EXHIBIT A(2)
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1, dated as of February 3, 2009 (the "Amendment"), to the
Deposit Agreement dated as of June 13, 2007 among Yingli Green Energy Holding
Company Limited, JPMorgan Chase Bank, N.A., as depositary (the "Depositary"),
and all holders from time to time of American Depositary Receipts issued
thereunder.
WITNESSETH:
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WHEREAS, the Company and the Depositary executed the Deposit Agreement for
the purposes set forth therein; and
WHEREAS, pursuant to paragraph (16) of the form of ADR set forth in Exhibit
A of the Deposit Agreement, the Company and the Depositary deem it necessary and
desirable to amend the terms of the Deposit Agreement and ADRs;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. DEFINITIONS. Unless otherwise defined in this Amendment, all
capitalized terms used, but not otherwise defined, herein shall have the meaning
given to such terms in the Deposit Agreement.
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ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
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SECTION 2.01. All references in the Deposit Agreement to the terms "Deposit
Agreement" shall, as of the date hereof, refer to the Deposit Agreement as
further amended by this Amendment.
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ARTICLE III
AMENDMENTS TO THE FORM OF ADR
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SECTION 3.01. Paragraph (8) of the form of ADR is amended to read as
follows:
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 ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and accordingly file certain reports with the
United States Securities and Exchange Commission (the "Commission"). Such
reports and documents may be inspected and copied at the public reference
facilities maintained by the Commission located at the date hereof at ▇▇▇ ▇
▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
SECTION 3.02. The form of ADR, reflecting the amendments set forth herein,
is amended and restated to read as set forth as Exhibit A hereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
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SECTION 4.01. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to, and agrees with, the Depositary and Holders, that:
(a) This Amendment, when executed and delivered by the Company, will be
duly and validly authorized, executed and delivered by the Company, and it
and the Deposit Agreement as amended hereby constitute the legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their respective terms, subject to bankruptcy, insolvency,
fraudulent transfer, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, neither of such agreements need to be filed or recorded
with any court or other authority in the Cayman Islands, nor does any stamp
or similar tax or governmental charge need to be paid in the Cayman Islands
on or in respect of such agreements.
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ARTICLE V
MISCELLANEOUS
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SECTION 5.01. EFFECTIVE DATE. This Amendment is dated as of the date set
forth above.
SECTION 5.02. OUTSTANDING ADRS. ADRs issued prior or subsequent to the date
hereof, which do not reflect the changes to the form of ADR effected hereby, do
not need to be called in for exchange and may remain outstanding until such time
as the Holders thereof choose to surrender them for any reason under the Deposit
Agreement. The Depositary is authorized and directed to take any and all actions
deemed necessary to effect the foregoing.
SECTION 5.03. INDEMNIFICATION. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 16 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Amendment and the transactions contemplated herein.
SECTION 5.04. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
YINGLI GREEN ENERGY HOLDING
COMPANY LIMITED
By:
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Executive Officer
JPMORGAN CHASE BANK, N.A.
By:
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Name:
Title:
ANNEXED TO AND INCORPORATED IN
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
[FORM OF FACE OF ADR]
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Number
No. of ADSs:
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Each ADS represents
one Share
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
ORDINARY SHARES
of
YINGLI GREEN ENERGY HOLDING COMPANY LIMITED
(Incorporated under the laws of the Cayman Islands)
JPMORGAN CHASE BANK, N.A., a national banking association organized under the
laws of the United States of America, as depositary hereunder (the
"Depositary"), hereby certifies that is the registered owner (a "Holder") of
American Depositary Shares ("ADSs"), each (subject to paragraph (13))
representing one 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 YINGLI GREEN ENERGY HOLDING
COMPANY LIMITED, a corporation organized under the laws of the Cayman Islands
(the "Company"), deposited under the Deposit Agreement dated as of June 13, 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
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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 of U.S.$1.50 per ADR or ADRs for transfers made pursuant to paragraph
(3) hereof, (iii) a fee for the distribution or sale of securities
pursuant to paragraph (10) hereof, such fee being in an amount equal to
the fee for the execution and delivery of ADSs referred to above which
would have been charged as a result of the deposit of such securities (for
purposes of this paragraph (7) treating all such securities as if they
were Shares) but which securities or the net cash proceeds from the sale
thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv) to the extent not prohibited by the rules of the primary
stock exchange upon which the ADSs are listed, a fee of up to U.S.$0.04
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
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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 Shares or
Holders withdrawing Deposited Securities; there are no such fees in
respect of the Shares as of the date of the Deposit Agreement), (iv)
expenses of the Depositary in connection with the conversion of foreign
currency into U.S. dollars (which are paid out of such foreign currency),
and (v) any other charge payable by any of the Depositary, any of the
Depositary's agents, including, without limitation, the Custodian, or the
agents of the Depositary's agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed
against Holders as of the record date or dates set by the Depositary and
shall be payable at the sole discretion of the Depositary by billing such
Holders or by deducting such charge from one or more cash dividends or
other cash distributions). Such charges may at any time and from time to
time be changed by agreement between the Company and the Depositary.
