Exhibit (a)(i)
EXECUTION VERSION
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AMENDED AND RESTATED DEPOSIT AGREEMENT
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by and among
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS INTERNATIONAL LIMITED
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES ISSUED HEREUNDER
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Dated as of [DATE], 2009
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..................................................................................1
Section 1.1 "ADS Record Date"............................................................................2
Section 1.2 "Affiliate"..................................................................................2
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"..................................2
Section 1.4 "American Depositary Share(s)" and "ADS(s)"..................................................2
Section 1.5 "Applicant"..................................................................................2
Section 1.6 "Beneficial Owner"...........................................................................2
Section 1.7 "Certificated ADS(s)"........................................................................2
Section 1.8 "Commission".................................................................................2
Section 1.9 "Company"....................................................................................2
Section 1.10 "Custodian"..................................................................................3
Section 1.11 "Deliver" and "Delivery".....................................................................3
Section 1.12 "Deposit Agreement"..........................................................................3
Section 1.13 "Depositary".................................................................................3
Section 1.14 "Deposited Securities".......................................................................3
Section 1.15 "Dollars" and "$"............................................................................3
Section 1.16 "DTC"........................................................................................3
Section 1.17 "DTC Participant"............................................................................3
Section 1.18 "Exchange Act"...............................................................................3
Section 1.19 "Foreign Currency"...........................................................................4
Section 1.20 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and "Full Entitlement
Share(s)"....................................................................................4
Section 1.21 "HK$"........................................................................................4
Section 1.22 "Holder(s)"..................................................................................4
Section 1.23 "Hong Kong"..................................................................................4
Section 1.24 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)" and "Partial
Entitlement Share(s)"........................................................................4
Section 1.25 "Pre-Release Transaction"....................................................................4
Section 1.26 "Principal Office"...........................................................................4
Section 1.27 "Registrar"..................................................................................4
Section 1.28 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted Shares".............................4
Section 1.29 "Restricted Securities"......................................................................4
Section 1.30 "Securities Act".............................................................................5
Section 1.31 "Share Registrar"............................................................................5
Section 1.32 "Shares".....................................................................................5
Section 1.33 "Uncertificated ADS(s)"......................................................................5
Section 1.34 "United States" and "U.S."...................................................................5
ARTICLE II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.............................................5
Section 2.1 Appointment of Depositary....................................................................5
Table of Contents
(continued)
Page
Section 2.2 Form and Transferability of ADRs.............................................................6
Section 2.3 Deposit with Custodian.......................................................................7
Section 2.4 Registration and Safekeeping of Deposited Securities.........................................9
Section 2.5 Issuance of ADSs; Execution and Delivery of ADRs.............................................9
Section 2.6 Transfer, Combination and Split-up of ADRs...................................................9
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities....................................10
Section 2.8 Limitations on Issuance and Delivery, Transfer, etc. of ADSs; Suspension of
Delivery, Transfer, etc.....................................................................12
Section 2.9 Lost ADRs, etc..............................................................................13
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance of Records....................13
Section 2.11 Partial Entitlement ADSs....................................................................13
Section 2.12 Certificated/Uncertificated ADSs............................................................14
Section 2.13 Restricted ADSs.............................................................................15
ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs................................17
Section 3.1 Proofs, Certificates and Other Information..................................................17
Section 3.2 Liability for Taxes and Other Charges.......................................................17
Section 3.3 Representations and Warranties on Deposit of Shares.........................................18
Section 3.4 Compliance with Information Requests........................................................18
Section 3.5 Ownership Restrictions......................................................................19
ARTICLE IV THE DEPOSITED SECURITIES....................................................................19
Section 4.1 Cash Distributions..........................................................................19
Section 4.2 Distribution in Shares......................................................................20
Section 4.3 Elective Distributions in Cash or Shares....................................................20
Section 4.4 Distribution of Rights to Purchase Additional ADSs..........................................21
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase Shares..........................23
Section 4.6 Distributions with Respect to Deposited Securities in Bearer Form...........................24
Section 4.7 Redemption..................................................................................24
Section 4.8 Conversion of Foreign Currency..............................................................25
Section 4.9 Fixing of ADS Record Date...................................................................25
Section 4.10 Voting of Deposited Securities..............................................................26
Section 4.11 Changes Affecting Deposited Securities......................................................28
Section 4.12 Available Information.......................................................................29
Section 4.13 Reports.....................................................................................29
Section 4.14 List of Holders.............................................................................29
Section 4.15 Taxation....................................................................................29
ARTICLE V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY...............................................31
Section 5.1 Maintenance of Office and Transfer Books by the Registrar...................................31
Section 5.2 Exoneration.................................................................................31
Section 5.3 Standard of Care............................................................................32
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Table of Contents
(continued)
Page
Section 5.4 Resignation and Removal of the Depositary; Appointment of Successor
Depositary..................................................................................33
Section 5.5 The Custodian...............................................................................33
Section 5.6 Notices and Reports.........................................................................34
Section 5.7 Issuance of Additional Shares, ADSs etc.....................................................35
Section 5.8 Indemnification.............................................................................36
Section 5.9 Fees and Charges of Depositary..............................................................37
Section 5.10 Pre-Release Transactions....................................................................38
Section 5.11 Restricted Securities Owners................................................................39
ARTICLE VI AMENDMENT AND TERMINATION...................................................................39
Section 6.1 Amendment/Supplement........................................................................39
Section 6.2 Termination.................................................................................40
ARTICLE VII MISCELLANEOUS...............................................................................41
Section 7.1 Counterparts................................................................................41
Section 7.2 No Agency...................................................................................41
Section 7.3 No Third-Party Beneficiaries................................................................41
Section 7.4 Severability................................................................................41
Section 7.5 Holders and Beneficial Owners as Parties; Binding Effect....................................41
Section 7.6 Notices.....................................................................................41
Section 7.7 Governing Law and Jurisdiction..............................................................42
Section 7.8 Assignment..................................................................................44
Section 7.9 Compliance with U.S. Securities Laws........................................................44
Section 7.10 Titles and References.......................................................................44
Section 7.11 Amendment and Restatement...................................................................44
Exhibit A Form of ADR................................................................................A-1
Exhibit B Fee Schedule...............................................................................B-1
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2
3257356v.6
AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of [DATE], 2009, by and
among (i) ▇▇▇▇▇▇▇▇▇ Telecommunications International Limited, a company
organized under the laws of the Cayman Islands, and its successors (the
"Company"), (ii) Citibank, N.A., a national banking association organized under
the laws of the United States of America acting in its capacity as depositary,
and any successor depositary hereunder (the "Depositary"), and (iii) all Holders
and Beneficial Owners from time to time of American Depositary Shares issued
under this Deposit Agreement (all such capitalized terms as hereinafter
defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company and Citibank, N.A., as Depositary, previously entered
into a Deposit Agreement, dated as of October 15, 2004 (the "Original Deposit
Agreement") which established an ADR facility to provide, inter alia, for the
deposit of the Shares (as hereinafter defined) and the creation of American
Depositary Shares representing the Shares so deposited; and
WHEREAS, the Company and the Depositary desire to amend and restate the
Original Deposit Agreement upon the terms set forth in this Deposit Agreement
(as hereinafter defined); and
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, any American Depositary Receipts evidencing the American
Depositary Shares issued pursuant to the terms of this Deposit Agreement are to
be substantially in the form of Exhibit A attached hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the American Depositary Shares to be issued pursuant to the terms
of this Deposit Agreement are listed for trading on The New York Stock Exchange,
Inc. ("NYSE") under the symbol "HTX"; and
WHEREAS, the Company's board of directors (or an authorized committee
thereof) has duly approved this Deposit Agreement, the execution and delivery of
this Deposit Agreement on behalf of the Company, and the actions of the Company
and the transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "ADS Record Date" shall have the meaning given to such term in
Section 4.9.
Section 1.2 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined), or under any successor regulation
thereto.
Section 1.3 "American Depositary Receipt(s)", "ADR(s)" and "Receipt(s)"
shall mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of this Deposit Agreement in the form
of Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended
from time to time in accordance with the provisions of this Deposit Agreement.
An ADR may evidence any number of ADSs and may, in the case of ADSs held through
a central depository such as DTC, be in the form of a "Balance Certificate."
Section 1.4 "American Depositary Share(s)" and "ADS(s)" shall mean the
rights and interests in the Deposited Securities granted to the Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and, if issued as Certificated ADSs, the ADRs issued hereunder to evidence such
ADSs. Each ADS shall represent the right to receive fifteen (15) Share(s) until
there shall occur a distribution upon Deposited Securities referred to in
Section 4.2 or a change in Deposited Securities referred to in Section 4.11 with
respect to which additional ADSs are not issued, and thereafter each ADS shall
represent the right to receive the Deposited Securities determined in accordance
with the terms of such Sections. ADS(s) may be issued under the terms of the
Deposit Agreement in the form of (a) Certificated ADS(s) (as hereinafter
defined), in which case the ADS(s) are evidenced by ADR(s), or (b)
Uncertificated ADS(s) (as hereinafter defined), in which case the ADS(s) are not
evidenced by ADR(s) but are reflected on the direct registration system
maintained by the Depositary for such purposes under the terms of Section 2.12
hereof. Unless otherwise specified in this Deposit Agreement or in any ADR, or
unless the context otherwise requires, any reference in the Deposit Agreement or
any ADR to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s),
individually or collectively, as the context may require.
Section 1.5 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.6 "Beneficial Owner" shall mean, as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of such ADSs. A Beneficial
Owner shall be able to exercise any right or receive any benefit hereunder
solely through the person who is the Holder of the ADSs owned by such Beneficial
Owner.
Section 1.7 "Certificated ADS(s)" shall have the meaning given to such
term in Section 2.12.
Section 1.8 "Commission" shall mean the Securities and Exchange Commission
of the United States or any successor governmental agency thereto in the United
States.
Section 1.9 "Company" shall mean ▇▇▇▇▇▇▇▇▇ Telecommunications
International Limited, a company incorporated and existing under the laws of the
Cayman Islands, and any successor thereto.
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Section 1.10 "Custodian" shall mean, as of the date hereof, Citibank, N.A.
- Hong Kong Branch, having its principal office at ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, as the custodian for the purposes of
this Deposit Agreement, and any other entity that may be appointed by the
Depositary pursuant to the terms of Section 5.5 as successor, substitute or
additional custodian hereunder. The term "Custodian" shall mean any Custodian
individually or all Custodians collectively, as the context requires.
Section 1.11 "Deliver" and "Delivery" shall mean, (x) when used in respect
of Shares and other Deposited Securities, either (i) the physical delivery of
certificate(s) representing such securities, or (ii) the book-entry transfer and
recordation of such securities on the books of a Share Registrar (as hereinafter
defined) or in a book-entry settlement system (if any), and (y) when used in
respect of ADSs, Deposited Securities and Shares, either (i) the physical
delivery of the ADR(s) representing such ADS(s), or (ii) the electronic delivery
of such securities by means of book-entry transfer, if available.
Section 1.12 "Deposit Agreement" shall mean this Amended and Restated
Deposit Agreement and all exhibits hereto, as the same may from time to time be
amended and supplemented from time to time in accordance with the terms hereof.
Section 1.13 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
Section 1.14 "Deposited Securities" shall mean Shares at any time
deposited under this Deposit Agreement and any and all other securities,
property and cash held by the Depositary or the Custodian in respect thereof,
subject, in the case of cash, to the provisions of Section 4.8. The collateral
delivered in connection with Pre-Release Transactions described in Section 5.10
hereof shall not constitute Deposited Securities.
Section 1.15 "Dollars" and "$" shall refer to the lawful currency of the
United States.
Section 1.16 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
Section 1.17 "DTC Participant"shall mean any financial institution (or any
nominee of such institution) having one or more participant accounts with DTC
for receiving, holding and delivering the securities and cash held in DTC. A DTC
Participant may or may not be a Beneficial Owner. If a DTC Participant is not
the Beneficial Owner of the ADSs credited to its account at DTC, or of the ADSs
in respect of which the DTC Participant is otherwise acting, such DTC
Participant shall be deemed, for all purposes hereunder, to have all requisite
authority to act on behalf of the Beneficial Owner(s) of the ADSs credited to
its account at DTC or in respect of which the DTC Participant is so acting.
Section 1.18 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended from time to time.
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Section 1.19 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.20 "Full Entitlement ADR(s)", "Full Entitlement ADS(s)" and
"Full Entitlement Share(s)" shall have the respective meanings set forth in
Section 2.11.
Section 1.21 "HK$" shall refer to the lawful currency of Hong Kong.
Section 1.22 "Holder(s)" shall mean the person(s), from time to time, in
whose name the ADSs are registered on the books of the Depositary (or the
Registrar, if any) maintained for such purpose. A Holder may or may not be a
Beneficial Owner. If a Holder is not the Beneficial Owner of the ADSs registered
in its name, such person shall be deemed to have all requisite authority to act
on behalf of the Beneficial Owners of the ADSs registered in its name.
Section 1.23 "Hong Kong" shall mean the Hong Kong Special Administrative
Region of the People's Republic of China.
Section 1.24 "Partial Entitlement ADR(s)", "Partial Entitlement ADS(s)"
and "Partial Entitlement Share(s)" shall have the respective meanings set forth
in Section 2.11.
Section 1.25 "Pre-Release Transaction" shall have the meaning set forth in
Section 5.10.
Section 1.26 "Principal Office" shall mean, when used with respect to the
Depositary, the principal office of the Depositary at which at any particular
time its depositary receipts business shall be administered, which, at the date
of this Deposit Agreement, is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A.
Section 1.27 "Registrar" shall mean the Depositary or any bank or trust
company having an office in the Borough of Manhattan, The City of New York,
which shall be appointed by the Depositary to register issuances, transfers and
cancellations of ADSs as herein provided, and shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary. Each
Registrar (other than the Depositary) appointed pursuant to this Deposit
Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
Section 1.28 "Restricted ADR(s)", "Restricted ADS(s)" and "Restricted
Shares" shall have the respective meanings set forth in Section 2.13.
Section 1.29 "Restricted Securities" shall mean Shares, Deposited
Securities or ADSs which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act (as hereinafter defined) or the rules issued thereunder, or (ii)
are held by an officer or director (or persons performing similar functions) or
other Affiliate of the Company, or (iii) are subject to other restrictions on
sale or deposit under the laws of the United States, the Cayman Islands, or Hong
Kong or under a shareholder agreement or the Memorandum and Articles of
Association of the Company or under the regulations of an applicable securities
exchange unless, in each case, such Shares, Deposited Securities or ADSs are
4
being transferred or sold to persons other than an Affiliate of the Company in a
transaction (a) covered by an effective resale registration statement, or (b)
exempt from the registration requirements of the Securities Act (as hereinafter
defined), and the Shares, Deposited Securities or ADSs are not, when held by
such person(s), Restricted Securities.
Section 1.30 "Securities Act" shall mean the United States Securities Act
of 1933, as amended from time to time.
Section 1.31 "Share Registrar" shall mean each of Computershare Hong Kong
Investor Services Limited and ▇▇▇▇▇▇▇▇▇▇▇ Fulcrum Group (Cayman) Limited or any
other institution appointed by the Company to carry out the duties of registrar
for the Shares, and any successor thereto.
Section 1.32 "Shares" shall mean the Company's ordinary shares, par value
HK$0.25 per Share, validly issued and outstanding and fully paid, or credited as
fully paid, and may, if the Depositary so agrees after consultation with the
Company, include evidence of the right to receive Shares; provided that in no
event shall Shares include evidence of the right to receive Shares with respect
to which the full purchase price has not been paid or Shares as to which
preemptive rights have theretofore not been validly waived or exercised;
provided further, however, that, if there shall occur any change in par value,
split-up, consolidation, reclassification, exchange, conversion or any other
event described in Section 4.11 in respect of the Shares, the term "Shares"
shall thereafter, to the maximum extent permitted by law, represent the
successor securities resulting from such event. The term "Shareholder(s)" shall
mean the holder(s) of Shares.
Section 1.33 "Uncertificated ADS(s)" shall have the meaning given to such
term in Section 2.12.
Section 1.34 "United States" and "U.S." shall have the meaning assigned to
it in Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby confirms the
prior appointment of the Depositary as depositary for the Deposited Securities
and hereby authorizes and directs the Depositary to act in accordance with the
terms and conditions set forth in this Deposit Agreement and the applicable
ADRs. Each Holder and each Beneficial Owner, upon acceptance of any ADSs (or any
interest therein) issued in accordance with the terms and conditions of this
Deposit Agreement shall be deemed for all purposes to (a) be a party to and
bound by the terms of this Deposit Agreement and the applicable 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 this Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable laws and to take such action as the Depositary in its
5
sole discretion may deem necessary or appropriate to carry out the purposes of
this Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness thereof.
Section 2.2 Form and Transferability of ADRs.
(a) Form. Subject to the requirements of the NYSE or any applicable
rules or regulations of any other securities exchange or market upon which
the ADSs may be listed or traded, Certificated ADSs shall be evidenced by
definitive ADRs which shall be engraved, printed, lithographed or produced
in such other manner as may be agreed upon by the Company and the
Depositary. ADRs may be issued under the Deposit Agreement in
denominations of any whole number of ADSs. The ADRs shall be substantially
in the form set forth in Exhibit A to the Deposit Agreement, with any
appropriate insertions, modifications and omissions, in each case as
otherwise contemplated in the Deposit Agreement or required by law. ADRs
shall be (i) dated, (ii) signed by the manual or facsimile signature of a
duly authorized signatory of the Depositary, (iii) countersigned by the
manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar
for the registration of issuances and transfers of ADRs. No ADR and no
Certificated ADS evidenced thereby shall be entitled to any benefits under
the Deposit Agreement or be valid or enforceable for any purpose against
the Depositary or the Company, unless such ADR shall have been so dated,
signed, countersigned and registered. ADRs bearing the manual or facsimile
signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly-authorized signatory of
the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be
so authorized prior to the delivery of such ADR by the Depositary. The
ADRs shall bear a CUSIP number that is different from any CUSIP number
that was, is or may be assigned to any depositary receipts previously or
subsequently issued pursuant to any other arrangement between the
Depositary (or any other depositary) and the Company and which are not
ADRs issued hereunder.
