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Dated o 2005
WATCHDATA TECHNOLOGIES LTD.
AND
DEUTSCHE BANK TRUST COMPANY AMERICAS
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
DEPOSIT AGREEMENT
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WHITE & CASE
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TABLE OF CONTENTS
Page
1. CERTAIN DEFINITIONS......................................................1
2. ADRS.....................................................................2
3. DEPOSIT OF SHARES........................................................2
4. ISSUE OF ADRS............................................................3
5. DISTRIBUTIONS ON DEPOSITED SECURITIES....................................3
6. WITHDRAWAL OF DEPOSITED SECURITIES.......................................3
7. SUBSTITUTION OF ADRS.....................................................4
8. CANCELLATION AND DESTRUCTION OF ADRS.....................................4
9. THE CUSTODIAN............................................................4
10. CO-REGISTRARS AND CO-TRANSFER AGENTS.....................................4
11. LISTS OF HOLDERS.........................................................4
12. DEPOSITARY'S AGENTS......................................................4
13. SUCCESSOR DEPOSITARY.....................................................5
14. REPORTS..................................................................5
15. ADDITIONAL SHARES........................................................5
16. INDEMNIFICATION..........................................................5
17. NOTICES..................................................................6
18. MISCELLANEOUS............................................................6
19. CONSENT TO JURISDICTION..................................................7
EXHIBIT A [FORM OF FACE OF ADR]...............................................9
DEPOSIT AGREEMENT dated o 2005 (the "Deposit Agreement")
BETWEEN:
(1) WATCHDATA TECHNOLOGIES LTD. and its successors (the "Company");
(2) DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary hereunder (the
"Depositary"); and
(3) All holders from time to time of AMERICAN DEPOSITARY RECEIPTS issued
hereunder ("ADRs") evidencing American Depositary Shares ("ADSs")
representing deposited Shares (defined below).
THE PARTIES HERETO AGREE as follows:
1. CERTAIN DEFINITIONS
"ADR Register" is defined in paragraph (3) of the form of ADR.
"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.
Subject to paragraph (13) of the form of ADR, each "ADS" evidenced by an
ADR represents the right to receive 1 Share and a pro rata share in any
other Deposited Securities.
"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.
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.
"Delivery Order" is defined in Section 3.
"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.
"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 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
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maintained by DTC which provides for automated transfer of ownership
between DTC and the Depositary.
"Holder" means the person or persons in whose name an ADR is registered on
the ADR Register.
"Securities Act of 1933" means the United States Securities Act of 1933, as
from time to time amended.
"Securities Exchange Act of 1934" means the United States Securities
Exchange Act of 1934, as from time to time amended.
"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.
"Transfer Office" is defined in paragraph (3) of the form of ADR.
"Withdrawal Order" is defined in Section 6.
2. ADRS
2.1 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.
2.2 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.
2.3 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 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 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 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.
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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 any 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.
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 may from
time to time appoint one or more agents to act for it as Custodian
hereunder. Each Custodian so appointed (other than Deutsche Bank AG or any
subsidiary thereof) 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.
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 Deutsche Bank AG or any subsidiary thereof) 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.
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13. SUCCESSOR DEPOSITARY
The Depositary may at any time resign as Depositary hereunder by written
notice of its election so to do delivered to the Company. The Depositary
may at any time be removed by the Company by written notice of such
removal. 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. 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.
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 (ii) by the Company or any of
its directors, employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall 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.
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) Deutsche Bank Trust Company Americas
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Attention: ADR Department
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Watchdata Technologies Ltd.
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Chaoyang District
Beijing, 100015, PRC
Attention: ▇▇▇▇▇ ▇▇▇▇▇
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 thereby. This Deposit Agreement may be
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executed in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument.
19. 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 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 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.
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 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, WATCHDATA TECHNOLOGIES LTD. 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 of ADRs shall become parties hereto upon
acceptance by them of ADRs issued in accordance with the terms hereof.
