority with
respect to taxes, additions to tax, penalties or interest arising out of
any refund of taxes, reduced rate of withholding at source or other tax
benefit obtained.
(6) Disclosure of Interests. To the extent that the provisions of or governing
any Deposited Securities may require disclosure of or impose limits on
beneficial or other ownership of Deposited Securities, other Shares and
other securities and may provide for blocking transfer, voting or other
rights to enforce such disclosure or limits, Holders and all persons
holding ADRs agree to comply with all such disclosure requirements and
ownership limitations and to comply with any reasonable Company
instructions in respect thereof. The Depositary agrees to forward, upon the
request and at the expenses
A-4
of the Company, any written request for beneficial ownership information
from the Company to the Holders, and at the Company's expense, to promptly
forward to the Company any responses received by the Depositary. The
Company reserves the right to instruct Holders to deliver their ADSs for
cancellation and withdrawal of the Deposited Securities so as to permit the
Company to deal directly with the Holder thereof as a holder of Shares and
Holders agree to comply with such instructions. The Depositary agrees to
cooperate with the Company in its efforts to inform Holders of the
Company's exercise of its rights under this paragraph and agrees to consult
with, and provide reasonable assistance without risk, liability or expense
on the part of the Depositary, to the Company on the manner or manners in
which it may enforce such rights with respect to any Holder.
(7) Charges of Depositary. For the benefit of the Depositary and/or the
Company, the Depositary may charge (i) each person to whom ADSs are issued,
including, without limitation, issuances against deposits of Shares,
issuances in respect of Share Distributions, Rights and Other Distributions
(as such terms are defined in paragraph (10)), issuances pursuant to a
stock dividend or stock split declared by the Company, or issuances
pursuant to a merger, exchange of securities or any other transaction or
event affecting the ADSs or the Deposited Securities, and (ii) each person
surrendering ADSs for withdrawal of Deposited Securities or whose ADSs are
cancelled or reduced for any other reason, U.S.$5.00 for each 100 ADSs (or
portion thereof) issued, delivered, reduced, cancelled or surrendered (as
the case may be). The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share
Distributions, Rights and Other Distributions prior to such deposit to pay
such charge. The following additional charges shall be incurred by the
Holders, by any party depositing or withdrawing Shares or by any party
surrendering ADSs, to whom ADSs are issued (including, without limitation,
issuance pursuant to a stock dividend or stock split declared by the
Company or an exchange of stock regarding the ADSs or the Deposited
Securities or a distribution of ADSs pursuant to paragraph (10)), whichever
is applicable (i) to the extent not prohibited by the rules of any stock
exchange or interdealer quotation system upon which the ADSs are listed or
traded, a fee of U.S.$0.02 or less per ADS (or portion thereof) for any
Cash distribution made pursuant to the Deposit Agreement, (ii) to the
extent not prohibited by the rules of any stock exchange or interdealer
quotation system upon which the ADSs are listed or traded, a fee per ADR or
ADRs for transfers made pursuant to paragraph (3) hereof, (iii) a fee for
the distribution or sale of securities pursuant to paragraph (10) hereof,
such fee being in an amount equal to the fee for the execution and delivery
of ADSs referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this paragraph (7) treating all
such securities as if they were Shares) but which securities or the net
cash proceeds from the sale thereof are instead distributed by the
Depositary to Holders entitled thereto, (iv) to the extent not prohibited
by the rules of the primary stock exchange upon which the ADSs are listed
or traded, a fee of U.S.$0.02 per ADS (or portion thereof) in each calendar
year for the services performed by the Depositary in administering the ADRs
(which fee shall be assessed against Holders of record as of the date or
dates set by the Depositary in accordance with paragraph (11) hereof and
not more often than once each calendar year and shall be payable at the
sole discretion of the Depositary by billing such Holders or by deducting
such charge from one or more cash
A-5
dividends or other cash distributions), provided that the Depositary may
adjust this fee with the consent of the Company, such consent not to be
unreasonably withheld; and (v) such fees and expenses as are incurred by
the Depositary (including without limitation expenses incurred on behalf of
Holders in connection with compliance with foreign exchange control
regulations or any law or regulation relating to foreign investment) in
delivery of Deposited Securities or otherwise in connection with the
Depositary's or its Custodian's compliance with applicable law, rule or
regulation. The Company will pay all other charges and expenses of the
Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary,
except (i) stock transfer or other taxes and other governmental charges
(which are payable by Holders or persons depositing Shares), (ii) cable,
telex and facsimile transmission and delivery charges incurred at the
request of persons depositing, or Holders delivering Shares, ADRs or
Deposited Securities (which are payable by such persons or Holders), (iii)
transfer or registration fees for the registration or transfer of Deposited
Securities on any applicable register in connection with the deposit or
withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees
in respect of the Shares as of the date of the Deposit Agreement), (iv)
expenses of the Depositary in connection with the conversion of foreign
currency into U.S. dollars (which are paid out of such foreign currency),
and (v) any other charge payable by any of the Depositary, any of the
Depositary's agents, including, without limitation, the Custodian, or the
agents of the Depositary's agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed
against Holders as of the record date or dates set by the Depositary and
shall be payable at the sole discretion of the Depositary by billing such
Holders or by deducting such charge from one or more cash dividends or
other cash distributions). Such charges may at any time and from time to
time be changed by agreement between the Company and the Depositary.