(b) Legends. The ADRs may be endorsed with, or have incorporated in
the text thereof, such legends or recitals not inconsistent with the
provisions of the Deposit Agreement as may be (i) necessary to enable the
Depositary and the Company to perform their respective obligations
hereunder, (ii) required to comply with any applicable laws or
regulations, or with the rules and regulations of any securities exchange
or market upon which ADSs may be traded, listed or quoted, or to conform
with any usage with respect thereto, (iii) necessary to indicate any
special limitations or restrictions to which any particular ADRs or the
Certificated ADSs evidenced thereby are subject by reason of the date of
issuance of the Deposited Securities or otherwise, or (iv) required by any
book-entry system in which the ADSs are held. Holders and Beneficial
Owners shall be deemed, for all purposes, to have notice of, and to be
bound by, the terms and conditions of the legends set forth, in the case
of Holders, on the ADR registered in the name of the applicable Holders
or, in the case of Beneficial Owners, on the ADR representing the ADSs
owned by such Beneficial Owners.
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(c) Title. Subject to the limitations contained herein and in the
ADR, title to an ADR (and to each Certificated ADS evidenced thereby)
shall be transferable upon the same terms as a certificated security under
the laws of the State of New York, provided that, in the case of
Certificated ADSs, such ADR has been properly endorsed or is accompanied
by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of
an ADR (that is, the person in whose name an ADR is registered on the
books of the Depositary) as the absolute owner thereof for all purposes.
Neither the Depositary nor the Company shall have any obligation nor be
subject to any liability under this Deposit Agreement or any ADR to any
holder of an ADR or any Beneficial Owner unless such holder is the Holder
of such ADR registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner, or the Beneficial Owner's
representative, is the Holder registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements for
the acceptance of the ADSs into DTC. Unless issued by the Depositary as
Uncertificated ADSs, a single ADR in the form of a "Balance Certificate"
will evidence all ADSs held through DTC and will be registered in the name
of the nominee for DTC (currently "Cede & Co.") and will provide that it
represents the aggregate number of ADSs from time to time indicated in the
records of the Depositary as being issued hereunder and that the aggregate
number of ADSs represented thereby may from time to time be increased or
decreased by making adjustments on such records of the Depositary and of
DTC or its nominee as hereinafter provided. As such, the nominee for DTC
will be the only "Holder" of the ADR evidencing all ADSs held through DTC.
Citibank, N.A. (or such other entity as is appointed by DTC or its
nominee) may hold the "Balance Certificate" as custodian for DTC. Each
Beneficial Owner of ADSs held through DTC must rely upon the procedures of
DTC and the DTC Participants to exercise or be entitled to any rights
attributable to such ADSs. The DTC Participants shall for all purposes be
deemed to have all requisite power and authority to act on behalf of the
Beneficial Owners of the ADSs held in the DTC Participants' respective
accounts in DTC and the Depositary shall for all purposes be authorized to
rely upon any instructions and information given to it by DTC Participants
on behalf of Beneficial Owners of ADSs. So long as ADSs are held through
DTC or unless otherwise required by law, ownership of beneficial interests
in the ADR registered in the name of the nominee for DTC will be shown on,
and transfers of such ownership will be effected only through, records
maintained by (i) DTC or its nominee (with respect to the interests of DTC
Participants), or (ii) DTC Participants or their nominees (with respect to
the interests of clients of DTC Participants).
Section 2.3 Deposit with Custodian. Subject to the terms and conditions of
the Deposit Agreement and applicable laws, Shares or evidence of rights to
receive Shares (other than Restricted Securities) may be deposited by any person
(including the Depositary in its individual capacity but subject, however, in
the case of the Company or any Affiliate of the Company, to Section 5.7) at any
time, whether or not the transfer books of the Company or the Share Registrars,
if any, are closed, by Delivery of the Shares to the Custodian. Every deposit of
Shares shall be accompanied by the following: (A) (i) in the case of Shares
represented by certificates issued in registered form, appropriate instruments
of transfer or endorsement, in a form satisfactory to the Custodian, (ii) in the
case of Shares represented by certificates in bearer form, the requisite coupons
7
and talons pertaining thereto, and (iii) in the case of Shares delivered by
book-entry transfer, confirmation of such book-entry transfer to the Custodian
or that irrevocable instructions have been given to cause such Shares to be so
transferred, (B) such certifications and payments (including, without
limitation, the Depositary's fees and related charges) and evidence of such
payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of this Deposit Agreement and applicable laws,
(C) if the Depositary so requires, a written order directing the Depositary to
execute and deliver to, or upon the written order of, the person(s) stated in
such order the number of ADSs representing the Shares so deposited, (D) evidence
satisfactory to the Depositary (which may be an opinion of counsel) that all
necessary approvals have been granted by, or there has been compliance with the
rules and regulations of, any applicable governmental agency in the Cayman
Islands, and (E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which provides for
the prompt transfer by any person in whose name the Shares are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Shares or to receive other property in respect of any such deposited
Shares or, in lieu thereof, such indemnity or other agreement as shall be
satisfactory to the Depositary or the Custodian and (ii) if the Shares are
registered in the name of the person on whose behalf they are presented for
deposit, a proxy or proxies entitling the Custodian to exercise voting rights in
respect of the Shares for any and all purposes until the Shares so deposited are
registered in the name of the Depositary, the Custodian or any nominee.
Without limiting any other provision of this Deposit Agreement, the
Depositary shall instruct the Custodian not to, and the Depositary shall not
knowingly, accept for deposit (a) any Restricted Securities except as
contemplated in Section 2.13 or (b) any fractional Shares or fractional
Deposited Securities or (c) a number of Shares or Deposited Securities which
upon application of the ADS to Shares ratio would give rise to fractional ADSs.
No Share shall be accepted for deposit unless accompanied by evidence, if any is
required by the Depositary, that is reasonably satisfactory to the Depositary or
the Custodian that all conditions to such deposit have been satisfied by the
person depositing such Shares under applicable laws and regulations and any
necessary approval has been granted by any applicable governmental body. The
Depositary may issue ADSs against evidence of rights to receive Shares from the
Company, any agent of the Company or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of written blanket
or specific guarantees of ownership of Shares furnished by the Company or any
such custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Shares.
Without limitation of the foregoing, the Depositary shall not knowingly
accept for deposit under this Deposit Agreement any Shares or other Deposited
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Shares or other
Deposited Securities, or any Shares or other Deposited Securities the deposit of
which would violate any provisions of the Memorandum and Articles of Association
of the Company. In addition, and without limitation of the foregoing, the
Depositary and the Custodian will comply with written instructions of the
Company not to accept for deposit 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 the securities
laws of the United States and other jurisdictions.
8
Section 2.4 Registration and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, to a
Share Registrar for transfer and registration of the Shares (as soon as transfer
and registration can be accomplished and at the expense of the person for whom
the deposit is made) in the name of the Depositary, the Custodian or a nominee
of either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a nominee in
each case on behalf of the Holders and Beneficial Owners, at such place or
places as the Depositary or the Custodian shall determine.
Section 2.5 Issuance of ADSs; Execution and Delivery of ADRs. The
Depositary has made arrangements with the Custodian to confirm to the Depositary
(i) that a deposit of Shares has been made pursuant to Section 2.3 hereof, (ii)
that such Deposited Securities have been recorded in the name of the Depositary,
the Custodian or a nominee of either on the Shareholders' register maintained by
or on behalf of the Company by a Share Registrar if registered Shares have been
deposited or, if deposit is made by book-entry transfer, confirmation of such
transfer in the books of a Share Registrar, (iii) that all required documents
have been received, and (iv) the person(s) to whom or upon whose order ADSs are
deliverable in respect thereof and the number of ADSs to be so delivered. Such
notification may be made by letter, cable, telex, SWIFT message or, at the risk
and expense of the person making the deposit, by facsimile or other means of
electronic transmission. Upon receiving such notice from the Custodian, the
Depositary, subject to the terms and conditions of this Deposit Agreement and
applicable laws, shall issue the ADSs representing the Shares so deposited to or
upon the order of the person(s) named in the notice delivered to the Depositary
and, if applicable, shall execute and deliver at its Principal Office Receipt(s)
registered in the name(s) requested by such person(s) and evidencing the
aggregate number of ADSs to which such person(s) are entitled, but only upon
payment to the Depositary of the charges of the Depositary for accepting a
deposit, issuing ADSs and executing and delivering such ADR(s) (in each case, as
set forth in Section 5.9 and Exhibit B hereto) and all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Shares and the issuance of the ADS(s). The Depositary shall only issue ADSs in
whole numbers and deliver, if applicable, ADR(s) evidencing whole numbers of
ADSs. Nothing herein shall prohibit any Pre-Release Transaction upon the terms
set forth in this Deposit Agreement.
Section 2.6 Transfer, Combination and Split-up of ADRs.
(a) Transfer. The Registrar shall, reasonably promptly, register the
transfer of ADRs (and of the ADSs represented thereby) on the books
maintained for such purpose and the Depositary shall, reasonably promptly,
(x) cancel such ADRs and execute new ADRs evidencing the same aggregate
number of ADSs as those evidenced by the ADRs canceled by the Depositary,
(y) cause the Registrar to countersign such new ADRs and (z) Deliver such
new ADRs to or upon the order of the person entitled thereto, if each of
9
the following conditions has been satisfied: (i) the ADRs have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder)
to the Depositary at its Principal Office for the purpose of effecting a
transfer thereof, (ii) the surrendered ADRs have been properly endorsed or
are accompanied by proper instruments of transfer (including signature
guarantees in accordance with standard securities industry practice),
(iii) the surrendered ADRs have been duly stamped (if required by the laws
of the State of New York or of the United States), and (iv) all applicable
fees and charges of, and expenses incurred by, the Depositary (in each
case, as set forth in Section 5.9 and Exhibit B hereto) and all applicable
taxes and governmental charges have been paid, subject, however, in each
case, to the terms and conditions of the applicable ADRs, of the Deposit
Agreement and of applicable laws, in each case as in effect at the time
thereof.
(b) Combination & Split Up. The Registrar shall without unreasonable
delay register the split-up or combination of ADRs (and of the ADSs
represented thereby) on the books maintained for such purpose and the
Depositary shall, reasonably promptly, (x) cancel such ADRs and execute
new ADRs for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by the ADRs cancelled by the
Depositary, (y) cause the Registrar to countersign such new ADRs and (z)
Deliver such new ADRs to or upon the order of the Holder thereof, if each
of the following conditions has been satisfied: (i) the ADRs have been
duly Delivered by the Holder (or by a duly authorized attorney of the
Holder) to the Depositary at its Principal Office for the purpose of
effecting a split-up or combination thereof; and (ii) all applicable fees
and charges of, and expenses incurred by, the Depositary (in each case, as
set forth in Section 5.9 and Exhibit B hereto) and all applicable taxes
and governmental charges have been paid, subject, however, in each case,
to the terms and conditions of the applicable ADRs, of the Deposit
Agreement and of applicable laws, in each case as in effect at the time
thereof.
(c) Co-Transfer Agents. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations
and split-ups of ADRs at designated transfer offices on behalf of the
Depositary and the Depositary shall, as promptly as practicable, notify
the Company of any such appointment. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or persons entitled to
such ADRs and will be entitled to protection and indemnity to the same
extent as the Depositary. Such co-transfer agents may be removed and
substitutes appointed by the Depositary and the Depositary shall, as
promptly as practicable, notify the Company of any such removal or
substitution appointment. Each co-transfer agent appointed under this
Section 2.6 (other than the Depositary) shall give notice in writing to
the Depositary accepting such appointment and agreeing to be bound by the
applicable terms of this Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal of Deposited Securities. The
Holder of ADSs shall be entitled to Delivery (at the Custodian's designated
office) of the Deposited Securities at the time represented by the ADSs upon
satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and if so required by the Depositary, the ADRs
10
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, and (iv) all applicable fees
and charges of, and expenses incurred by, the Depositary (in each case, as set
forth in Section 5.9 and Exhibit B hereto) and all applicable taxes and
governmental charges have been paid, subject, however, in each case, to the
terms and conditions of the ADRs evidencing the surrendered ADSs, of the Deposit
Agreement, of the Company's Memorandum and Articles of Association and of any
applicable laws, and to any provisions of or governing the Deposited Securities,
in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary shall (i) promptly cancel the ADSs Delivered to it (and, if
applicable, the ADRs evidencing the ADSs so Delivered), (ii) direct the
Registrar to record the cancellation of the ADSs so Delivered, and (iii) direct
the Custodian to Deliver (without unreasonable delay) at the Custodian's
designated office the Deposited Securities represented by the ADSs so canceled
together with any certificate or other document of title for the Deposited
Securities, or evidence of the electronic transfer thereof (if available), as
the case may be, to or upon the written order of the person(s) designated in the
order delivered to the Depositary for such purpose, subject however, in each
case, to the terms and conditions of the Deposit Agreement, of the ADRs
evidencing the ADSs so cancelled, of the Memorandum and Articles of Association
of the Company, of any applicable laws, and to the terms and conditions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of the Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary
(in each case, as set forth in Section 5.9 and Exhibit B hereto), (b)
governmental charges and fees and (c) taxes withheld to the person surrendering
the ADSs.
Notwithstanding anything else contained in any ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
11
Section 2.8 Limitations on Issuance and Delivery, Transfer, etc. of ADSs;
Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the
issuance and delivery, registration of issuance, transfer, split-up,
combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or
the Custodian may require (i) payment from the depositor of Shares or
presenter of ADSs or of an ADR of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration
fee with respect thereto (including any such tax or charge and fee with
respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in Section 5.9
and Exhibit B hereto, (ii) the production of proof satisfactory to it as
to the identity and genuineness of any signature or any other matter
contemplated by Section 3.1 hereof, and (iii) compliance with (A) any laws
or governmental regulations relating to the execution and delivery of ADRs
or ADSs or to the withdrawal of Deposited Securities and (B) such
reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of the applicable ADR, this Deposit
Agreement and applicable laws.
(b) Additional Limitations. The issuance of ADSs against deposits of
Shares generally or against deposits of particular Shares may be
suspended, or the deposit of particular Shares may be refused, or the
registration of transfer of ADSs in particular instances may be refused,
or the registration of transfers of ADSs generally may be suspended,
during any period when the transfer books of the Depositary, the
Registrar, a Share Registrar or the Company, including the Shareholders'
registers of the Company, are closed or if any such action is deemed
necessary or advisable by the Depositary (whereupon the Depositary shall
notify the Company) or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange on which the
ADSs or Shares are listed, or under any provision of this Deposit
Agreement or 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 Section 7.9 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of this
Deposit Agreement or any ADR(s) to the contrary, Holders are entitled to
surrender outstanding ADSs to withdraw the Deposited Securities at any
time subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company in accordance with the terms of
this Deposit Agreement or the deposit of Shares in connection with voting
at a Shareholders' meeting or the payment of dividends, (ii) the payment
of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the ADSs or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Instruction I.A.(1) of the General
Instructions to Form F-6 under the Securities Act (as such General
Instructions may be amended from time to time).
12
Section 2.9 Lost ADRs, etc. In case any ADR shall be mutilated, destroyed,
lost, or stolen, the Depositary shall execute, register and deliver a new ADR of
like tenor at the expense of the Holder (a) in the case of a mutilated ADR, in
exchange of and substitution for such mutilated ADR upon cancellation thereof,
or (b) in the case of a destroyed, lost or stolen ADR, in lieu of and in
substitution for such destroyed, lost, or stolen ADR, after the Holder thereof
(i) has submitted to the Depositary a written request for such exchange and
substitution before the Depositary has notice that the ADR has been acquired by
a bona fide purchaser, (ii) has provided such security or indemnity (including
an indemnity bond) as may be required by the Depositary to save it and any of
its agents harmless, and (iii) has satisfied any other reasonable requirements
imposed by the Depositary, including, without limitation, evidence reasonably
satisfactory to the Depositary of such destruction, loss or theft of such ADR,
the authenticity thereof and the Holder's ownership thereof.
Section 2.10 Cancellation and Destruction of Surrendered ADRs; Maintenance
of Records. All ADRs surrendered to the Depositary shall be canceled by the
Depositary. Canceled ADRs shall not be entitled to any benefits under this
Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled, provided the
Depositary maintains a record of all destroyed ADRs. Any ADSs held in book-entry
form (i.e., through accounts at DTC) shall be deemed canceled when the
Depositary causes the number of ADSs evidenced by the Balance Certificate to be
reduced by the number of ADSs surrendered (without the need to physically
destroy the Balance Certificate). The Depositary agrees to maintain records of
all ADRs surrendered and the Shares withdrawn, substitute ADRs delivered and
canceled or destroyed ADRs as required by the laws or regulations governing the
Depositary. Upon the reasonable request of the Company, the Depositary shall
provide a copy of such records of the Company.
Section 2.11 Partial Entitlement ADSs. In the event any Shares are
deposited which entitle the holders thereof to receive a per-share distribution
or other entitlement in an amount different from the Shares then on deposit (the
Shares then on deposit collectively, "Full Entitlement Shares" and the Shares
with different entitlement, "Partial Entitlement Shares"), the Depositary shall
(i) cause the Custodian to hold Partial Entitlement Shares separate and distinct
from Full Entitlement Shares, and (ii) subject to the terms of this Deposit
Agreement, issue ADSs representing Partial Entitlement Shares which are separate
and distinct from the ADSs representing Full Entitlement Shares, by means of
separate CUSIP numbering and legending notations (if necessary) and, if
applicable, by issuing ADRs evidencing such ADSs with applicable notations
thereon ("Partial Entitlement ADSs/ADRs" and "Full Entitlement ADSs/ADRs",
respectively). If and when Partial Entitlement Shares become Full Entitlement
Shares, the Depositary shall (a) give notice thereof to Holders of Partial
Entitlement ADSs and give Holders of Partial Entitlement ADRs the opportunity to
exchange such Partial Entitlement ADRs for Full Entitlement ADRs, (b) cause the
Custodian to transfer the Partial Entitlement Shares into the account of the
Full Entitlement Shares, and (c) take such actions as are necessary to remove
the distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one
hand, and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and
13
Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial Owners of
Full Entitlement ADSs shall be entitled only to the entitlements of Full
Entitlement Shares. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is authorized to take any and all other actions as may be necessary
(including, without limitation, making the necessary notations on ADRs) to give
effect to the terms of this Section 2.11. The Company agrees to give timely
written notice to the Depositary if any Shares issued or to be issued are
Partial Entitlement Shares and shall assist the Depositary with the
establishment of procedures enabling the identification of Partial Entitlement
Shares upon Delivery to the Custodian.