WATCHDATA TECHNOLOGIES LTD.
By:
Name:
Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
Name:
Title:
By:
Name:
Title:
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EXHIBIT A
[FORM OF FACE OF RECEIPT]
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Number
American Depositary Shares
(1 American Depositary Share
Represents 1 Fully Paid Ordinary
Share, par value
$0.001 per Share)
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
WATCHDATA TECHNOLOGIES LTD.
(Incorporated under the laws of The Cayman Islands)
DEUTSCHE BANK TRUST COMPANY AMERICAS, 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 1 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
Watchdata Technologies Ltd., a corporation organized under the laws of The
Cayman Islands (the "Company"), deposited under the Deposit Agreement dated o
2005 (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 Office (defined in paragraph (3)) only (a) against
deposit with the Custodian of Shares in form satisfactory to the Custodian
or rights to receive Shares from the Company or any registrar, transfer
agent, clearing agent or other entity recording Share ownership or
transactions or,(b) unless requested in writing by the Company to cease
doing so, subject to two days advance notice, other rights to receive
Shares (until such Shares are actually deposited pursuant to (a) 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
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 and (d)
will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and
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(iii) all Pre-released ADRs evidence not more than 30% of all ADSs
(excluding those evidenced by Pre-released ADRs), 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, or to the extent in dematerialized form from, the Custodian's
office of the Deposited Securities at the time represented by the ADSs
evidenced by this ADR. At the request, risk and expense of the Holder
hereof, the Depositary may deliver such Deposited Securities at such other
place as may have been requested by the Holder. Notwithstanding any other
provision of the Deposit Agreement or this ADR, the withdrawal of Deposited
Securities may be restricted only for the reasons set forth in General
Instruction I.A.(1) of Form F-6 (as such instructions may be amended from
time to time) under the Securities Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a designated
transfer office 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 same number of ADSs
evidenced by this ADR, 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
10
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 and genuineness of any signature and (ii) such other information,
including without limitation, information as to citizenship, residence,
exchange control approval, beneficial ownership of any securities,
compliance with applicable law, regulations, provisions of or governing
Deposited Securities and terms of the Deposit Agreement and this ADR, as it
may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The
issuance of ADRs, the acceptance of deposits of Shares, the registration,
registration of transfer, split-up or combination of ADRs or 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, 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 the applicable ADR(s) or under
any provision of, or governing, the Deposited Securities, or because of a
meeting of shareholders of the Company or for any other reason, subject, in
all cases, to the last sentence of paragraph (2) hereof.
(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. 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.
11
(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 Company reserves the right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the
Deposited Securities so as to permit the Company to deal directly with the
Holder thereof as a holder of Shares and Holders agree to comply with such
instructions. The Depositary agrees to cooperate with the Company in its
efforts to inform Holders of the Company's exercise of its rights under
this paragraph and agrees to consult with, and provide reasonable
assistance without risk, liability or expense on the part of the
Depositary, to the Company on the manner or manners in which it may enforce
such rights with respect to any Holder.