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the
Company, which are both received by the Custodian or its nominee as a
holder of Deposited Securities and made generally available to the holders
of Deposited Securities, are available for inspection by Holders at the
offices of the Depositary and the Custodian and at the Transfer Office. The
Depositary will distribute copies of such communications (or English
translations or summaries thereof) to Holders when furnished by the
Company. The Company furnishes the United States Securities and Exchange
Commission (the "Commission") with certain public reports and documents
required by foreign law or otherwise under Rule 12g3-2(b) under the
Securities Exchange Act of 1934. Such reports and documents may be
inspected and copied at the public reference facilities maintained by the
Commission located at the date of the Deposit Agreement at ▇▇▇ ▇ ▇▇▇▇▇▇,
▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(9) Execution. This ADR shall not be valid for any purpose unless executed by
the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
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JPMORGAN CHASE BANK, N.A., as Depositary
By
-------------------------------------
Authorized Officer
The Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
A-7
[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and (5),
to the extent practicable, the Depositary will distribute to each Holder
entitled thereto on the record date set by the Depositary therefor at such
Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by
such Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary
resulting from a cash dividend or other cash distribution or the net
proceeds of sales of any other distribution or portion thereof authorized
in this paragraph (10) ("Cash"), on an averaged or other practicable basis,
subject to (i) appropriate adjustments for taxes withheld, (ii) such
distribution being impermissible or impracticable with respect to certain
Holders, and (iii) deduction of the Depositary's expenses in (1) converting
any foreign currency to U.S. dollars by sale or in such other manner as the
Depositary may determine to the extent that it determines that such
conversion may be made on a reasonable basis, (2) transferring foreign
currency or U.S. dollars to the United States by such means as the
Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or
transfer, which is obtainable at a reasonable cost and within a reasonable
time and (4) making any sale by public or private means in any commercially
reasonable manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs
representing any Shares available to the Depositary resulting from a
dividend or free distribution on Deposited Securities consisting of Shares
(a "Share Distribution") and (ii) U.S. dollars available to it resulting
from the net proceeds of sales of Shares received in a Share Distribution,
which Shares would give rise to fractional ADSs if additional ADRs were
issued therefor, as in the case of Cash. (c) Rights. (i) Warrants or other
instruments in the discretion of the Depositary representing rights to
acquire additional ADRs in respect of any rights to subscribe for
additional Shares or rights of any nature available to the Depositary as a
result of a distribution on Deposited Securities ("Rights"), to the extent
that the Company timely furnishes to the Depositary evidence satisfactory
to the Depositary that the Depositary may lawfully distribute the same (the
Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights
are practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Rights as in the case of Cash, or (iii) to the extent
the Company does not so furnish such evidence and such sales cannot
practicably be accomplished by reason of the nontransferability of the
Rights, limited markets therefor, their short duration or otherwise,
nothing (and any Rights may lapse). (d) Other Distributions. (i) Securities
or property available to the Depositary resulting from any distribution on
Deposited Securities other than Cash, Share Distributions and Rights
("Other Distributions"), by any means that the Depositary may deem
equitable and practicable, or (ii) to the extent the Depositary deems
distribution of such securities or property not to be equitable and
practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the
United States for whole dollars and cents. Fractional cents will be
withheld without liability and dealt with by the Depositary in accordance
with its then current practices.