Section 2.12 Certificated/Uncertificated ADSs. Notwithstanding any other
provision of the Deposit Agreement, the Depositary may, at any time and from
time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). When issuing and maintaining Uncertificated ADS(s) under the Deposit
Agreement, the Depositary shall at all times be subject to (i) the standards
applicable to registrars and transfer agents maintaining direct registration
systems for equity securities in New York and issuing uncertificated securities
under New York law, and (ii) the terms of New York law applicable to
uncertificated equity securities. Uncertificated ADSs shall not be represented
by any instruments but shall be evidenced by registration as "uncertificated
securities" in the books and records of the Depositary maintained for such
purpose. Holders of Uncertificated ADSs, that are not subject to any registered
pledges, liens, restrictions or adverse claims of which the Depositary has
notice at such time, shall at all times have the right to exchange the
Uncertificated ADS(s) for Certificated ADS(s) of the same type and class,
subject in each case to applicable laws and any rules and regulations the
Depositary may have established in respect of the Uncertificated ADSs. Holders
of Certificated ADSs shall, if the Depositary maintains a direct registration
system for the ADSs, have the right to exchange the Certificated ADSs for
Uncertificated ADSs upon (i) the due surrender of the Certificated ADS(s) to the
Depositary for such purpose and (ii) the presentation of a written request to
that effect to the Depositary, subject in each case to (a) all liens and
restrictions noted on the ADR evidencing the Certificated ADS(s) and all adverse
claims of which the Depositary then has notice, (b) the terms of the Deposit
Agreement and the rules and regulations that the Depositary may establish for
such purposes hereunder, (c) applicable laws, and (d) payment of the Depositary
fees and expenses applicable to such exchange of Certificated ADS(s) for
Uncertificated ADS(s). Uncertificated ADSs shall in all respects be identical to
Certificated ADS(s) of the same type and class, except that (i) no ADR(s) shall
be, or shall need to be, issued to evidence Uncertificated ADS(s), (ii)
Uncertificated ADS(s) shall, subject to the terms of the Deposit Agreement, be
transferable upon the same terms and conditions as uncertificated securities
under New York law, (iii) the ownership of Uncertificated ADS(s) shall be
recorded on the books of the Depositary maintained for such purpose and evidence
of such ownership shall be reflected in periodic statements provided by the
Depositary to the Holder(s) in accordance with applicable New York law, (iv) the
Depositary may from time to time, upon notice to the Holders of Uncertificated
ADSs affected thereby, establish rules and regulations, and amend or supplement
existing rules and regulations, as may be deemed reasonably necessary to
maintain Uncertificated ADS(s) on behalf of Holders, provided that (a) such
rules and regulations do not conflict with the terms of the Deposit Agreement
and applicable laws, and (b) the terms of such rules and regulations are readily
available to Holders upon request, (v) the Uncertificated ADS(s) shall not be
14
entitled to any benefits under this Deposit Agreement or be valid or enforceable
for any purpose against the Depositary or the Company unless such Uncertificated
ADS(s) is/are registered on the books of the Depositary maintained for such
purpose, (vi) the Depositary may, in connection with any deposit of Shares
resulting in the issuance of Uncertificated ADSs and with any transfer, pledge,
release and cancellation of Uncertificated ADSs, require the prior receipt of
such documentation as the Depositary may deem reasonably appropriate, and (vii)
upon termination of the Deposit Agreement, the Depositary shall not require
Holders of Uncertificated ADSs to affirmatively instruct the Depositary before
remitting proceeds from the sale of the Deposited Securities represented by such
Holders' Uncertificated ADSs under the terms of Section 6.2 of the Deposit
Agreement. When issuing ADSs under the terms of the Deposit Agreement,
including, without limitation, issuances pursuant to Sections 2.5, 4.2, 4.3,
4.4, 4.5 and 4.11, the Depositary may in its discretion determine to issue
Uncertificated ADSs rather than Certificated ADSs, unless otherwise specifically
instructed by the applicable Holder to issue Certificated ADSs. All provisions
and conditions of the Deposit Agreement shall apply to Uncertificated ADSs to
the same extent as to Certificated ADSs, except as contemplated by this Section
2.12. The Depositary is authorized and directed to take any and all actions and
establish any and all procedures deemed reasonably necessary to give effect to
the terms of this Section 2.12. Any references in the Deposit Agreement or any
ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless the
context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.12 and except as required by
applicable laws, the Uncertificated ADSs shall be treated as ADSs issued and
outstanding under the terms of the Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the Deposit
Agreement (other than this Section 2.12) and (b) the terms of this Section 2.12,
the terms and conditions set forth in this Section 2.12 shall be controlling and
shall govern the rights and obligations of the parties to the Deposit Agreement
pertaining to the Uncertificated ADSs.
Section 2.13 Restricted ADSs. The Depositary shall, at the request and
expense of the Company, establish procedures enabling the deposit hereunder of
Shares that are Restricted Securities in order to enable the holder of such
Shares to hold its ownership interests in such Restricted Shares in the form of
ADSs issued under the terms hereof (such Shares, "Restricted Shares").
Restricted ADSs shall only be issued in physical form, registered in the name of
the Holder of Restricted ADSs. Upon receipt of a written request from the
Company to accept Restricted Shares for deposit hereunder, the Depositary agrees
to establish procedures permitting the deposit of such Restricted Shares and the
issuance of ADSs representing such deposited Restricted Shares (such ADSs, the
"Restricted ADSs," and the ADRs evidencing such Restricted ADSs, the "Restricted
ADRs"). The Company shall assist the Depositary in the establishment of such
procedures and agrees that it shall take all steps necessary and reasonably
satisfactory to the Depositary to insure that the establishment of such
procedures does not violate the provisions of the Securities Act or any other
applicable laws. The depositors of such Restricted Shares and the holders of the
Restricted ADSs may be required prior to the deposit of such Restricted Shares,
the transfer of the Restricted ADRs and the Restricted ADSs evidenced thereby or
the withdrawal of the Restricted Shares represented by Restricted ADSs to
provide such written certifications or agreements as the Depositary or the
Company may require. The Company shall provide to the Depositary in writing the
legend(s) to be affixed to the Restricted ADRs, which legends shall (i) be in a
form reasonably satisfactory to the Depositary and (ii) contain the specific
15
circumstances under which the Restricted ADRs and the Restricted ADSs
represented thereby may be transferred or the Restricted Shares withdrawn. The
Restricted ADSs issued upon the deposit of Restricted Shares shall be separately
identified on the books of the Depositary and the Restricted Shares so deposited
shall be held separate and distinct from the other Deposited Securities held
hereunder. The Restricted Shares and the Restricted ADSs shall not be eligible
for Pre-Release Transactions. The Restricted ADSs shall not be eligible for
inclusion in any book-entry settlement system, including, without limitation,
DTC, and shall not in any way be fungible with the ADSs issued under the terms
hereof that are not Restricted ADSs. The Restricted ADRs and the Restricted ADSs
evidenced thereby shall be transferable only by the Holder thereof upon delivery
to the Depositary of (i) all documentation otherwise contemplated by this
Deposit Agreement and (ii) an opinion of counsel reasonably satisfactory to the
Depositary setting forth, inter alia, the conditions upon which the Restricted
ADR presented is, and the Restricted ADSs evidenced thereby are, transferable by
the Holder thereof under applicable securities laws and the transfer
restrictions contained in the legend set forth on the Restricted ADR presented
for transfer. Except as set forth in this Section 2.13 and except as required by
applicable laws, the Restricted ADRs and the Restricted ADSs evidenced thereby
shall be treated as ADRs and ADSs issued and outstanding under the terms of the
Deposit Agreement. In the event that, in determining the rights and obligations
of parties hereto with respect to any Restricted ADSs, any conflict arises
between (a) the terms of this Deposit Agreement (other than this Section 2.13)
and (b) the terms of (i) this Section 2.13 or (ii) the applicable Restricted
ADR, the terms and conditions set forth in this Section 2.13 and of the
Restricted ADR shall be controlling and shall govern the rights and obligations
of the parties to this Deposit Agreement pertaining to the deposited Restricted
Shares, the Restricted ADSs and Restricted ADRs.
If the Restricted ADRs, the Restricted ADSs and the Restricted Shares
are no longer Restricted Securities, the Depositary, upon receipt of (x) an
opinion of counsel reasonably satisfactory to the Depositary setting forth,
inter alia, that the Restricted ADRs, the Restricted ADSs and the Restricted
Shares are not as of such time Restricted Securities, and (y) instructions from
the Company to remove the restrictions applicable to the Restricted ADRs, the
Restricted ADSs and the Restricted Shares, shall (i) eliminate the distinctions
and separations between the applicable Restricted Shares held on deposit under
this Section 2.13 and the other Shares held on deposit under the terms of the
Deposit Agreement that are not Restricted Shares, (ii) treat the newly
unrestricted ADRs and ADSs on the same terms as, and fully fungible with, the
other ADRs and ADSs issued and outstanding under the terms of the Deposit
Agreement that are not Restricted ADRs or Restricted ADSs, (iii) take all
actions necessary to remove any distinctions, limitations and restrictions
previously existing under this Section 2.13 between the applicable Restricted
ADRs and Restricted ADSs, respectively, on the one hand, and the other ADRs and
ADSs that are not Restricted ADRs or Restricted ADSs, respectively, on the other
hand, including, without limitation, by making the newly-unrestricted ADSs
eligible for Pre-Release Transactions and for inclusion in the applicable
book-entry settlement systems.
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
this Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of a Share Registrar) as the Depositary or the Custodian may
reasonably deem necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations under this
Deposit Agreement and the applicable ADR(s). The Depositary and the Registrar,
as applicable, may withhold the execution or delivery or registration of
transfer of any ADR or ADS or the distribution or sale of any dividend or
distribution of rights or of the proceeds thereof or, to the extent not limited
by the terms of Section 7.9 hereof, the delivery of any Deposited Securities
until such proof or other information is filed or such certifications are
executed, or such representations and warranties are made, or such other
documentation or information is provided, in each case to the Depositary's, the
Registrar's and the Company's reasonable satisfaction. The Depositary shall
provide the Company, in a timely manner, with copies or originals if necessary
and appropriate of (i) any such proofs of citizenship or residence, taxpayer
status, or exchange control approval or copies of written representations or
warranties which it receives from Holders and Beneficial Owners, and (ii) any
other information or documents which the Company may reasonably request and
which the Depositary shall request and receive from any Holder or Beneficial
Owner or any person presenting Shares for deposit or ADSs for cancellation,
transfer or withdrawal. Nothing herein shall obligate the Depositary to (i)
obtain any information for the Company if not provided by the Holders or
Beneficial Owners, except to the extent that the Depositary is in possession of
such information and that the Depositary is not subject to any confidentiality
undertaking with respect to such information and not prohibited by law to
release such information, or (ii) verify or vouch for the accuracy of the
information so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or other governmental charges, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the deposit of
Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, split-up or combination of ADRs and (subject to Section 7.9) the
withdrawal of Deposited Securities until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
17
indemnify the Depositary, the Company, the Custodian, and any of their agents,
officers, employees and Affiliates for, and to hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
Section 3.3 Representations and Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, outstanding, fully paid, non-assessable and
legally obtained by such person, (ii) all preemptive (and similar) rights, if
any, with respect to such Shares have been validly waived or exercised, (iii)
the person making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities (except as contemplated in Section 2.13) and (vi) the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized (but not obligated),
at the cost and expense of the person depositing Shares, to take any and all
actions necessary to correct the consequences thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable laws, rules and requirements of The Stock Exchange of Hong Kong
Limited and NYSE, and any other stock exchange on which the Shares or ADSs are,
or will be, registered, traded or listed or the Memorandum and Articles of
Association of the Company, which are made to provide information, inter alia,
as to the capacity in which such Holder or Beneficial Owner owns ADSs (and
Shares, as the case may be) and regarding the identity of any other person(s)
interested in such ADSs and the nature of such interest and various other
matters, whether or not they are Holders and/or Beneficial Owners at the time of
such request. The Depositary agrees to use its reasonable efforts to forward,
upon the request of the Company and at the Company's expense, any such request
from the Company to the Holders and to forward, as promptly as practicable, to
the Company any such responses to such requests received by the Depositary and
to use its reasonable efforts, at the Company's request and expense, to assist
the Company in obtaining such information with respect to the ADSs, provided
that nothing herein shall be interpreted as obligating the Depositary to provide
or obtain any such information (a) not provided to the Depositary by such Holder
and/or Beneficial Owner; or (b) the disclosure of which is prohibited by
applicable laws. The Company may also request the Depositary to furnish the
Company, at the Company's expense, with such information or documents as the
Company may require (to the extent the Depositary is in possession of such
information and the disclosure of such information is permitted by applicable
laws) in order to promote compliance with the provisions of or governing the
Deposited Securities and under the Company's Memorandum and Articles of
Association.
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Section 3.5 Ownership Restrictions. Notwithstanding any other provision in
this Deposit Agreement or any ADR, the Company may restrict transfers of the
Shares where such transfer might result in ownership of Shares exceeding limits
imposed by applicable laws or the Memorandum and Articles of Association of the
Company. The Company may also restrict, in such manner as it deems appropriate,
transfers of the ADSs where such transfer may result in the total number of
Shares represented by the ADSs owned by a single Holder or Beneficial Owner to
exceed any such limits. The Company may, in its sole discretion but subject to
applicable laws, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of ADSs, the removal or limitation of voting
rights or mandatory sale or disposition on behalf of a Holder or Beneficial
Owner of the Shares represented by the ADSs held by such Holder or Beneficial
Owner in excess of such limitations, if and to the extent such disposition is
permitted by applicable laws and the Memorandum and Articles of Association of
the Company.
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any other entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (on the terms described in Section 4.8), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
distribute promptly the amount thus received (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary (in each case, as set forth
in Section 5.9 and Exhibit B hereto); (b) governmental charges and (c) taxes
withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date. The Depositary
shall distribute only such amount, however, as can be distributed without
attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs outstanding at the time of the
next distribution. If the Company, the Custodian or the Depositary is required
to withhold and does withhold from any cash dividend or other cash distribution
in respect of any Deposited Securities an amount on account of taxes, duties or
other governmental charges, the amount distributed to Holders on the ADSs
representing such Deposited Securities shall be reduced accordingly. Such
withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority. Evidence of payment thereof
by the Company shall be forwarded by the Company to the Depositary upon request.
The Depositary or the Custodian, as the case may be, will forward to the Company
or its agent such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental agencies, and the Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for Holders of ADSs.
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Section 4.2 Distribution in Shares. If any distribution upon any Deposited
Securities consists of a dividend in, or free distribution of, Shares, the
Company shall cause such Shares to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
their respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9 and either (i) the Depositary shall, subject to Section
5.9 hereof, distribute to the Holders as of the ADS Record Date in proportion to
the number of ADSs held as of the ADS Record Date, additional ADSs to which they
are entitled, which represent in the aggregate the number of Shares received as
such dividend, or free distribution, subject to the other terms of this Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary in each case, as set forth in
Section 5.9 and Exhibit B hereto, (b) governmental fees and (c) taxes), or (ii)
if additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interests in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary, in
each case, as set forth in Section 5.9 and Exhibit B hereto, (b) governmental
fees and (c) taxes). In lieu of delivering fractional ADSs, the Depositary shall
sell the number of Shares or ADSs, as the case may be, represented by the
aggregate of such fractions and distribute the net proceeds upon the terms
described in Section 4.1. In the event that the Depositary determines that any
distribution in property (including Shares) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or, if the
Company in the fulfillment of its obligation under Section 5.7 hereof, has
furnished an opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), the Depositary
may, following consultation with the Company, dispose of all or a portion of
such property (including Shares and rights to subscribe therefor) in such
amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of (a) the applicable fees
and charges of, and expenses incurred by, the Depositary in each case, as set
forth in Section 5.9 and Exhibit B hereto), (b) governmental charges and (c)
taxes to Holders entitled thereto upon the terms described in Section 4.1. The
Depositary shall hold and/or distribute any unsold balance of such property in
accordance with the provisions of this Deposit Agreement. To the extent that new
ADSs representing such Shares are not created and such Shares are not sold or
otherwise distributed in accordance with this section, each ADS shall
thenceforth also represent such additional shares distributed upon the Deposited
Securities represented thereby.