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the
Company, which are both received by the Custodian or its nominee as a
holder of Deposited Securities and made generally available to the holders
of Deposited Securities, are available for inspection by Holders at the
offices of the Depositary and the Custodian and at the Transfer Office.
The Depositary will distribute copies of such communications (or English
translations or summaries thereof) to Holders when furnished by the
Company. The Company is subject to the periodic reporting requirements of
the Securities Exchange Act of 1934 and accordingly 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 ▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
(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
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Authorized Officer
The Depositary's office is located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and (5),
to the extent practicable, the Depositary will distribute to each Holder
entitled thereto on the record date set by the Depositary therefor at such
Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by
such Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary
resulting from a cash dividend or other cash distribution or the net
proceeds of sales of any other distribution or portion thereof authorized
in this paragraph (10) ("Cash"), on an averaged or other practicable
basis, subject to (i) appropriate adjustments for taxes withheld, (ii)
such distribution being impermissible or impracticable with respect to
certain Holders, and (iii) deduction of the Depositary's expenses in (1)
converting any foreign currency to U.S. dollars by sale or in such other
manner as the Depositary may determine to the extent that it determines
that such conversion may be made on a reasonable basis, (2) transferring
foreign currency or U.S. dollars to the United States by such means as the
Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or
transfer, which is obtainable at a reasonable cost and within a reasonable
time and (4) making any sale by public or private means in any
commercially reasonable manner. (b) Shares. (i) Additional ADRs evidencing
whole ADSs representing any Shares available to the Depositary resulting
from a dividend or free distribution on Deposited Securities consisting of
Shares (a "Share Distribution") and (ii) U.S. dollars available to it
resulting from the net proceeds of sales of Shares received in a Share
Distribution, which Shares would give rise to fractional ADSs if
additional ADRs were issued therefor, as in the case of Cash. (c) Rights.
(i) Warrants or other instruments in the discretion of the Depositary
representing rights to acquire additional ADRs in respect of any rights to
subscribe for additional Shares or rights of any nature available to the
Depositary as a result of a distribution on Deposited Securities
("Rights"), to the extent that the Company timely furnishes to the
Depositary evidence satisfactory to the Depositary that the Depositary may
lawfully distribute the same (the Company has no obligation to so furnish
such evidence), or (ii) to the extent the Company does not so furnish such
evidence and sales of Rights are practicable, any U.S. dollars available
to the Depositary from the net proceeds of sales of Rights as in the case
of Cash, or (iii) to the extent the Company does not so furnish such
evidence and such sales cannot practicably be accomplished by reason of
the nontransferability of the Rights, limited markets therefor, their
short duration or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions. (i) Securities or property available to the Depositary
resulting from any distribution on Deposited Securities other than Cash,
Share Distributions and Rights ("Other Distributions"), by any means that
the Depositary may deem equitable and practicable, or (ii) to the extent
the Depositary deems distribution of such securities or property not to be
equitable and practicable, any U.S. dollars available to the Depositary
from the net proceeds of sales of Other Distributions as in the case of
Cash. Such U.S. dollars available will be distributed by checks drawn on a
bank in the United States for whole dollars and cents. Fractional cents
will be withheld without liability and dealt with by the Depositary in
accordance with its then current practices.
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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
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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.
(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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