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(11) Record Dates. The Depositary may, after consultation with the Company if
practicable, fix a record date (which, to the extent applicable, shall be
as near as practicable to any corresponding record date set by the Company)
for the determination of the Holders who shall be responsible for the fee
assessed by the Depositary for administration of the ADR program and for
any expenses provided for in paragraph (7) hereof as well as for the
determination of the Holders who shall be entitled to receive any
distribution on or in respect of Deposited Securities, to give instructions
for the exercise of any voting rights, to receive any notice or to act in
respect of other matters and only such Holders shall be so entitled or
obligated.
(12) Voting of Deposited Securities. As soon as practicable after receipt from
the Company of notice of any meeting or solicitation of consents or proxies
of holders of Shares or other Deposited Securities, the Depositary shall
distribute to Holders a notice stating (a) such information as is contained
in such notice and any solicitation materials, (b) that each Holder on the
record date set by the Depositary therefor will, subject to any applicable
provisions of the Cayman Islands law, be entitled to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to
the Deposited Securities represented by the ADSs evidenced by such Holder's
ADRs and (c) the manner in which such instructions may be given or deemed
given, including instructions to give a discretionary proxy to a person
designated by the Company. Upon receipt of instructions of a Holder on such
record date in the manner and on or before the date established by the
Depositary for such purpose, the Depositary shall endeavor insofar as
practicable and permitted under the provisions of or governing Deposited
Securities to vote or cause to be voted the Deposited Securities
represented by the ADSs evidenced by such Holder's ADRs in accordance with
such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities. To the extent such
instructions are not so received by the Depositary from any Holder, the
Depositary shall deem such Holder to have so instructed the Depositary to
give a discretionary proxy to a person designated by the Company and the
Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to give a discretionary
proxy to a person designated by the Company to vote the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs as to
which such instructions are so given, provided that no such instruction
shall be deemed given and no discretionary proxy shall be given with
respect to any matter as to which the Company informs the Depositary (and
the Company agrees to provide such information promptly in writing) or the
Depositary reasonably believes (in the case of (y) or (z) below) that (x)
the Company does not wish such proxy given, (y) substantial opposition
exists or (z) materially affects the rights of holders of Shares. There is
no guarantee that Holders generally or any Holder in particular will
receive the notice described above with sufficient time to enable such
Holder to return any voting instructions to the Depositary in a timely
manner.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and (5),
the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange)
or cash, securities or property on the record date set by the Depositary
therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
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Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and, irrespective of whether such
Deposited Securities are surrendered or otherwise cancelled by operation of
law, rule, regulation or otherwise, to sell by public or private sale any
property received in connection with) any recapitalization, reorganization,
merger, consolidation, liquidation, receivership, bankruptcy or sale of all
or substantially all the assets of the Company, and to the extent the
Depositary does not so amend this ADR or make a distribution to Holders to
reflect any of the foregoing, or the net proceeds thereof, whatever cash,
securities or property results from any of the foregoing shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent its pro rata interest in the Deposited Securities as then
constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of them
shall: (a) incur no liability (i) if any present or future law, rule,
regulation, fiat, order or decree of the United States, the Cayman Islands,
the People's Republic of China or any other country, or of any governmental
or regulatory authority or any securities exchange or market or automated
quotation system, the provisions of or governing any Deposited Securities,
any present or future provision of the Company's charter, any act of God,
war, terrorism or other circumstance beyond its control shall prevent,
delay or subject to any civil or criminal penalty any act which the Deposit
Agreement or this ADR provides shall be done or performed by it or them
(including, without limitation, voting pursuant to paragraph (12) hereof),
or (ii) by reason of any exercise or failure to exercise any discretion
given it in the Deposit Agreement or this ADR; (b) assume no liability
except to perform its obligations to the extent they are specifically set
forth in this ADR and the Deposit Agreement without gross negligence or bad
faith; (c) in the case of the Depositary and its agents, be under no
obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or this ADR; (d) in the
case of the Company and its agents hereunder be under no obligation to
appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or this ADR, which in its opinion may
involve it in expense or liability, unless indemnity satisfactory to it
against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required; or (e) not be liable
for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares
for deposit, any Holder, or any other person believed by it to be competent
to give such advice or information. The Depositary, its agents and the
Company may rely and shall be protected in acting upon any written notice,
request, direction or other document believed by them to be genuine and to
have been signed or presented by the proper party or parties. The
Depositary and its agents will not be responsible for any failure to carry
out any instructions to vote any of the Deposited Securities, for the
manner in which any such vote is cast or for the effect of any such vote.