Section 4.3 Elective Distributions in Cash or Shares. Whenever the Company
intends to make a distribution payable at the election of the holders of Shares
in cash or in additional Shares other than as provided in Sections 4.1 or 4.2,
the Company shall give such timely notice thereof to the Depositary as is
reasonably practicable having regard to all applicable regulatory and other
requirements to which the Company is subject from time to time, stating whether
or not it wishes such elective distribution to be made available to Holders of
ADSs. Upon timely receipt of notice indicating that the Company wishes such
20
elective distribution to be made available to Holders of ADSs, the Depositary
shall consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such elective distribution available to the Holders of ADSs. The
Depositary shall make such elective distribution available to Holders only if
(i) the Company shall have timely requested that the elective distribution be
made available to Holders, (ii) the Depositary shall have determined that such
distribution is reasonably practicable, and (iii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the Holders, on the basis of the same
determination as is made in the Cayman Islands in respect of the Shares for
which no election is made, either (X) cash upon the terms described in Section
4.1 or (Y) additional ADSs representing such additional Shares upon the terms
described in Section 4.2. If the above conditions are satisfied, the Depositary
shall establish an ADS Record Date (on the terms described in Section 4.9) and
establish procedures to enable Holders to elect the receipt of the proposed
distribution in cash or in additional ADSs. The Company shall assist the
Depositary in establishing such procedures to the extent necessary. If a Holder
elects to receive the proposed distribution (X) in cash, the distribution shall
be made upon the terms described in Section 4.1, or (Y) in ADSs, the
distribution shall be made upon the terms described in Section 4.2. Nothing
herein shall obligate the Depositary to make available to Holders a method to
receive the elective distribution in Shares (rather than ADSs) if the conditions
above are not satisfied. There can be no assurance that Holders generally, or
any Holder in particular, will be given the opportunity to receive elective
distributions on the same terms and conditions as the holders of Shares.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(a) Distribution to ADS Holders. Whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe
for additional Shares, the Company shall give such timely notice thereof
to the Depositary as is reasonably practicable having regard to all
applicable regulatory and other requirements to which the Company is
subject from time to time, stating whether or not it wishes such rights to
be made available to Holders of ADSs. Upon timely receipt of a notice
indicating that the Company wishes such rights to be made available to
Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make
such rights available to the Holders. The Depositary shall make such
rights available to Holders only if (i) the Company shall have timely
requested that such rights be made available to Holders, (ii) the
Depositary shall have received satisfactory documentation within the terms
of Section 5.7, and (iii) the Depositary shall have determined that such
distribution of rights is reasonably practicable. In the event any of the
conditions set forth above are not satisfied or if the Company requests
that the rights not be made available to Holders of ADSs, the Depositary
shall proceed with the sale of the rights as contemplated in Section
4.4(b) below. In the event all conditions set forth above are satisfied,
the Depositary shall establish an ADS Record Date (upon the terms
described in Section 4.9) and establish procedures to (x) distribute
rights to purchase additional ADSs (by means of warrants or otherwise) in
proportion to the number of ADSs held, (y) to enable the Holders or
holders of warrants, as the case may be, to exercise such rights or
warrants (upon payment of the subscription price and of the applicable (a)
fees and charges of, and expenses incurred by, the Depositary (in each
21
case, as set forth in Section 5.9 and Exhibit B hereto), (b) governmental
charges and (c) taxes) and, if applicable, to enable Holders or holders of
warrants, as the case may be, to sell or transfer such rights or warrants,
as the case may be, and (z) to deliver ADSs upon the valid exercise of
such rights. The Company shall assist the Depositary to the extent
necessary in establishing such procedures. Nothing herein shall obligate
the Depositary to make available to the Holders a method to exercise
rights to subscribe for Shares (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request the
Depositary to make the rights available to Holders or requests that the
rights not be made available to Holders, (ii) the Depositary fails to
receive satisfactory documentation within the terms of Section 5.7 or
determines it is not reasonably practicable to make the rights available
to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall, after consultation with
the Company, determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon
such terms (including public or private sale) as it may deem practicable.
The Depositary shall consult with the Company to the extent necessary to
determine such legality and practicability. The Depositary shall, upon
such sale, convert and distribute proceeds of such sale (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary (in each
case, as set forth in Section 5.9 and Exhibit B hereto), (b) governmental
charges and (c) taxes) upon the terms set forth in Section 4.1.
(c) Lapse of Rights. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) or to
arrange for the sale of the rights upon the terms described in Section
4.4(b), the Depositary shall allow such rights to lapse.
Neither the Depositary nor the Company shall be responsible for (i) any
failure to determine that it may be lawful or practicable to make such rights
available to Holders in general or any Holders in particular, or (ii) any
foreign exchange exposure or loss incurred in connection with such sale or
exercise. The Depositary shall not be responsible for the content of any
materials forwarded to the Holders on behalf of the Company in connection with
the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable laws) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable laws) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary with opinion(s) of counsel for
the Company in the United States and counsel to the Company in any other
applicable country in which rights would be distributed, in each case reasonably
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws.
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In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any registration
statement in respect of any rights or Shares or other securities to be acquired
upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares.
(a) Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Shares or rights to
purchase additional Shares, the Company shall give timely notice thereof
to the Depositary and shall indicate whether or not it wishes such
distribution to be made to Holders of ADSs. Upon receipt of a notice
indicating that the Company wishes such distribution be made to Holders of
ADSs, the Depositary shall consult with the Company, and the Company shall
assist the Depositary, to determine whether such distribution to Holders
is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to
make such distribution to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7, and (iii) the
Depositary, after consulting with the Company, shall have determined that
such distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of
the Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary shall
distribute the property so received to the Holders of record, as of the
ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary
(in each case, as set forth in Section 5.9 and Exhibit B hereto), (ii) net
of governmental charges and (iii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed
and deposited, in such amounts and in such manner (including public or
private sale) as the Depositary may deem practicable or necessary to
satisfy any taxes (including applicable interest and penalties) or other
governmental charges applicable to the distribution.
23
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory documentation
within the terms of Section 5.7, or (iii) the Depositary determines that
all or a portion of such distribution is not reasonably practicable, the
Depositary shall sell or cause such property to be sold in a public or
private sale, at such place or places and upon such terms as it may deem
practicable and shall (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary, in each case, as set forth in
Section 5.9 and Exhibit B hereto, (b) governmental charges and (c) taxes)
to the Holders as of the ADS Record Date upon the terms of Section 4.1. If
the Depositary is unable to sell such property, the Depositary may dispose
of such property for the account of the Holders in any way it deems
reasonably practicable under the circumstances.
(d) Neither the Depositary nor the Company shall be responsible for
(i) any failure to determine that it may be lawful or practicable to make
the property described in this Section 4.5 available to Holders in general
or any Holders in particular, or (ii) any foreign exchange exposure or
loss incurred in connection with the sale or disposal or such property.
Section 4.6 Distributions with Respect to Deposited Securities in Bearer
Form. Subject to the terms of this Article IV, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of ADSs with
respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
Section 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
such timely notice thereof to the Depositary as is reasonably practicable having
regard to all applicable regulatory and other requirements to which the Company
is subject from time to time, which notice shall set forth the particulars of
the proposed redemption. Upon timely receipt of (i) such notice and (ii)
satisfactory documentation given by the Company to the Depositary within the
terms of Section 5.7, and only if the Depositary shall have determined that such
proposed redemption is reasonably practicable, the Depositary shall provide to
each Holder a notice setting forth the intended exercise by the Company of the
redemption rights and any other particulars set forth in the Company's notice to
the Depositary. The Depositary shall instruct the Custodian to present to the
Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary (in each case, as set
forth in Section 5.9 and Exhibit B hereto), (b) governmental charges, and (c)
taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by Holders
thereof and the terms set forth in Sections 4.1 and 6.2 hereof. If less than all
outstanding Deposited Securities are redeemed, the ADSs to be retired will be
selected by lot or on a pro rata basis, as may be determined by the Depositary.
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The redemption price per ADS shall be the dollar equivalent of the per share
amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s)
ratio) upon the redemption of the Deposited Securities represented by ADSs
(subject to the terms of Section 4.8 hereof and the applicable fees and charges
of, and expenses incurred by, the Depositary (in each case, as set forth in
Section 5.9 and Exhibit B hereto), governmental charges and taxes) multiplied by
the number of Deposited Securities represented by each ADS redeemed.
Section 4.8 Conversion of Foreign Currency. Whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the reasonable judgment of the Depositary can at such time be
converted on a practicable basis, by sale or in any other manner that it may
determine in accordance with applicable laws, into Dollars transferable to the
United States and distributable to the Holders entitled thereto, the Depositary
shall, reasonably promptly, convert or cause to be converted, by sale or in any
other manner that it may determine, such Foreign Currency into Dollars, and
shall distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses incurred in such conversion and any expenses incurred on
behalf of the Holders in complying with currency exchange control or other
governmental requirements) to Holders entitled thereto in accordance with the
terms of the applicable sections of this Deposit Agreement. If the Depositary
shall have distributed warrants or other instruments that entitle the holders
thereof to such Dollars, the Depositary shall distribute such Dollars to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem desirable acting in
good faith. In no event, however, shall the Depositary be obligated to make such
a filing.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of proceeds
of such conversion received by the Depositary is not reasonably practicable or
lawful, or if any approval or license of any governmental authority or agency
thereof that is required for such conversion, transfer and distribution is
denied or, in the good faith opinion of the Depositary, not obtainable at a
reasonable cost or within a reasonable period, the Depositary may, in its
discretion, (i) make such conversion and distribution in Dollars to the Holders
for whom such conversion, transfer and distribution is lawful and practicable,
(ii) distribute the Foreign Currency (or an appropriate document evidencing the
right to receive such Foreign Currency) to Holders for whom this is lawful and
practicable or (iii) hold (or cause the Custodian to hold) such Foreign Currency
(without liability for interest thereon) for the respective accounts of the
Holders entitled to receive the same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
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determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights, or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall, after
consultation with the Company, fix a record date (the "ADS Record Date") for the
determination of the Holders of ADSs who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each ADS. The
Depositary shall make reasonable efforts to establish the ADS Record Date as
closely as possible to the applicable record date for the Deposited Securities
(if any) set by the Company in Hong Kong. Subject to applicable laws and the
provisions of Section 4.1 through 4.8 and to the other terms and conditions of
this Deposit Agreement, only the Holders at the close of business in New York on
such ADS Record Date shall be entitled to receive such distribution, to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
Section 4.10 Voting of Deposited Securities. As soon as practicable after
receipt of notice of any meeting at which the holders of Deposited Securities
are entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of consent or proxy in accordance with Section 4.9.
The Depositary shall, as soon as practicable, if requested by the Company in
writing in a timely manner, at the Company's expense and provided no U.S. legal
prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxy, (b) a statement that the
Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable laws, the provisions of this Deposit Agreement, the
Memorandum and Articles of Association of the Company and the provisions of or
governing the Deposited Securities (which provisions, if any, shall be
summarized in pertinent part by the Company), to instruct the Depositary as to
the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by such Holder's ADSs, and (c) a brief statement as to
the manner in which such voting instructions may be given, including an express
indication that such instructions may be given or deemed given in accordance
with the last sentence of the third paragraph of this Section 4.10 if no
instruction is received, to the Depositary to give a discretionary proxy to a
person designated to the Company. For avoidance of doubt, the Depositary shall
have no obligation to take any action if it shall determine, in its reasonable
opinion and having used its best efforts to ensuring the notice period is kept
as short as is reasonably practicable, that inadequate notice has been given by
the Company having regard to all relevant facts and circumstances then
prevailing (including without limitation the nature of the subject vote or
meeting). It being understood that advance notice of at least 28 calendar days
prior to the date of the Company's annual general meeting will constitute
sufficient notice for this purpose. Voting instructions may be given only in
respect of a number of ADSs representing an integral number of Deposited
Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record
Date of voting instructions in the manner specified by the Depositary, the
Depositary shall endeavor, insofar as practicable and permitted under applicable
laws, the provisions of this Deposit Agreement, the Memorandum and Articles of
Association of the Company and the provisions of the Deposited Securities, to
vote, or cause the Custodian to vote, the Deposited Securities (in person or by
proxy) represented by such Holder's ADSs in accordance with such voting
instructions.
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Notwithstanding anything contained in the Deposit Agreement or any ADR,
the Depositary may, to the extent not prohibited by laws or regulations, or by
the requirements of the stock exchange on which the ADSs may be listed, in lieu
of distribution of the materials provided to the Depositary in connection with
any meeting of, or solicitation of consents or proxies from, holders of
Deposited Securities distribute to Holders a notice that provides Holders with,
or otherwise publicize to Holders, instructions on how to retrieve such
materials or receive such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for requesting
copies of the materials).
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of for purposes of establishing a quorum or otherwise, the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions (including those received in electronic form) timely
received from Holders or as otherwise contemplated herein. If the Depositary
timely receives voting instructions from a Holder which fail to specify the
manner in which the Depositary is to vote the Deposited Securities represented
by such Holder's ADSs, the Depositary will deem such Holder (unless otherwise
specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting instructions.
Notwithstanding the foregoing sentence, if (i) the Company timely provides
notice to the Depositary pursuant to the provision of the second sentence of
this Section 4.10 and (ii) no instructions are received by the Depositary from a
Holder with respect to any of the Deposited Securities represented by such
Holder's ADSs on or before the date established by the Depositary for such
purpose, the Depositary shall deem such Holder to have instructed the Depositary
to give a discretionary proxy to a person designated by the Company with respect
to such Deposited Securities and the Depositary shall give a discretionary proxy
to a person designated by the Company to vote such Deposited Securities;
provided, however, that no such instruction shall be deemed given and no such
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 as promptly as practicable in writing, if applicable) that (x) the
Company does not wish such proxy given, (y) the Company is aware that
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares; provided, further, that the Company
will have no liability to any Holder or Beneficial Owner resulting from such
notification.
Notwithstanding anything else contained herein, the Depositary shall, if
so requested in writing by the Company, represent all Deposited Securities
(whether or not voting instructions have been received in respect of such
Deposited Securities from Holders as of the ADS Record Date) for the sole
purpose of establishing quorum at a meeting of Shareholders.
Notwithstanding any other provision in this Deposit Agreement, the
Company's board of directors may, pursuant to the provisions of or governing the
Deposited Securities, suspend the voting rights of any Deposited Securities. If
the Company's board of directors suspends such rights, the Company will promptly
provide a notice to the Depositary, specifying (i) the identity of the Holder or
Beneficial Owner to be disenfranchised of its voting rights with respect to
ADSs, (ii) the matters upon which such Holder or Beneficial Owner may not vote
27
or instruct the Depositary or Custodian to vote the Deposited Securities and
(iii) instructions to the Depositary with respect to such other actions as it
may deem necessary or desirable to enforce the restrictions on the exercise of
voting rights set forth in the preceding sentence. The Depositary will use all
reasonable efforts to comply with such Company instructions (provided such
instructions are in compliance with applicable laws), and Holders and Beneficial
Owners of ADSs agree to comply with any Company instructions in respect of any
such restrictions or instructions.
Notwithstanding anything else contained in this Deposit Agreement or any
ADR, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so reasonably requested by the
Depositary.
There can be no assurance that Holders or Beneficial Owners generally or
any Holder or Beneficial Owner in particular will receive the notice described
above with sufficient time to enable the Holder to return voting instructions to
the Depositary in a timely manner.
Subject to the applicable laws or rules of any securities exchange on
which the Deposited Securities are listed or traded, at least three (3) days
prior to the date of such meeting, the Depositary shall, if requested and at the
expense of the Company, deliver to the Company copies of all voting instructions
received from Holders, if any, in accordance with which the Depositary will
vote, or cause the Custodian to vote, the Deposited Securities represented by
the ADSs at such meeting.
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the ADSs shall, subject to the terms of this Deposit Agreement,
and applicable laws, including any applicable provisions of the Securities Act
and the Exchange Act, thenceforth represent the new Deposited Securities so
received, unless additional or new ADSs are created pursuant to the following
sentence. The Depositary may, with the Company's approval, and shall, if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company reasonably satisfactory to the
Depositary that such distributions are not in violation of any applicable laws
or regulations, issue additional ADSs as in the case of a stock dividend on the
Shares, or call for the surrender of outstanding ADRs to be exchanged for new
ADRs, in either case, as well as in the event of newly deposited Shares, with
necessary modifications to the form of ADR contained in Exhibit A hereto,
specifically describing such new Deposited Securities or corporate change. The
Company agrees to, jointly with the Depositary, amend the Registration Statement
on Form F-6 as filed with the Commission to permit the issuance of such new form
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of ADRs. Notwithstanding the foregoing, in the event that any security so
received may not be lawfully distributed to some or all Holders in the
reasonable judgment of the Depositary after consultation with the Company, the
Depositary may, with the Company's approval, and shall, if the Company requests,
subject to receipt of an opinion of Company's counsel reasonably satisfactory to
the Depositary that such action is not in violation of any applicable laws or
regulations, sell such securities at public or private sale, at such place or
places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary, in each case, as set forth in Section 5.9 and
Exhibit B hereto, (b) governmental charges and (c) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. Neither the
Depositary nor the Company shall be responsible for (i) any failure to determine
that it may be lawful or feasible to make such securities available to Holders
in general or to any Holder in particular, (ii) any foreign exchange exposure or
loss incurred in connection with such sale, or (iii) any liability to the
purchaser of such securities. As soon as reasonably practicable following
receipt of notice of the occurrence of any such change, conversion or exchange
covered by this Section in respect of the Deposited Securities, the Depositary
shall, subject to applicable laws, give notice thereof in writing, at the
Company's expense, to all Holders.
Section 4.12 Available Information. The Company is subject to the periodic
reporting requirements of the Exchange Act and, accordingly, is required to file
or submit certain reports with the Commission. These reports can be retrieved
from the Commission's website (▇▇▇.▇▇▇.▇▇▇) and can be inspected and copied at
the public reference facilities maintained by the Commission located (as of the
date of the Deposit Agreement) at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇.
Section 4.13 Reports. The Depositary shall make available for inspection
by Holders at its Principal Office any reports and communications, including any
proxy soliciting materials, received from the Company which are both (a)
received by the Depositary, the Custodian, or the nominee of either of them as
the holder of the Deposited Securities and (b) made generally available to the
holders of such Deposited Securities by the Company. The Depositary shall also
provide to Holders copies of such reports when furnished by the Company pursuant
to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of ADSs of all Holders.
Section 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
29
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of ADSs may be required from time
to time, and in a timely manner, to file such proof of taxpayer status,
residence and beneficial ownership (as applicable), to execute such certificates
and to make such representations and warranties, or to provide any other
information or documents, as the Depositary or the Custodian may deem necessary
or proper to fulfill the Depositary's or the Custodian's obligations under
applicable laws. The Depositary and the Company shall have no obligation or
liability to any person if any Holder or Beneficial Owner fails to provide such
information or if such information does not reach relevant tax authorities in
time for any Holder or Beneficial Owner to obtain the benefit of any tax treaty.
The Holders and Beneficial Owners shall indemnify the Depositary, the Company,
the Custodian and any of their respective directors, employees, agents and
Affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution any
amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form reasonably
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary or the
Custodian, as applicable. Neither the Depositary nor the Custodian shall be
liable for the failure by any Holder or Beneficial Owner to obtain the benefits
of credits on the basis of non-U.S. tax paid against such Holder's or Beneficial
Owner's income tax liability.