(7) Charges of Depositary. The Depositary may charge each person to whom ADSs
are issued against deposits of Shares, including deposits in respect of
Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph (10)), and each person surrendering ADSs for
withdrawal of Deposited Securities, U.S.$5.00 for each 100 ADSs (or portion
thereof) delivered or surrendered. 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 ADRs or to whom ADRs 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 ADRs or the Deposited
Securities or a distribution of ADRs pursuant to paragraph (10)), whichever
is applicable (I) to the extent not prohibited by the rules of the primary
stock exchange upon which the ADSs are listed, a fee of $.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 the
primary stock exchange upon which the ADSs are listed, a fee of $1.50 per
ADR or ADRs for transfers made pursuant to paragraph (3) hereof, (iii) a
fee for the distribution or sale of securities pursuant to paragraph (10)
hereof, such fee being in an amount equal to the fee for the execution and
delivery of ADSs referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this paragraph
(7) treating all such securities as if they were Shares) but which
securities or the net cash proceeds from the sale thereof are instead
distributed by the Depositary to Holders entitled thereto, (iv) to the
extent not prohibited by the rules of the primary stock exchange upon which
the ADSs are listed, a fee of US$0.02 per ADS (or portion thereof) per year
to cover such expenses as are incurred, and services performed, by the
Depositary in administering our ADR program (which fee shall be assessed
against Holders as of the record date or dates set by the Depositary not
more 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 dividends or other cash distributions), 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
12
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) These charges may be changed in the manner
indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the
Company, which are both received by the Custodian or its nominee as a
holder of Deposited Securities and made generally available to the holders
of Deposited Securities, are available for inspection by Holders at the
offices of the Depositary and the Custodian and at the Transfer Office. The
Depositary will distribute copies of such communications (or English
translations or summaries thereof) to Holders when furnished by the
Company. The Company is subject to the periodic reporting requirements of
the Securities Exchange Act of 1934 and accordingly files certain reports
with the United States Securities and Exchange Commission (the
"Commission"). Such reports and other information may be inspected and
copied at public reference facilities maintained by the Commission located
at the date hereof at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇.
(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:
DEUTSCHE BANK TRUST COMPANY AMERICAS
as Depositary
By:
---------------------------------------
Authorized Officer
The Depositary's office is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
13
[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.
14
(11) Record Dates. The Depositary may, after consultation with the Company if
practicable, fix a record date (which 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 Cayman Island 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, including instructions
to give a discretionary proxy to a person designated by the Company. Upon
receipt of instructions of a Holder on such record date in the manner and
on or before the date established by the Depositary for such purpose, the
Depositary shall endeavor insofar as practicable and permitted under the
provisions of or governing Deposited Securities to vote or cause to be
voted the Deposited Securities represented by the ADSs evidenced by such
Holder's ADRs in accordance with such instructions. The Depositary will not
itself exercise any voting discretion in respect of any Deposited
Securities. There is no guarantee that Holders generally or any Holder in
particular will receive the notice described above with sufficient time to
enable such Holder to return any voting instructions to the Depositary in a
timely manner.
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, acting in a fiduciary capacity on behalf of Holders,
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.
Notwithstanding anything to the contrary contained herein, the Depositary
shall not be obligated to give any such deemed instruction unless and until
the Depositary has been provided with an opinion of counsel to the Company,
in form and substance satisfactory to the Depositary, to the effect that
(i) the granting of such discretionary proxy does not subject the
Depositary to any reporting obligations in the Cayman Islands or the
People's Republic of China, (ii) the granting of such proxy will not result
in a violation of Cayman Island or, to the extent applicable, People's
Republic of China law, rule, regulation or permit, (iii) the voting
arrangement and proxy as contemplated herein will be given effect under
Cayman Island law, (iv) the Depositary will not be deemed to be authorized
to exercise any discretion when voting in accordance with the terms of this
paragraph (12) under Cayman Island law and, (v) the Depositary will not be
subject to any liability under Cayman Island law for losses arising from
the exercise of the voting arrangements set forth in this paragraph (12).
15
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and (5),
the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange)
or cash, securities or property on the record date set by the Depositary
therefor to reflect any change in par value, split-up, consolidation,
cancellation or other reclassification of Deposited Securities, any Share
Distribution or Other Distribution not distributed to Holders or any cash,
securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and 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 or
regulation 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 stock exchange, the provisions of or governing any Deposited
Securities, 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 (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 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.
16
(15) Resignation and Removal of Depositary; the Custodian. The Depositary may
resign as Depositary by written notice of its election to do so delivered
to the Company, or be removed as Depositary by the Company by 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 rules. 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 the Holders at least 30 days prior to
the date fixed in such notice for such termination. 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
17
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.
18