The Depositary and its agents may own and deal in any class of securities
of the Company and its affiliates and in ADRs. Notwithstanding anything to
the contrary set forth in the Deposit Agreement or an ADR, the Depositary
and its agents may fully respond to any and all demands or requests for
information maintained by or on its behalf in connection with the Deposit
Agreement, any Holder or Holders, any ADR or ADRs or otherwise related
hereto to the extent such information is requested or required
A-10
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations, administrative or judicial process, banking, securities
or other regulators. The Company has agreed to indemnify the Depositary and
its agents under certain circumstances and the Depositary has agreed to
indemnify the Company under certain circumstances. Neither the Company nor
the Depositary nor any of their respective agents shall be liable to
Holders or beneficial owners of interests in ADSs for any indirect,
special, punitive or consequential damages. No disclaimer of liability
under the Securities Act of 1933 is intended by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary may
resign as Depositary by 60 days prior written notice of its election so to
do delivered to the Company, such resignation to take effect upon the
appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary may at any
time be removed by the Company by no less than 60 days prior written notice
of such removal delivered to the Depositary. The Depositary may appoint
substitute or additional Custodians and the term "Custodian" refers to each
Custodian or all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and the
Deposit Agreement may be amended by the Company and the Depositary,
provided that any amendment that imposes or increases any fees or charges
(other than stock transfer or other taxes and other governmental charges,
transfer or registration fees, cable, telex or facsimile transmission
costs, delivery costs or other such expenses), or that shall otherwise
prejudice any substantial existing right of Holders, shall become effective
30 days after notice of such amendment shall have been given to the
Holders. Every Holder of an ADR at the time any amendment to the Deposit
Agreement so becomes effective shall be deemed, by continuing to hold such
ADR, to consent and agree to such amendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the
right of the Holder of any ADR to surrender such ADR and receive the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law. Any amendments or supplements which
(i) are reasonably necessary (as agreed by the Company and the Depositary)
in order for (a) the ADSs to be registered on Form F-6 under the Securities
Act of 1933 or (b) the ADSs or Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any
fees or charges to be borne by Holders, shall be deemed not to prejudice
any substantial rights of Holders. Notwithstanding the foregoing, if any
governmental body or regulatory body should adopt new laws, rules or
regulations which would require amendment or supplement of the Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and the
ADR at any time in accordance with such changed laws, rules or regulations.
Such amendment or supplement to the Deposit Agreement in such circumstances
may become effective before a notice of such amendment or supplement is
given to Holders or within any other period of time as required for
compliance.
(17) Termination. Upon the resignation or removal of the Depositary pursuant to
the Deposit Agreement, the Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to
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the Holders at least 30 days prior to the date fixed in such notice for
such termination, which 30 days shall not act to reduce the 60 days
referred to in paragraph (15) above. After the date so fixed for
termination, the Depositary and its agents will perform no further acts
under the Deposit Agreement and this ADR, except to receive and hold (or
sell) distributions on Deposited Securities and deliver Deposited
Securities being withdrawn. As soon as practicable after the expiration of
six months from the date so fixed for termination, the Depositary shall
sell the Deposited Securities and shall thereafter (as long as it may
lawfully do so) hold in a segregated account the net proceeds of such
sales, together with any other cash then held by it under the Deposit
Agreement, without liability for interest, in trust for the pro rata
benefit of the Holders of ADRs not theretofore surrendered. After making
such sale, the Depositary shall be discharged from all obligations in
respect of the Deposit Agreement and this ADR, except to account for such
net proceeds and other cash. After the date so fixed for termination, the
Company shall be discharged from all obligations under the Deposit
Agreement except for its obligations to the Depositary and its agents.
(18) Appointment. Each Holder and each person holding an interest in ADSs, upon
acceptance of any ADSs (or any interest therein) issued in accordance with
the terms and conditions of the Deposit Agreement shall be deemed for all
purposes to (a) be a party to and bound by the terms of the Deposit
Agreement and the applicable ADR(s), and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to
take any and all actions contemplated in the Deposit Agreement and the
applicable ADR(s), to adopt any and all procedures necessary to comply with
applicable law and to take such action as the Depositary in its sole
discretion may deem necessary or appropriate to carry out the purposes of
the Deposit Agreement and the applicable ADR(s), the taking of such actions
to be the conclusive determinant of the necessity and appropriateness
thereof.
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