Notwithstanding any other provision of this Deposit Agreement, before
making any distribution or other payment on any Deposited Securities, the
Company or its agent shall make such deductions (if any) which, by the laws of
the Cayman Islands, the Company or its agent is required to make in respect of
any income, capital gains or other taxes and the Company or its agent may also
deduct the amount of any tax or governmental charges payable by the Company or
its agent or for which the Company or its agent might be made liable in respect
of such distribution or other payment or any document signed in connection
therewith. In making such deductions, the Company and its agent shall have no
obligation to any Holder or Beneficial Owner to apply a rate under any treaty or
other arrangement between the Cayman Islands and the country within which such
Holder or Beneficial Owner is resident unless such Holder or Beneficial Owner
has timely provided to the Company or its agent evidence of the residency of
such Holder or Beneficial Owner that is accepted by the relevant tax authorities
of the Cayman Islands. The Depositary is under no obligation to provide the
Holders and Beneficial Owners with any information about the tax status of the
30
Company (other than as specified below). The Depositary shall not incur any
liability for any tax consequences that may be incurred by Holders and
Beneficial Owners on account of their ownership of the ADSs, including without
limitation, tax consequences resulting from the Company (or any of its
subsidiaries) being treated as a "Foreign Personal Holding Company," or as a
"Passive Foreign Investment Company" (in each case as defined in the U.S.
Internal Revenue Code and the regulations issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, the City of New York, an
office and facilities for the issuance and delivery of ADSs, registration of
issuances, registration of transfers, combination and split-up of ADSs, and if
applicable to countersign ADRs evidencing the ADSs so issued, transferred,
combined or split-up, and the surrender of ADSs for the purpose of withdrawal of
Deposited Securities in accordance with the provisions of this Deposit
Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of ADSs which at all reasonable times shall be open for inspection by
the Company and by the Holders, provided that such inspection shall not be, to
the Registrar's knowledge, for the purpose of communicating with Holders in the
interest of a business or object other than the business of the Company or other
than a matter related to this Deposit Agreement or the ADSs.
Upon notice to the Company, the Registrar may close the transfer books
with respect to the ADSs, at any time or from time to time, but only for such
duration as the Registrar reasonably determines to be necessary or essential for
the due discharge of its obligations, or at the reasonable written request of
the Company subject, in all cases, to Section 7.9 hereof.
If any ADSs are listed on one or more stock exchanges or automated
quotation systems in the United States, the Depositary shall act as Registrar
or, with the approval of the Company, appoint a Registrar or one or more
co-registrars for registration of ADRs and transfers, combinations and
split-ups, and to countersign such ADRs in accordance with any requirements of
such exchange or exchanges or system or systems. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary after
consultation with the Company or upon the reasonable request of the Company.
Section 5.2 Exoneration. The Depositary and the Company undertake to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no implied covenants or obligations shall be read into
this Deposit Agreement against the Depositary or the Company. Neither the
Depositary nor the Company shall be obligated to do or perform any act which is
inconsistent with the provisions of this Deposit Agreement or incur any
liability (i) if the Depositary or the Company shall be prevented or forbidden
from, or delayed in, doing or performing any act or thing required by the terms
of this Deposit Agreement, by reason of any provision of any present or future
law or regulation of the United States, the Cayman Islands or Hong Kong or any
31
other country, or of any other governmental authority or regulatory authority or
stock exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Memorandum
and Articles of Association of the Company or any provision of or governing any
Deposited Securities, or by reason of any act of God or war or other
circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Memorandum and
Articles of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of this
Deposit Agreement, made available to Holders of ADSs, or (v) for any
consequential or punitive damages for any breach of the terms of this Deposit
Agreement. Except as otherwise provided herein, the Company and the Depositary
assume no liability for any act taken or for any failure to take any act
required to be taken hereunder.
The Depositary, its directors, officers, employees, agents and Affiliates,
as well as the Custodian and the Company, their respective directors, officers,
employees, agents and Affiliates, may rely and shall be protected in acting upon
any written notice, request or other document believed by it to be genuine and
to have been signed or presented by the proper party or parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.3 Standard of Care. The Company, the Depositary and their
respective agents assume no obligation and shall not be subject to any liability
under this Deposit Agreement or any ADRs to any Holder(s) or Beneficial
Owner(s), except that the Company and the Depositary agree to perform their
respective obligations specifically set forth in this Deposit Agreement or the
applicable ADRs without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective directors, officers, employees, agents or
Affiliates, shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of any Deposited Securities or in
respect of the ADSs, 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 (and no Custodian shall be under any obligation whatsoever with respect
to such proceedings, the responsibility of the Custodian being solely to the
Depositary).
Neither the Depositary and its agents nor the Company shall be liable for
any failure to carry out any instructions to vote any of the Deposited
Securities, or for the manner in which any vote is cast or the effect of any
vote, provided that any such action or omission is in good faith and in
32
accordance with the terms of this Deposit Agreement. Neither the Depositary nor
the Company shall incur any liability for any failure to determine that any
distribution or action may be lawful or reasonably practicable, for any
investment risk associated with acquiring an interest in the Deposited
Securities, for the validity or worth of the Deposited Securities, for any tax
consequences that may result from the ownership of ADSs, Shares or Deposited
Securities or for the credit-worthiness of any third party. The Depositary shall
not incur any liability for the content of any information submitted to it by
the Company for distribution to the Holders or for any inaccuracy of any
translation thereof, for allowing any rights to lapse upon the terms of this
Deposit Agreement or for the failure or timeliness of any notice from the
Company.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 90th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the earlier of (i) the 90th
day after delivery thereof to the Depositary (whereupon the Depositary shall be
entitled to take the actions contemplated in Section 6.2 hereof), or (ii) upon
the appointment by the Company of a successor depositary and its acceptance of
such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use commercially reasonable efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor depositary shall
be required by the Company to execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable laws), shall become fully vested with all the rights,
powers, duties and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment of all sums due
it and on the written request of the Company, shall (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9), (ii)
duly assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor, and (iii) deliver to such successor a list of the
Holders of all outstanding ADSs and such books and records maintained by such
predecessor with respect to its function as Depositary hereunder, and such other
information relating to ADSs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly, at its own cost, mail
notice of its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed
Citibank, N.A. - Hong Kong Branch, as Custodian and agent for the purpose of
this Deposit Agreement. The Custodian or its successors in acting hereunder
33
shall be subject at all times and in all respects to the direction of the
Depositary for the Shares for which the Custodian acts as custodian and shall be
responsible solely to it. If any Custodian resigns or is discharged from its
duties hereunder with respect to any Deposited Securities and no other Custodian
has previously been appointed hereunder, the Depositary shall promptly, and
after consultation with the Company, appoint a substitute custodian that is
licensed to operate as custodian under the laws of Hong Kong. Such resignation
of the Custodian shall take effect upon the appointment of a successor custodian
and its acceptance of such appointment. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, after
consultation with the Company (if such consultation is practicable in the
opinion of the Depositary), that it is appropriate to do so, it may appoint an
additional custodian with respect to any Deposited Securities, or discharge the
Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of ADSs, each other Custodian and
the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities and agent of such successor
depositary without any further act or writing, and shall be subject to the
direction of the successor depositary. The successor depositary so appointed
shall, nevertheless, on the written request of any Custodian, execute and
deliver to such Custodian all such instruments as may be proper to give to such
Custodian full and complete power and authority to act as agent hereunder of
such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on which the
Company gives notice, by publication or otherwise, of any meeting of holders of
Shares or other Deposited Securities, or of any adjourned meeting of such
holders, or of the taking of any action by such holders other than at a meeting,
or of the taking of any action in respect of any cash or other distributions or
the offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Shares or other Deposited Securities.
The Company will also transmit to the Depositary English-language versions
of (a) the other notices, reports and communications (to the extent required
pursuant to any regulations of the Commission) which are made generally
available by the Company to holders of its Shares or other Deposited Securities
and (b) the Company's annual reports prepared in accordance with the applicable
requirements of the Commission. The Depositary shall arrange, at the request of
the Company and at the Company's expense, to either provide copies thereof to
all Holders or, if so directed by the Company, make such notices, reports and
other communications available to all Holders on a basis similar to that for
holders of Shares or other Deposited Securities or on such other basis as the
Company may advise the Depositary or as may be required by any applicable laws,
regulation or stock exchange requirement. The Company has delivered to the
Depositary and the Custodian a copy of the Company's Memorandum and Articles of
Association along with the provisions of or governing the Shares and any other
Deposited Securities issued by the Company in connection with such Shares, and
promptly upon any amendment thereto or change therein, the Company shall deliver
34
to the Depositary and the Custodian a copy of such amendment thereto or change
therein. The Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The Depositary will, at the expense of the Company, make available a copy
of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the ADSs at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
Section 5.7 Issuance of Additional Shares, ADSs etc. The Company agrees
that in the event it or any of its Affiliates proposes (i) an issuance, sale or
distribution of additional Shares, (ii) an offering of rights to subscribe for
Shares or other Deposited Securities, (iii) an issuance of securities
convertible into or exchangeable for Shares, (iv) an issuance of rights to
subscribe for securities convertible into or exchangeable for Shares, (v) an
elective dividend of cash or Shares, (vi) a redemption of Deposited Securities,
(vii) a meeting of holders of Deposited Securities, or solicitation of consents
or proxies, relating to any reclassification of securities, merger or
consolidation or transfer of assets, or (viii) any reclassification,
recapitalization, reorganization, merger, consolidation or sale of assets which
affects the Deposited Securities, except, in the case of (i)-(viii) above, in
connection with any acquisition, merger or asset purchase by or with the Company
or its subsidiaries, and except in the case of (i)-(iv) above where such
issuance, sale, offering or distribution is to be made solely in connection with
compensation of the Company's directors, executives, officers or employees, or
with any Company employee benefit program or share option plan, the Company
will, at the written request of the Depositary, obtain U.S. legal advice and
take all steps necessary to ensure that the proposed transaction does not
violate the registration provisions of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the Exchange Act and the securities laws of the states of the
U.S.). In support of the foregoing, the Company will, at the written request of
the Depositary, furnish to the Depositary (a) a written opinion of U.S. counsel
(reasonably satisfactory to the Depositary) stating whether such transaction (1)
requires a registration statement under the Securities Act to be in effect or
(2) is exempt from the registration requirements of the Securities Act and (b)
an opinion of Cayman Islands counsel stating that (1) making the transaction
available to Holders and Beneficial Owners does not violate the laws or
regulations of the Cayman Islands and (2) all requisite regulatory consents and
approvals have been obtained in the Cayman Islands; provided, however, that no
such opinion shall be required in the event of an issuance of Shares as a bonus
or Share split. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence reasonably satisfactory to it that such
registration statement has been declared effective. If, being advised by
counsel, the Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such transaction
to the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the Depositary
to take specific measures, in each case as contemplated in this Deposit
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act. The Company agrees with the Depositary that
neither the Company nor any of its Affiliates will at any time (x) deposit any
Shares or other Deposited Securities, either upon original issuance or upon a
sale of Shares or other Deposited Securities previously issued and reacquired by
the Company or by any such Affiliate, or (y) issue additional Shares, rights to
subscribe for such Shares, securities convertible into or exchangeable for
Shares or rights to subscribe for such securities, unless such transaction and
35
the securities issuable in such transaction are exempt from registration under
the Securities Act and, if applicable, the Exchange Act or have been registered
under the Securities Act and, if applicable, the Exchange Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file any
registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may (i) arise out of acts performed or
omitted by the Depositary or its Custodian, under the terms hereof due to the
negligence or bad faith of the Depositary, so long as such entities are
Citibank, N.A. or subsidiary hereof or (ii) be incurred as a result of a breach
by the Depositary of its undertakings in Section 5.10 of this Deposit Agreement,
except, in the case of (ii), to the extent it is due to the Depositary's
compliance with the Company's request that the Depositary cease delivering ADSs
in Pre-Release Transactions.
The Company agrees to indemnify the Depositary, the Custodian and any of
their respective directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof or (c) out of acts
performed or omitted, in connection with the provisions of this Deposit
Agreement or the ADRs, as the same may be amended, modified or supplemented from
time to time, in any such case (i) by the Depositary, the Custodian or any of
their respective directors, officers, employees, agents and Affiliates, except
to the extent such loss, liability, tax, charge or expense is due to the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, officers, employees, agents and Affiliates, except to the extent any
such loss, liability, tax, charge or expense arises out of information relating
to the Depositary or any Custodian (other than the Company), as applicable,
furnished to the Company by the Depositary in writing and not materially changed
or altered by the Company expressly for use in any of the foregoing documents.
Notwithstanding the prior paragraph, the Company shall not be obligated to
indemnify the Depositary for any loss, liability, tax, charge or expense that
may arise as a result of any Pre-Release Transaction, except for a Pre-Release
Transaction requested in writing by the Company or due to the bad faith or
willful misconduct of the Company.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party hereto.
36
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. The Company, the Holders, the
Beneficial Owners, and persons depositing Shares or surrendering ADSs for
cancellation and withdrawal of Deposited Securities shall be required to pay to
the Depositary the Depositary's fees and related charges identified as payable
by them respectively in the Fee Schedule attached hereto as Exhibit B. All fees
and charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
Depositary fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary service fee (if any) are payable to the
Depositary by Holders as of the applicable ADS Record Date established by the
Depositary. In the case of distributions of cash, the amount of the applicable
Depositary fees is deducted by the Depositary from the funds being distributed.
In the case of distributions other than cash and the Depositary service fee, the
Depositary will invoice the applicable Holders as of the ADS Record Date
established by the Depositary. For ADSs held through DTC, the Depositary fees
for distributions other than cash and the Depositary service fee are charged by
the Depositary to the DTC Participants in accordance with the procedures and
practices prescribed by DTC from time to time and the DTC Participants in turn
charge the amount of such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may remit to the Company all or a portion of the Depositary
fees charged to cover certain expenses incurred by the Company in connection
with the ADS program established pursuant to this Deposit Agreement upon such
terms and conditions as the Company and the Depositary may agree from time to
time.
37
The Company agrees to pay, reasonably promptly, to the Depositary such
other fees and charges and to reimburse the Depositary for such out-of-pocket
expenses as the Depositary and the Company may agree to in writing from time to
time. Responsibility for payment of such charges may at any time and from time
to time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such expenses
and fees or charges to the Company once every three months in an itemized
invoice. The charges and expenses of the Custodian are for the sole account of
the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release Transactions. Subject to the further terms and
provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that subject to the
terms and provisions of this Section 5.10 and to the extent permitted by
applicable laws, the Depositary may, unless otherwise requested in writing by
the Company to cease doing so, (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 (each such transaction a "Pre-Release Transaction") and
(ii) deliver Shares only upon the prior receipt and cancellation of ADSs for
withdrawal of Deposited Securities pursuant to Section 2.7, including ADSs which
were issued under (i) above but for which Shares may not have been received. The
Depositary may receive ADSs in lieu of Shares under (i) above in settlement of a
Pre-Release Transaction. Each such Pre-Release Transaction will be (a) subject
to a written agreement whereby the person or entity (the "Applicant") to whom
ADSs are to be delivered (v) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares that are to be
delivered by the Applicant under such Pre-Release Transaction, (w) agrees to
indicate the Depositary as owner of such Shares in its records and to hold such
Shares in trust for the Depositary until such Shares are delivered to the
Depositary or the Custodian, (x) unconditionally guarantees to deliver such
Shares to the Depositary or the Custodian, as applicable, (y) agrees (i) to
indemnify the Depositary, its Custodian and the Company for all damages, costs
and expenses arising out of any Pre-Release Transaction requested by the
Applicant or its customer, (ii) to submit to the jurisdiction of the federal or
state courts located in the county and state of New York for the resolution of
any claims brought in respect of a Pre-Release Transaction, and (iii) that, at
the time of the Pre-Release Transaction, the Applicant or its customer assigns,
conveys and transfers to the Depositary, and that each Pre-Release Transaction
shall constitute an assignment, conveyance and transfer to the Depositary of,
the Shares and all beneficial right, title and interest therein, including,
without limitation (1) the right to vote or otherwise act with respect to
discretionary corporate actions, (2) any and all distributions with respect to
such Shares and (3) any and all tax credits or refunds arising from such
distributions, and (z) agrees to any additional restrictions or requirements
that the Depositary deems appropriate, (b) at all times fully collateralized
with cash, U.S. government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days' notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Shares involved in such Pre-Release Transactions at
any one time to thirty percent (30%) of the ADSs outstanding (without giving
effect to ADSs outstanding under (i) above); provided, however, that the
38
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate. The Depositary undertakes, for the benefit of the
Company, that it shall enter into a Pre-Release Transaction only in a manner
that will not, under applicable laws existing on the date of the Pre-Release
Transaction, cause any U.S. federal income tax consequences to Holders of ADSs
to differ from those that would have occurred had there been no such Pre-Release
Transaction.
The Depositary may also set limits with respect to the number of ADSs and
Shares involved in Pre-Release Transactions with any one person on a
case-by-case basis as it deems appropriate. The Depositary may retain for its
own account any compensation received by it in conjunction with the foregoing.
Collateral provided pursuant to (b) above, but not the earnings thereon, shall
be held for the benefit of the Holders (other than the Applicant).
Section 5.11 Restricted Securities Owners. The Company agrees to advise in
writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that such Restricted Securities are ineligible for
deposit hereunder (except under the circumstances contemplated in Section 2.13)
and, to the extent practicable, shall require each of such persons to represent
in writing that such person will not deposit Restricted Securities hereunder
(except under the circumstances contemplated in Section 2.13).
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. Subject to the terms and conditions of
this Section 6.1 and applicable laws, the ADRs outstanding at any time, the
provisions of this Deposit Agreement and the form of ADR attached hereto and to
be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding ADSs
until the expiration of thirty (30) days after notice of such amendment or
supplement shall have been given to the Holders of outstanding ADSs. The parties
hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs 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
to not materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s) or to own any beneficial interest therein, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement and the ADR as
amended or supplemented thereby. In no event shall any amendment or supplement
39
impair the right of the Holder to surrender ADSs and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable laws. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would
require an amendment of, or supplement to, the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and the ADRs at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit Agreement and
the ADRs in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
Section 6.2 Termination. The Depositary shall, at any time at the written
direction of the Company, terminate this Deposit Agreement by providing notice
of such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by providing notice of such
termination to the Holders of all ADSs then outstanding at least thirty (30)
days prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder of an ADS will, upon surrender
of such ADS at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of ADSs referred to in Section 2.7
and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
Delivery, to him or upon his order, of the amount of Deposited Securities
represented by such ADS. If any ADSs shall remain outstanding after the date of
termination of this Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of ADSs, and the Depositary shall
suspend the distribution of dividends to the Holders thereof, shall not accept
deposits of Shares (and shall instruct the Custodian to act accordingly), and
shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
property and rights as provided in this Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in Section 2.7, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, in exchange for ADSs surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of an ADS, any expenses for the account of the
Holder in accordance with the terms and conditions of this Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of one month from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest, for the pro rata benefit of the Holders whose
ADSs have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under this Deposit Agreement
with respect to the ADRs, the Deposited Securities and the ADSs, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case, the charges of the Depositary for the surrender
40
of an ADS, any expenses for the account of the Holder in accordance with the
terms and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary under Sections
5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together shall constitute one and the same agreement. Copies
of this Deposit Agreement shall be maintained with the Depositary and shall be
open to inspection by any Holder during business hours.
Section 7.2 No Agency. None of the Depositary, Custodian or Registrar, or
their respective directors, employees, agents or Affiliates, shall be considered
an agent of the Company for the purposes of this Deposit Agreement.
Section 7.3 No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their permitted successors) and
shall not be deemed to give any legal or equitable right, remedy or claim
whatsoever to any other person, except to the extent specifically set forth in
this Deposit Agreement. Nothing in this Deposit Agreement shall be deemed to
give rise to a partnership or joint venture among the parties nor establish a
fiduciary or similar relationship among the parties. The parties hereto
acknowledge and agree that (i) the Depositary and its Affiliates may at any time
have multiple banking relationships with the Company and its Affiliates, (ii)
the Depositary and its Affiliates may be engaged at any time in transactions in
which parties adverse to the Company or the Holders or Beneficial Owners may
have interests and (iii) nothing contained in this Deposit Agreement shall (a)
preclude the Depositary or any of its Affiliates from engaging in such
transactions or establishing or maintaining such relationships, or (b) obligate
the Depositary or any of its Affiliates to disclose such transactions or
relationships or to account for any profit made or payment received in such
transactions or relationships.
Section 7.4 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the ADRs should be or become invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.5 Holders and Beneficial Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of ADSs shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of any ADR by acceptance thereof or any beneficial interest therein.
Section 7.6 Notices. Any and all notices to be given to the Company shall
be deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter
41
personally delivered or sent by mail or air courier, addressed to the principal
executive office of the Company, situated at 20/F, ▇▇▇▇▇▇▇▇▇ Telecom Tower, 99
▇▇▇▇▇▇ ▇▇▇ Road, Tsing Yi, Hong Kong, Attention: Chief Executive Officer, with a
copy sent concurrently to ▇▇/▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇: Company Secretary, or to any other address which the Company may
specify in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or cable,
telex or facsimile transmission, confirmed by letter personally delivered or
sent by mail or air courier, addressed to Citibank, N.A., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A., Attention: Depositary Receipts
Department, or to any other address which the Depositary may specify in writing
to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if (a) personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the books of the Depositary or, if such
Holder shall have filed with the Depositary a request that notices intended for
such Holder be mailed to some other address, at the address specified in such
request, or (b) if a Holder shall have designated such means of notification as
an acceptable means of notification under the terms of this Deposit Agreement,
by means of electronic messaging addressed for delivery to the e-mail address
designated by the Holder for such purpose. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Failure to notify a Holder or any defect in the notification to a Holder shall
not affect the sufficiency of notification to other Holders or to the Beneficial
Owners of ADSs held by such other Holders.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service, without regard
for the actual receipt or time of actual receipt thereof by a Holder. The
Depositary or the Company may, however, act upon any cable, telex or facsimile
transmission received by it from any Holder, the Custodian, the Depositary, or
the Company, notwithstanding that such cable, telex or facsimile transmission
shall not be subsequently confirmed by letter.
Delivery of a notice by means of electronic messaging shall be deemed to
be effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records), notwithstanding that the intended recipient
retrieves the message at a later date, fails to retrieve such message, or fails
to receive such notice on account of its failure to maintain the designated
e-mail address, its failure to designate a substitute e-mail address or for any
other reason.
Section 7.7 Governing Law and Jurisdiction. This Deposit Agreement and the
ADRs shall be interpreted in accordance with, and all rights hereunder and
thereunder and provisions hereof and thereof shall be governed by, the laws of
the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in this Deposit Agreement, any ADR
or any present or future provisions of the laws of the State of New York, the
42
rights of holders of Shares and of any other Deposited Securities and the
obligations and duties of the Company in respect of the holders of Shares and
other Deposited Securities, as such, shall be governed by the laws of the Cayman
Islands (or, if applicable, such other laws as may govern the Deposited
Securities).
Except as set forth in the following paragraph of this Section 7.7, the
Company and the Depositary agree that the federal or state courts in the City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers ▇▇▇▇▇▇▇▇▇ Whampoa Agents (US) Inc.
(the "Agent") now at ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇.▇.▇.
as its authorized agent to receive and accept for and on its behalf, and on
behalf of its properties, assets and revenues, service by mail of any and all
legal process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Company in any federal or state court
as described in the preceding sentence or in the next paragraph of this Section
7.7. If for any reason the Agent shall cease to be available to act as such, the
Company agrees to designate a new agent in New York on the terms and for the
purposes of this Section 7.7 reasonably satisfactory to the Depositary. The
Company further hereby irrevocably consents and agrees to the service of any and
all legal process, summons, notices and documents in any suit, action or
proceeding against the Company, by service by mail of a copy thereof upon the
Agent (whether or not the appointment of such Agent shall for any reason prove
to be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air mail,
postage prepaid, to its address provided in Section 7.6 hereof. The Company
agrees that the failure of the Agent to give any notice of such service to it
shall not impair or affect in any way the validity of such service or any
judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the laying
of venue of any actions, suits or proceedings brought in any court as provided
in this Section 7.7, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
43
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of immunity
from legal action, suit or proceeding, 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, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any ADR or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.7 shall
survive any termination of this Deposit Agreement, in whole or in part.
Section 7.8 Assignment. Subject to the provisions of Section 5.4 hereof,
this Deposit Agreement may not be assigned or otherwise transferred by either
the Company or the Depositary.
Section 7.9 Compliance with U.S. Securities Laws. Notwithstanding anything
in this Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.10 Titles and References. All references in this Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions of
this Deposit Agreement unless expressly provided otherwise. The words "this
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to this Deposit Agreement as a whole as in effect between
the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
Deposit Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References to
"applicable laws and regulations" shall refer to laws and regulations applicable
to ADRs, ADSs or Deposited Securities as in effect at the relevant time of
determination, unless otherwise required by law or regulation.
Section 7.11 Amendment and Restatement. Holders and Beneficial Owners of
ADSs issued pursuant to the Original Deposit Agreement and outstanding as of the
date hereof, shall, from and after the date hereof, be deemed Holders and
Beneficial Owners of ADSs issued pursuant to, and be subject to all of the terms
and conditions of, this Deposit Agreement in all respects, provided, however,
that any term of this Deposit Agreement that materially prejudices any
substantial existing right of holders or beneficial owners of ADSs issued under
the Original Deposit Agreement shall not become effective as to outstanding ADSs
until thirty (30) days after notice of the amendments effected by this Deposit
Agreement shall have been given to holders of ADSs outstanding as of the date
hereof.
44
The Company hereby instructs the Depositary to promptly send notice of the
amendments effected by the Deposit Agreement to all holders of ADSs outstanding
under the Original Deposit Agreement as of the date hereof.
All ADRs issued hereunder after the date hereof, whether upon the deposit
of Shares or other Deposited Securities or upon the transfer, combination or
split-up of existing ADRs, shall be substantially in the form of the specimen
ADR attached as Exhibit A hereto. However, ADRs issued prior to the date hereof
under the terms of the Original Deposit Agreement and outstanding as of the date
hereof, which do not reflect the form of ADR attached hereto as Exhibit A, do
not need to be called in for exchange and may remain outstanding, subject to all
of the terms and conditions of this Deposit Agreement, until such time as the
Holders thereof choose to surrender them for any reason under this Deposit
Agreement.
45
IN WITNESS WHEREOF, ▇▇▇▇▇▇▇▇▇ Telecommunications International Limited
and Citibank, N.A. have duly executed this Amended and Restated Deposit
Agreement as of the day and year first above set forth and all Holders and
Beneficial Owners shall become parties hereto upon acceptance by them of ADSs
issued in accordance with the terms hereof, or upon acquisition of any
beneficial interest therein.
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS INTERNATIONAL
LIMITED
By:
-----------------------------------------
Name:
Title:
CITIBANK, N.A.
By:
-----------------------------------------
Name:
Title:
46
EXHIBIT A
[FORM OF ADR]
Number ___________ CUSIP NUMBER: __________
American Depositary Shares (each
American Depositary Share
representing fifteen (15) fully paid
ordinary shares)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS INTERNATIONAL LIMITED
(Incorporated under the laws of the Cayman Islands)
Citibank, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that ________ is the owner of ___________
American Depositary Shares (hereinafter "ADS"), representing deposited ordinary
shares, including evidence of rights to receive such ordinary shares (the
"Shares"), of ▇▇▇▇▇▇▇▇▇ Telecommunications International Limited, a corporation
incorporated under the laws of the Cayman Islands (the "Company"). As of the
date of the Deposit Agreement (as hereinafter defined), each ADS represents the
right to receive fifteen (15) Shares deposited under the Deposit Agreement with
the Custodian, which at the date of execution of the Deposit Agreement is
Citibank, N.A. - Hong Kong Branch (the "Custodian"). The ADS(s)-to-Share(s)
ratio is subject to amendment as provided in Articles IV and VI of the Deposit
Agreement. The Depositary's Principal Office is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("ADRs"), all issued and to be issued upon
the terms and conditions set forth in the Amended and Restated Deposit
Agreement, dated as of [Date] (as amended and supplemented from time to time,
the "Deposit Agreement"), by and among the Company, the Depositary, and all
Holders and Beneficial Owners from time to time of ADSs issued thereunder. The
Deposit Agreement sets forth the rights and obligations of Holders and
Beneficial Owners of ADSs and the rights and duties of the Depositary in respect
of the Shares deposited thereunder and any and all other securities, property
and cash from time to time received in respect of such Shares and held
thereunder (such Shares, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
A-1
Principal Office of the Depositary and with the Custodian. Each Holder and each
Beneficial Owner, upon acceptance of any ADSs (or any interest therein) issued
in accordance with the terms and conditions of the Deposit Agreement, shall be
deemed for all purposes to (a) be a party to and bound by the terms of the
Deposit Agreement and 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 laws
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.
The statements made on the face and reverse of this ADR are summaries of
certain provisions of the Deposit Agreement and the Memorandum and Articles of
Association of the Company (as in effect on the date of the signing of the
Deposit Agreement) and are qualified by and subject to the detailed provisions
of the Deposit Agreement and the Memorandum and Articles of Association, to
which reference is hereby made. All capitalized terms used herein which are not
otherwise defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through
DTC must rely on the procedures of DTC and the DTC Participants to exercise and
be entitled to any rights attributable to such ADSs.
(2) Withdrawal of Deposited Securities. The Holder of this ADR (and of the
ADSs evidenced hereby) shall be entitled to Delivery (at the Custodian's
designated office) of the Deposited Securities at the time represented by the
ADSs evidenced hereby upon satisfaction of each of the following conditions: (i)
the Holder (or a duly authorized attorney of the Holder) has duly Delivered to
the Depositary at its Principal Office the ADSs evidenced hereby (and, if
applicable, this ADR evidencing such ADSs) for the purpose of withdrawal of the
Deposited Securities represented thereby, (ii) if applicable and if so required
by the Depositary, this ADR Delivered to the Depositary for such purpose has
been properly endorsed in blank or is accompanied by proper instruments of
transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be
Delivered to or upon the written order of the person(s) designated in such
order, and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary (in each case, as set forth in Section 5.9 of, and Exhibit B to,
the Deposit Agreement) and all applicable taxes and governmental charges have
been paid, subject, however, in each case, to the terms and conditions of this
ADR evidencing the surrendered ADSs, of the Deposit Agreement, of the Company's
Memorandum and Articles of Association, of any applicable laws, and to any
provisions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary shall (i) promptly cancel the ADSs Delivered to it (and, if
applicable, the ADR(s) evidencing the ADSs so Delivered), (ii) direct the
Registrar to record the cancellation of the ADSs so Delivered, and (iii) direct
A-2
the Custodian to Deliver (without unreasonable delay) at the Custodian's
designated office the Deposited Securities represented by the ADSs so canceled
together with any certificate or other document of title for the Deposited
Securities, or evidence of the electronic transfer thereof (if available), as
the case may be, to or upon the written order of the person(s) designated in the
order delivered to the Depositary for such purpose, subject however, in each
case, to the terms and conditions of the Deposit Agreement, of this ADR
evidencing the ADSs so cancelled, of the Memorandum and Articles of Association
of the Company, of any applicable laws, and to the terms and conditions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
The Depositary shall not accept for surrender ADSs representing less than
one Share. In the case of Delivery to it of ADSs representing a number other
than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Share
represented by the ADSs so surrendered and remit the proceeds of such sale (net
of (a) applicable fees and charges of, and expenses incurred by, the Depositary,
(in each case, as set forth in Section 5.9 of, and Exhibit B to, the Deposit
Agreement), (b) governmental charges and (c) taxes withheld) to the person
surrendering the ADSs.
Notwithstanding anything else contained in this ADR or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of shares or rights, which are at the time
held by the Depositary in respect of the Deposited Securities represented by the
ADSs surrendered for cancellation and withdrawal. At the request, risk and
expense of any Holder so surrendering ADSs represented by this ADR, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of the Deposited Securities represented by such
ADSs to the Depositary for delivery at the Principal Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall
reasonably promptly register the transfer of this ADR (and of the ADSs
represented hereby) on the books maintained for such purpose and the Depositary
shall reasonably promptly (x) cancel this ADR and execute new ADRs evidencing
the same aggregate number of ADSs as those evidenced by this ADR when canceled
by the Depositary, (y) cause the Registrar to countersign such new ADRs, and (z)
Deliver such new ADRs to or upon the order of the person entitled thereto, if
each of the following conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) this surrendered ADR has been properly endorsed or is accompanied
by proper instruments of transfer (including signature guarantees in accordance
with standard securities industry practice), (iii) this surrendered ADR has been
duly stamped (if required by the laws of the State of New York or of the United
States), and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary (in each case, as set forth in Section 5.9 of, and Exhibit B to,
the Deposit Agreement) and all applicable taxes and governmental charges have
A-3
been paid, subject, however, in each case, to the terms and conditions of this
ADR, of the Deposit Agreement and of applicable laws, in each case as in effect
at the time thereof.
The Registrar shall, without unreasonable delay, register the split-up or
combination of this ADR (and of the ADSs represented hereby) on the books
maintained for such purpose and the Depositary shall, reasonably promptly, (x)
cancel this ADR and execute new ADRs for the number of ADSs requested, but in
the aggregate not exceeding the number of ADSs evidenced by this ADR canceled by
the Depositary, (y) cause the Registrar to countersign such new ADRs, and (z)
Deliver such new ADRs to or upon the order of the Holder thereof, if each of the
following conditions has been satisfied: (i) this ADR has been duly Delivered by
the Holder (or by a duly authorized attorney of the Holder) to the Depositary at
its Principal Office for the purpose of effecting a split-up or combination
hereof, and (ii) all applicable fees and charges of, and expenses incurred by,
the Depositary (in each case, as set forth in Section 5.9 of, and Exhibit B to,
the Deposit Agreement) and all applicable taxes and governmental charges have
been paid, subject, however, in each case, to the terms and conditions of this
ADR, of the Deposit Agreement and of applicable laws, in each case as in effect
at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the issuance and delivery, registration of issuance, transfer,
split-up, combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B to the Deposit Agreement and
in this ADR, (ii) the production of proof satisfactory to it as to the identity
and genuineness of any signature or any other matter contemplated in Section 3.1
of the Deposit Agreement, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of ADRs or ADSs or to the
withdrawal of Deposited Securities and (B) such reasonable regulations as the
Depositary and the Company may establish consistent with the provisions of this
ADR and the Deposit Agreement and applicable laws.
The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the deposit of particular
Shares may be refused, or the registration of transfer of ADSs in particular
instances may be refused, or the registration of transfer of ADSs generally may
be suspended, during any period when the transfer books of the Depositary, a
Registrar, a Share Registrar, or the Company, including the Shareholders'
registers of the Company, are closed or if any such action is deemed necessary
or advisable by the Depositary (whereupon the Depositary shall notify the
Company) or the Company, in good faith, at any time or from time to time because
of any requirement of law, any government or governmental body or commission or
any securities exchange on which the Shares or ADSs are listed, or under any
provision of the Deposit Agreement or this ADR, 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 paragraph (24)
hereof and Section 7.9 of the Deposit Agreement.
A-4
Notwithstanding any provision of the Deposit Agreement or this ADR to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities at any time subject only to (i) temporary delays caused by
closing the transfer books of the Depositary or the Company in accordance with
the terms of the Deposit Agreement or the deposit of Shares in connection with
voting at a Shareholders' meeting or the payment of dividends, (ii) the payment
of fees, taxes and similar charges, (iii) compliance with any U.S. or foreign
laws or governmental regulations relating to the ADSs or to the withdrawal of
the Deposited Securities, and (iv) other circumstances specifically contemplated
by Instruction I.A.(l) of the General Instructions to Form F-6 under the
Securities Act (as such General Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this ADR, each Holder and Beneficial Owner
agrees to comply with requests from the Company pursuant to applicable laws,
rules and requirements of The Stock Exchange of Hong Kong Limited, the New York
Stock Exchange and any other stock exchange on which Shares or ADSs are, or will
be, registered, traded or listed, or the Memorandum and Articles of Association
of the Company, which are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and Shares, as the
case may be) and regarding the identity of any other person(s) interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this ADR or
of the Deposit Agreement, the Company may restrict transfers of the Shares where
such transfer might result in ownership of Shares exceeding limits imposed by
applicable laws or the Memorandum and Articles of Association of the Company.
The Company may also restrict, in such manner as it deems appropriate, transfers
of ADSs where such transfer may result in the total number of Shares represented
by the ADSs owned by a single Holder or Beneficial Owner to exceed any such
limits. The Company may, in its sole discretion but subject to applicable laws,
instruct the Depositary to take action with respect to the ownership interest of
any Holder or Beneficial Owner in excess of the limits set forth in the
preceding sentence, including but not limited to, the imposition of restrictions
on the transfer of ADSs, the removal or limitation of voting rights or mandatory
sale or disposition on behalf of a Holder or Beneficial Owner of the Shares
represented by the ADSs held by such Holder or Beneficial Owner in excess of
such limitations, if and to the extent such disposition is permitted by
applicable laws and the Memorandum and Articles of Association of the Company.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian and/or
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of a Holder and/or Beneficial
Owner any or all of the Deposited Securities and apply such distributions and
sale proceeds in payment of such taxes (including applicable interest and
penalties) or other governmental charges, the Holder and the Beneficial Owner
hereof remaining liable for any deficiency. The Custodian may refuse the deposit
of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs, register
the transfer, split-up or combination of ADRs and (subject to paragraph (24)
A-5
hereof and Section 7.9 of the Deposit Agreement) the withdrawal of Deposited
Securities until payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the Depositary,
the Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and hold each of them harmless from, any claims with respect to
taxes (including applicable interest and penalties thereon) arising from any tax
benefit obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person depositing
Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefor are duly authorized,
validly issued, outstanding, fully paid, non-assessable and legally obtained by
such person, (ii) all preemptive (and similar) rights, if any, with respect to
such Shares have been validly waived or exercised, (iii) the person making such
deposit is duly authorized so to do, (iv) the Shares presented for deposit are
free and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim, (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.13 of the Deposit Agreement), and (vi) the Shares
presented for deposit have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are false in
any way, the Company and the Depositary shall be authorized, at the cost and
expense of the person depositing Shares, to take any and all actions necessary
to correct the consequences thereof.
(9) Proofs, Certificates and Other Information. Any person presenting
Shares for deposit, any Holder and any Beneficial Owner may be required, and
every Holder and Beneficial Owner agrees, from time to time to provide to the
Depositary and the Custodian such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws, the terms of the Deposit Agreement
or the ADR(s) evidencing the ADSs, and the provisions of, or governing, the
Deposited Securities, to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of a Share Registrar) as the Depositary or the Custodian may
reasonably deem necessary or proper or as the Company may reasonably require by
written request to the Depositary consistent with its obligations under the
Deposit Agreement and this ADR. The Depositary and the Registrar, as applicable,
may withhold the execution or delivery or registration of transfer of any ADR or
ADSs or the distribution or sale of any dividend or other distribution of rights
or of the proceeds thereof or, to the extent not limited by paragraph (24)
hereof and Section 7.9 of the Deposit Agreement, the delivery of any Deposited
Securities until such proof or other information is filed or such certifications
are executed, or such representations and warranties are made or such other
information or documentation is provided, in each case to the Depositary's, the
Registrar's and the Company's reasonable satisfaction.
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(10) Charges of Depositary. The Depositary shall charge the following
fees:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) issued under the
terms of the Deposit Agreement (excluding issuances
contemplated by (v) and (vi) below);
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADSs, a fee not in
excess of U.S. $2.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash proceeds (i.e., upon the sale of
rights and other entitlements) under the terms of the Deposit
Agreement, excluding distributions pursuant to paragraph (vi)
below; and
(iv) Rights Exercise Fee: to any Holder of ADSs, a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) issued
upon the exercise of rights to purchase additional ADSs;
(v) Other Distribution Fee: to any Holder of ADSs receiving a
distribution of securities other than ADSs or rights to
purchase additional ADSs, a fee not in excess of U.S. $5.00
per unit of 100 securities (or fraction thereof) distributed;
(vi) Stock Distribution/Cash Dividend Distribution Fee: to any
Holder of ADSs, the fees specified in (i) above for a
distribution of ADSs pursuant to stock dividends (or other
free distribution of stock) and the fees specified in (iii)
above for distributions of cash.
Holders, Beneficial Owners, persons depositing Shares and persons
surrendering ADSs for cancellation and withdrawal of Deposited Securities shall
be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery
expenses as are expressly provided in the Deposit Agreement to
be at the expense of the person depositing or withdrawing
Shares or Holders and Beneficial Owners of ADSs;
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(iv) the reasonable expenses and charges incurred by the Depositary
in the conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities (unless prohibited by the
exchange upon which the ADSs are listed).
The Holders, the Beneficial Owners, and persons depositing Shares or
surrendering ADSs for cancellation and withdrawal of Deposited Securities shall
be required to pay to the Depositary the Depositary's fees and related charges
identified as payable by them respectively in the Fee Schedule attached as
Exhibit B to the Deposit Agreement. All fees and charges so payable may, at any
time and from time to time, be changed by agreement between the Depositary and
the Company, but, in the case of fees and charges payable by Holders and
Beneficial Owners, only in the manner contemplated in Section 6.1 of the Deposit
Agreement. The Depositary shall provide, without charge, a copy of its latest
fee schedule to anyone upon request.
Depositary Fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary service fee (if any) are payable to the
Depositary by Holders as of the applicable ADS Record Date established by the
Depositary. In the case of distributions of cash, the amount of the applicable
Depositary fees is deducted by the Depositary from the funds being distributed.
In the case of distributions other than cash and the Depositary service fee, the
Depositary will invoice the applicable Holders as of the ADS Record Date
established by the Depositary. For ADSs held through DTC, the Depositary fees
for distributions other than cash and the Depositary service fee, if any, are
charged by the Depositary to the DTC Participants in accordance with the
procedures and practices prescribed by DTC from time to time and the DTC
Participants in turn charge the amount of such fees to the Beneficial Owners for
whom they hold ADSs.
The Depositary may remit to the Company all or a portion of the Depositary
fees charged to cover certain expenses incurred by the Company in connection
with the ADS program established pursuant to the Deposit Agreement upon such
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terms and conditions as the Company and the Depositary may agree from time to
time.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 of the Deposit Agreement, such right
shall extend for those fees, charges and expenses incurred prior to the
effectiveness of such resignation or removal.
(11) Title to ADRs. It is a condition of this ADR, and every successive
Holder of this ADR by accepting or holding the same consents and agrees, that
title to this ADR (and to each ADS evidenced hereby) shall be transferable by
delivery upon the same terms as a certificated security under the laws of the
State of New York, provided that the ADR has been properly endorsed or is
accompanied by proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
ADR (that is, the person in whose name this ADR is registered on the books of
the Depositary) as the absolute owner thereof for all purposes. Neither the
Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or this ADR to any holder of this ADR or
any Beneficial Owner unless such holder is the Holder of this ADR registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement, and
no ADR or ADS evidenced thereby shall be valid or enforceable for any purpose
against the Depositary or the Company unless this ADR has been (i) dated, (ii)
signed by the manual or facsimile signature of a duly-authorized signatory of
the Depositary, (iii) countersigned by the manual or facsimile signature of a
duly-authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
ADRs. ADRs bearing the manual or facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such ADR by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and, accordingly, is required to file or submit certain reports with the
Commission. These reports can be retrieved from the Commission's website
(▇▇▇.▇▇▇.▇▇▇) and can be inspected and copied at the public reference facilities
maintained by the Commission located (as of the date of the Deposit Agreement)
at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇. The Depositary shall make
available for inspection by Holders at its Principal Office any reports and
communications, including any proxy soliciting materials, received from the
Company which are both (a) received by the Depositary, the Custodian, or the
nominee of either of them as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the Company.
The Registrar shall keep books for the registration of issuances and
transfers of ADSs which at all reasonable times shall be open for inspection by
the Company and by the Holders, provided that such inspection shall not be, to
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the Registrar's knowledge, for the purpose of communicating with Holders in the
interest of a business or object other than the business of the Company or other
than a matter related to the Deposit Agreement or the ADSs.
Upon notice to the Company, the Registrar may close the transfer books
with respect to the ADSs, at any time or from time to time, but only for such
duration as the Registrar reasonably determines to be necessary or essential for
the due discharge of its obligations, or at the reasonable written request of
the Company subject, in all cases, to paragraph (24) hereof and Section 7.9 of
the Deposit Agreement.
Dated:
CITIBANK, N.A. CITIBANK, N.A.
Transfer Agent and Registrar as Depositary
By: By:
------------------------ ------------------------------
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 388 Greenwich
Street, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
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[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of the receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities or of any entitlements held
in respect of Deposited Securities under the terms of the Deposit Agreement, the
Depositary will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can, in the judgment of the Depositary (upon the terms of
Section 4.8 of the Deposit Agreement), be converted on a practicable basis into
Dollars transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (upon the
terms of the Deposit Agreement), (ii) if applicable, establish the ADS Record
Date upon the terms described in Section 4.9 of the Deposit Agreement, and (iii)
distribute promptly the amount thus received (net of (a) applicable fees and
charges of, and expenses incurred by, the Depositary, in each case, as set forth
in Section 5.9 of, and Exhibit B to, the Deposit Agreement, (b) governmental
charges and (c) taxes withheld) to the Holders entitled thereto as of the ADS
Record Date in proportion to the number of ADSs held as of the ADS Record Date.
The Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs then outstanding at the time of
the next distribution. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced accordingly.
Such withheld amounts shall be forwarded by the Company, the Custodian or the
Depositary to the relevant governmental authority.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall cause such Shares to be
deposited with the Custodian and registered, as the case may be, in the name of
the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall, subject
to and in accordance with the Deposit Agreement, establish the ADS Record Date
upon the terms described in Section 4.9 of the Deposit Agreement and either (i)
the Depositary shall, subject to Section 5.9 of the Deposit Agreement,
distribute to the Holders as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date, additional ADSs to which they are
entitled, which represent in the aggregate the number of Shares received as such
dividend, or free distribution, subject to the terms of the Deposit Agreement
(including, without limitation, (a) the applicable fees and charges of, and
expenses incurred by, the Depositary (in each case, as set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement), (b) governmental charges and (c)
taxes), or (ii) if additional ADSs are not so distributed, each ADS issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interests in the additional integral
number of Shares distributed upon the Deposited Securities represented thereby
(net of (a) the applicable fees and charges of, and expenses incurred by, the
Depositary, in each case, as set forth in Section 5.9 of, and Exhibit B to, the
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Deposit Agreement, (b) governmental charges and (c) taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company in the
fulfillment of its obligations under the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may,
following consultation with the Company, dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable, and the Depositary shall distribute the net proceeds
of any such sale (after deduction of (a) the applicable fees and charges of, and
expenses incurred by, the Depositary (in each case, as set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement), (b) governmental charges and (c)
taxes) to Holders entitled thereto upon the terms described in the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement. To the
extent that new ADSs representing such Shares are not created and such Shares
are not sold or otherwise distributed in accordance with this section, each ADS
shall thenceforth also represent such additional shares distributed upon the
Deposited Securities represented thereby.
Whenever the Company intends to make a distribution payable at the
election of the holders of Shares in cash or in additional Shares other than as
provided in Sections 4.1 or 4.2 of the Deposit Agreement, the Company shall give
such timely notice thereof to the Depositary as is reasonably practicable having
regard to all applicable regulatory and other requirements to which the Company
is subject from time to time, stating whether or not it wishes such elective
distribution to be made available to Holders of ADSs. Upon timely receipt of
notice indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall make such
elective distribution available to Holders only if (i) the Company shall have
timely requested that the elective distribution be made available to Holders,
(ii) the Depositary shall have determined that such distribution is reasonably
practicable and (iii) the Depositary shall have received satisfactory
documentation within the terms of Section 5.7 of the Deposit Agreement. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law, distribute to the Holders, on the basis of the same
determination as is made in the Cayman Islands in respect of the Shares for
which no election is made, either (X) cash upon the terms described in Section
4.1 of the Deposit Agreement or (Y) additional ADSs representing such additional
Shares upon the terms described in Section 4.2 of the Deposit Agreement. If the
above conditions are satisfied, the Depositary shall establish an ADS Record
Date (on the terms described in Section 4.9 of the Deposit Agreement) and
establish procedures to enable Holders to elect the receipt of the proposed
distribution in cash or in additional ADSs. The Company shall assist the
Depositary in establishing such procedures to the extent necessary. If a Holder
elects to receive the proposed distribution (X) in cash, the distribution shall
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be made upon the terms described in Section 4.1 of the Deposit Agreement, or (Y)
in ADSs, the distribution shall be made upon the terms described in Section 4.2
of the Deposit Agreement. Nothing herein shall obligate the Depositary to make
available to Holders a method to receive the elective distribution in Shares
(rather than ADSs) if the conditions above are not satisfied. There can be no
assurance that Holders generally, or any Holder in particular, will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
Whenever the Company intends to distribute to the holders of the Deposited
Securities rights to subscribe for additional Shares, the Company shall give
such timely notice thereof to the Depositary as is reasonably practicable having
regard to all applicable regulatory and other requirements to which the Company
is subject from time to time, stating whether or not it wishes such rights to be
made available to Holders of ADSs. Upon timely receipt of a notice indicating
that the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to Holders only if (i) the Company shall have timely
requested that such rights be made available to Holders, (ii) the. Depositary
shall have received satisfactory documentation within the terms of Section 5.7
of the Deposit Agreement, and (iii) the Depositary shall have determined that
such distribution of rights is reasonably practicable. In the event any of the
conditions set forth above are not satisfied or if the Company requests that the
rights not be made available to Holders of ADSs, the Depositary shall proceed
with the sale of the rights as contemplated in Section 4.4(b) of the Deposit
Agreement. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.9 of the Deposit Agreement) and establish procedures to (x) distribute
rights to purchase additional ADSs (by means of warrants or otherwise) in
proportion to the number of ADSs held, (y) to enable the Holders or holders of
warrants, as the case may be, to exercise such rights or warrants (upon payment
of the subscription price and of the applicable (a) fees and charges of, and
expenses incurred by, the Depositary (in each case, as set forth in Section 5.9
of, and Exhibit B to, the Deposit Agreement), (b) governmental charges and (c)
taxes) and, if applicable, to enable Holders or holders of warrants, as the case
may be, to sell or transfer such rights or warrants, as the case may be, and (z)
to deliver ADSs upon the valid exercise of such rights. The Company shall assist
the Depositary to the extent necessary in establishing such procedures. Nothing
herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holders a method to exercise rights to subscribe for Shares
(rather than ADSs).
If (i) the Company does not timely request the Depositary to make the
rights available to Holders or requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive satisfactory documentation within
the terms of Section 5.7 of the Deposit Agreement or determines it is not
reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall, after consultation with the Company, determine whether it is
lawful and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem practicable. The Depositary shall consult with the Company to the
extent necessary to determine such legality and practicability. The Depositary
shall, upon such sale, convert and distribute proceeds of such sale (net of
applicable (a) fees and charges of, and expenses incurred by, the Depositary (in
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each case, as set forth in Section 5.9 and Exhibit B to the Deposit Agreement),
(b) governmental charges and (c) taxes) upon the terms set forth in Section 4.1
of the Deposit Agreement.
If the Depositary is unable to make any rights available to Holders upon
the terms described in Section 4.4(a) of the Deposit Agreement or to arrange for
the sale of the rights upon the terms described in Section 4.4(b) of the Deposit
Agreement, the Depositary shall allow such rights to lapse. Neither the
Depositary nor the Company shall be responsible for (i) any failure to determine
that it may be lawful or practicable to make such rights available to Holders in
general or any Holders in particular, or (ii) any foreign exchange exposure or
loss incurred in connection with such sale or exercise. The Depositary shall not
be responsible for the content of any materials forwarded to the Holders on
behalf of the Company in connection with the rights distribution.
Notwithstanding anything herein or in Section 4.4 of the Deposit Agreement to
the contrary, if registration (under the Securities Act or any other applicable
laws) of the rights or the securities to which any rights relate may be required
in order for the Company to offer such rights or such securities to Holders and
to sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable laws) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary with
opinion(s) of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case reasonably satisfactory to the Depositary, to the effect that the
offering and sale of such securities to Holders and Beneficial Owners are exempt
from, or do not require registration under, the provisions of the Securities Act
or any other applicable laws.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of ADSs representing such Deposited
Securities shall be reduced accordingly. In the event that the Depositary
determines that any distribution in property (including Shares and rights to
subscribe therefor) is subject to any tax or other governmental charges which
the Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in particular,
will be given the opportunity to receive or exercise rights on the same terms
and conditions as the holders of Shares or be able to exercise such rights.
Nothing herein or in the Deposit Agreement shall obligate the Company to file
any registration statement in respect of any rights or Shares or other
securities to be acquired upon the exercise of such rights.
Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase additional
Shares, the Company shall give timely notice thereof to the Depositary and shall
indicate whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes such
distribution be made to Holders of ADSs, the Depositary shall consult with the
Company, and the Company shall assist the Depositary, to determine whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have requested the
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Depositary to make such distribution to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, and (iii) the Depositary, after consulting with the Company,
shall have determined that such distribution is reasonably practicable. Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth above, the Depositary shall distribute the property so
received to the Holders of record, as of the ADS Record Date, in proportion to
the number of ADSs held by them respectively and in such manner as the
Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary (in each case, as set forth in Section 5.9 of, and
Exhibit B to, the Deposit Agreement), (ii) net of governmental charges and (iii)
net of any taxes withheld. The Depositary may dispose of all or a portion of the
property so distributed and deposited, in such amounts and in such manner
(including public or private sale) as the Depositary may deem practicable or
necessary to satisfy any taxes (including applicable interest and penalties) or
other governmental charges applicable to the distribution. If (i) the Company
does not request the Depositary to make such distribution to Holders or requests
not to make such distribution to Holders, (ii) the Depositary does not receive
satisfactory documentation within the terms of Section 5.7 of the Deposit
Agreement, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable, the Depositary shall sell or cause
such property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem practicable and shall (i) cause the proceeds
of such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary, in each case, as
set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement, (b)
governmental charges and (c) taxes) to the Holders as of the ADS Record Date
upon the terms of Section 4.1 of the Deposit Agreement. If the Depositary is
unable to sell such property, the Depositary may dispose of such property for
the account of the Holders in any way it deems reasonably practicable under the
circumstances. Neither the Depositary nor the Company shall be responsible for
(i) any failure to determine that it may be lawful or practicable to make the
property described in Section 4.5 of the Deposit Agreement or in this paragraph
available to Holders in general or any Holders in particular, or (ii) any
foreign exchange exposure or loss incurred in connection with the sale or
disposal or such property.
(15) Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
such timely notice thereof to the Depositary as is reasonably practicable having
regard to all applicable regulatory and other requirements to which the Company
is subject from time to time, which notice shall set forth the particulars of
the proposed redemption. Upon timely receipt of (i) such notice and (ii)
satisfactory documentation given by the Company to the Depositary within the
terms of Section 5.7 of the Deposit Agreement, and only if the Depositary shall
have determined that such proposed redemption is reasonably practicable, the
Depositary shall provide to each Holder a notice setting forth the intended
exercise by the Company of the redemption rights and any other particulars set
forth in the Company's notice to the Depositary. The Depositary shall instruct
the Custodian to present to the Company the Deposited Securities in respect of
which redemption rights are being exercised against payment of the applicable
redemption price. Upon receipt of confirmation from the Custodian that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, and distribute the
proceeds (net of applicable (a) fees and charges of, and the expenses incurred
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by, the Depositary (in each case, as set forth in Section 5.9 of, and Exhibit B
to, the Deposit Agreement), (b) governmental charges, and (c) taxes), retire
ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof and the terms
set forth in Sections 4.1 and 6.2 of the Deposit Agreement. If less than all
outstanding Deposited Securities are redeemed, the ADSs to be retired will be
selected by lot or on a pro rata basis, as may be determined by the Depositary.
The redemption price per ADS shall be the dollar equivalent of the per share
amount received by the Depositary (adjusted to reflect the ADS(s)-to-Share(s)
ratio) upon the redemption of the Deposited Securities represented by ADSs
(subject to the terms of Section 4.8 of the Deposit Agreement and the applicable
fees and charges of, and expenses incurred by, the Depositary (in each case, as
set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement),
governmental charges and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, solicitation of any consent or any
other matter, the Depositary shall, after consultation with the Company, fix a
record date ("ADS Record Date") for the determination of the Holders of ADSs who
shall be entitled to receive such distribution, to give instructions for the
exercise of voting rights at any such meeting, to give or withhold such consent,
to receive such notice or solicitation or to otherwise take action, or to
exercise the rights of Holders with respect to such changed number of Shares
represented by each ADS. The Depositary shall make reasonable efforts to
establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any) set by the Company in Hong Kong.
Subject to applicable laws and the terms and conditions of this ADR and Sections
4.1 through 4.8 of the Deposit Agreement, only the Holders at the close of
business in New York on such ADS Record Date shall be entitled to receive such
distributions, to give such instructions, to receive such notice or
solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Deposited Securities are
entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy in accordance with Section
4.9 of the Deposit Agreement. The Depositary shall, as soon as practicable, if
requested by the Company in writing in a timely manner, at the Company's expense
and provided no U.S. legal prohibitions exist, distribute to Holders as of the
ADS Record Date: (a) such notice of meeting or solicitation of consent or proxy,
(b) a statement that the Holders at the close of business on the ADS Record Date
will be entitled, subject to any applicable laws, the provisions of the Deposit
Agreement, the Company's Memorandum and Articles of Association and the
provisions of or governing Deposited Securities (which provisions, if any, shall
be summarized in pertinent part by the Company), to instruct the Depositary as
to the exercise of the voting rights, if any, pertaining to the Deposited
Securities represented by such Holder's ADSs and (c) a brief statement as to the
manner in which such voting instructions may be given, including an express
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indication that such instructions may be given or deemed given in accordance
with the last sentence of the third paragraph of Section 4.10 of the Deposit
Agreement if no instruction is received, to the Depositary to give a
discretionary proxy to a person designated to the Company. For avoidance of
doubt, the Depositary shall have no obligation to take any action if it shall
determine, in its reasonable opinion and having used its best efforts to
ensuring the notice period is kept as short as is reasonably practicable, that
inadequate notice has been given by the Company having regard to all relevant
facts and circumstances then prevailing (including without limitation the nature
of the subject vote or meeting). It being understood that advance notice of at
least 28 calendar days prior to the date of the Company's annual general meeting
will constitute sufficient notice for this purpose. Voting instructions may be
given only in respect of a number of ADSs representing an integral number of
Deposited Securities. Upon the timely receipt of voting instructions from a
Holder of ADSs as of the ADS Record Date in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and permitted
under applicable laws and the provisions of the Deposit Agreement, the
Memorandum and Articles of Association of the Company and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities represented by such Holder's ADSs in accordance with such
instructions.
Notwithstanding anything contained in the Deposit Agreement or any ADR,
the Depositary may, to the extent not prohibited by laws or regulations, or by
the requirements of the stock exchange on which the ADSs may be listed, in lieu
of distribution of the materials provided to the Depositary in connection with
any meeting of, or solicitation of consents or proxies from, holders of
Deposited Securities distribute to Holders a notice that provides Holders with,
or otherwise publicize to Holders, instructions on how to retrieve such
materials or receive such materials upon request (i.e., by reference to a
website containing the materials for retrieval or a contact for requesting
copies of the materials).
Neither the Depositary nor the Custodian shall under any circumstances
exercise any discretion as to voting and neither the Depositary nor the
Custodian shall vote, attempt to exercise the right to vote, or in any way make
use of, for purposes of establishing a quorum or otherwise the Deposited
Securities represented by ADSs, except pursuant to and in accordance with the
voting instructions (including those received in electronic form) timely
received from Holders or as otherwise contemplated herein. If the Depositary
timely receives voting instructions from a Holder which fail to specify the
manner in which the Depositary is to vote the Deposited Securities represented
by such Holder's ADSs, the Depositary will deem such Holder (unless otherwise
specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting instructions.
Notwithstanding the foregoing sentence, if (i) the Company timely provides
notice to the Depositary pursuant to the provision of the second sentence of
Section 4.10 of the Deposit Agreement and (ii) no instructions are received by
the Depositary from a Holder with respect to any of the Deposited Securities
represented by such Holder's ADSs on or before the date established by the
Depositary for such purpose, the Depositary shall deem such Holder to have
instructed the Depositary to give a discretionary proxy to a person designated
by the Company with respect to such Deposited Securities and the Depositary
shall give a discretionary proxy to a person designated by the Company to vote
such Deposited Securities; provided, however, that no such instruction shall be
deemed given and no such discretionary proxy shall be given with respect to any
matter as to which the Company informs the Depositary (and the Company agrees to
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provide such information as promptly as practicable in writing, if applicable)
that (x) the Company does not wish such proxy given, (y) the Company is aware
that substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares; provided, further, that the Company
will have no liability to any Holder or Beneficial Owner resulting from such
notification. Notwithstanding anything else contained herein, the Depositary
shall, if so requested in writing by the Company, represent all Deposited
Securities (whether or not voting instructions have been received in respect of
such Deposited Securities from Holders as of the ADS Record Date) for the sole
purpose of establishing quorum at a meeting of Shareholders.
Notwithstanding any other provision in the Deposit Agreement, the
Company's board of directors may, pursuant to the provisions of or governing the
Deposited Securities suspend the voting rights of any Deposited Securities. If
the Company's board of directors suspends such rights, the Company will promptly
provide a notice to the Depositary, specifying (i) the identity of the Holder or
Beneficial Owner to be disenfranchised of its voting rights with respect to
ADSs, (ii) the matters upon which such Holder or Beneficial Owner may not vote
or instruct the Depositary or Custodian to vote the Deposited Securities and
(iii) instructions to the Depositary with respect to such other actions as it
may deem necessary or desirable to enforce the restrictions on the exercise of
voting rights set forth in the preceding sentence. The Depositary will use all
reasonable efforts to comply with such Company instructions (provided such
instructions are in compliance with applicable laws), and Holders and Beneficial
Owners of ADSs agree to comply with any Company instructions in respect of any
such restrictions or instructions.
Notwithstanding anything else contained in the Deposit Agreement or this
ADR, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws. The
Company agrees to take any and all actions reasonably necessary to enable
Holders and Beneficial Owners to exercise the voting rights accruing to the
Deposited Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so reasonably requested by the
Depositary. There can be no assurance that Holders or Beneficial Owners
generally or any Holder or Beneficial Owner in particular will receive the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
Subject to the applicable laws or rules of any securities exchange on
which the Deposited Securities are listed or traded, at least three (3) days
prior to the date of such meeting, the Depositary shall, if requested and at the
expense of the Company, deliver to the Company copies of all voting instructions
received from Holders, if any, in accordance with which the Depositary will
vote, or cause the Custodian to vote, the Deposited Securities represented by
the ADSs at such meeting.
(18) Changes Affecting Deposited Securities. Upon any change in nominal or
par value, split-up, cancellation, consolidation or any other reclassification
of Deposited Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it is a party,
any securities which shall be received by the Depositary or the Custodian in
exchange for, or in conversion of or replacement of or otherwise in respect of,
such Deposited Securities shall, to the extent permitted by law, be treated as
new Deposited Securities under the Deposit Agreement, and the ADSs shall,
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subject to the terms of the Deposit Agreement and applicable laws, including any
applicable provisions of the Securities Act and the Exchange Act, thenceforth
represent the new Deposited Securities so received, unless additional or new
ADSs are created pursuant to the following sentence. The Depositary may, with
the Company's approval, and shall, if the Company shall so request, subject to
the terms of the Deposit Agreement and receipt of an opinion of counsel to the
Company reasonably satisfactory to the Depositary that such distributions are
not in violation of any applicable laws or regulations, issue additional ADSs as
in the case of a stock dividend on the Shares, or call for the surrender of
outstanding ADRs to be exchanged for new ADRs, in either case, as well as in the
event of newly deposited Shares, with necessary modifications to the form of ADR
contained in this Exhibit A to the Deposit Agreement, specifically describing
such new Deposited Securities or corporate change. Notwithstanding the
foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders in the reasonable judgment of the Depositary
after consultation with the Company, the Depositary may, with the Company's
approval, and shall if the Company requests, subject to receipt of an opinion of
Company's counsel reasonably satisfactory to the Depositary that such action is
not in violation of any applicable laws or regulations, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a)
applicable fees and charges of, and expenses incurred by, the Depositary (in
each case, as set forth in Section 5.9 of, and Exhibit B to, the Deposit
Agreement), (b) governmental charges and (c) taxes) for the account of the
Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1 of the Deposit
Agreement. Neither the Depositary nor the Company shall be responsible for (i)
any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
As soon as reasonably practicable following receipt of notice of the
occurrence of any such change, conversion or exchange covered by this section in
respect of the Deposited Securities, the Depositary shall, subject to applicable
laws, given notice thereof in writing, at the Company's expense, to all Holders.
(19) Exoneration. The Depositary and the Company undertake to perform such
duties and only such duties as are specifically set forth in the Deposit
Agreement, and no implied covenants or obligations shall be read into the
Deposit Agreement against the Depositary or the Company. Neither the Depositary
nor the Company shall be obligated to do or perform any act which is
inconsistent with the provisions of the Deposit Agreement or incur any liability
(i) if the Depositary or the Company shall be prevented or forbidden from, or
delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement and this ADR, by reason of any provision of any present or
future law or regulation of the United States, the Cayman Islands, Hong Kong or
any other country, or of any other governmental authority or regulatory
authority or stock exchange, or on account of possible criminal or civil
penalties or restraint, or by reason of any provision, present or future, of the
Memorandum and Articles of Association of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
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nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, acts of terrorism, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of or failure to exercise, any
discretion provided for in the Deposit Agreement or in the Memorandum and
Articles of Association of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, any Beneficial Owner or authorized representative thereof,
or any other person believed by it in good faith to be competent to give such
advice or information, (iv) for the inability by a Holder or Beneficial Owner to
benefit from any distribution, offering, right or other benefit which is made
available to holders of Deposited Securities but is not, under the terms of the
Deposit Agreement, made available to Holders of ADSs or (v) for any
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. Except as otherwise provided herein, the Company and the Depositary
assume no liability for any act taken or for any failure to take any act
required to be taken hereunder. The Depositary, its directors, officers,
employees, agents and Affiliates, as well as the Custodian and the Company,
their respective directors, officers, employees, agents, and Affiliates, may
rely and shall be protected in acting upon any written notice, request or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. No disclaimer of liability under the Securities Act
is intended by any provision of the Deposit Agreement or this ADR.
(20) Standard of Care. The Company, the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or this ADR to any Holder(s) or Beneficial Owner(s), except
that the Company and Depositary agree to perform their respective obligations
specifically set forth in the Deposit Agreement and this ADR without negligence
or bad faith. Without limitation of the foregoing, neither the Depositary, nor
the Company, nor any of their respective directors, officers, employees, agents
or Affiliates, shall be under any obligation to appear in, prosecute or defend
any action, suit or other proceeding in respect of any Deposited Securities or
in respect of the ADSs, 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 (and no Custodian shall be under any obligation whatsoever with respect
to such proceedings, the responsibility of the Custodian being solely to the
Depositary). Neither the Depositary and its agents nor the Company shall be
liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. Neither the Depositary nor
the Company shall incur any liability for any failure to determine that any
distribution or action may be lawful or reasonably practicable, for any
investment risk associated with acquiring an interest in the Deposited
Securities, for the validity or worth of the Deposited Securities, for any tax
consequences that may result from the ownership of ADSs, Shares or Deposited
Securities, or for the credit-worthiness of any third party. The Depositary
shall not incur any liability for the content of any information submitted to it
by the Company for distribution to the Holders or for any inaccuracy of any
translation thereof, for allowing any rights to lapse upon the terms of the
Deposit Agreement or for the failure or timeliness of any notice from the
Company.
(21) Resignation and Removal of the Depositary; Appointment of Successor
Depositary. The Depositary may at any time resign as Depositary under the
Deposit Agreement by written notice of resignation delivered to the Company,
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such resignation to be effective on the earlier of (i) the 90th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii)
the appointment by the Company 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 written notice of such removal, which removal
shall be effective on the earlier of (i) the 90th day after delivery thereof to
the Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. In case at any time the
Depositary acting hereunder shall resign or be removed, the Company shall use
commercially reasonable efforts to appoint a successor depositary, which shall
be a bank or trust company having an office in the Borough of Manhattan, the
City of New York. Every successor depositary shall be required by the Company to
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
laws), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor (other than as contemplated in Sections 5.8 and
5.9 of the Deposit Agreement). The predecessor depositary, upon payment of all
sums due it and on the written request of the Company, shall (i) execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder (other than as contemplated in Sections 5.8 and 5.9
of the Deposit Agreement), (ii) duly assign, transfer and deliver all right,
title and interest to the Deposited Securities to such successor, and (iii)
deliver to such successor a list of the Holders of all outstanding ADSs and such
books and records maintained by such predecessor with respect to its function as
Depositary hereunder, and such other information relating to ADSs and Holders
thereof as the successor may reasonably request. Any such successor depositary
shall promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
paragraph (22) and Section 6.1 of the Deposit Agreement and applicable laws,
this ADR and any provisions of the Deposit Agreement may at any time and from
time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the prior written consent of the Holders or Beneficial Owners. Any
amendment or supplement which shall impose or increase any fees or charges
(other than the charges in connection with foreign exchange control regulations,
and taxes and other governmental charges, delivery and other such expenses), or
which shall otherwise materially prejudice any substantial existing right of
Holders or Beneficial Owners, shall not, however, become effective as to
outstanding ADSs until the expiration of thirty (30) days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
ADSs. The parties hereto agree that any amendments or supplements which (i) are
reasonably necessary (as agreed by the Company and the Depositary) in order for
(a) the ADSs to be registered on Form F-6 under the Securities Act or (b) the
ADSs 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 to not materially prejudice any substantial rights of Holders or
Beneficial Owners. Every Holder and Beneficial Owner at the time any amendment
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or supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s) or to hold any beneficial interest therein, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement and this ADR as
amended or supplemented thereby. In no event shall any amendment or supplement
impair the right of the Holder to surrender ADSs and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable laws. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would
require an amendment of, or supplement to, the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and this 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 with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all ADSs then outstanding at least thirty
(30) days prior to the date fixed in such notice for such termination. If ninety
(90) days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in Section 5.4 of
the Deposit Agreement, the Depositary may terminate the Deposit Agreement by
providing notice of such termination to the Holders of all ADSs then outstanding
at least thirty (30) days prior to the date fixed for such termination. On and
after the date of termination of the Deposit Agreement, the Holder of an ADS
will, upon surrender of such ADS at the Principal Office of the Depositary, upon
the payment of the charges of the Depositary for the surrender of ADSs referred
to in paragraph (2) hereof and in Section 2.7 of the Deposit Agreement and
subject to the conditions and restrictions therein set forth, and upon payment
of any applicable taxes or governmental charges, be entitled to Delivery, to him
or upon his order, of the amount of Deposited Securities represented by such
ADS. If any ADSs shall remain outstanding after the date of termination of the
Deposit Agreement, the Registrar thereafter shall discontinue the registration
of transfers of ADSs, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, shall not accept deposits of Shares (and shall
instruct the Custodian to act accordingly) and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell property and rights as provided
in the Deposit Agreement, and shall continue to deliver Deposited Securities,
subject to the conditions and restrictions set forth in Section 2.7 of the
Deposit Agreement, together with any dividends or other distributions received
with respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for ADSs surrendered to the Depositary (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of an ADS, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). At any time after the
expiration of one month from the date of termination of the Deposit Agreement,
the Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, in an unsegregated account, without
liability for interest, for the pro rata benefit of the Holders whose ADSs have
A-22
not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement with respect to
the ADRs, the Deposited Securities and the ADSs, except to account for such net
proceeds and other cash (after deducting, or charging, as the case may be, in
each case, the charges of the Depositary for the surrender of an ADS, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in Sections 5.8, 5.9 and 7.6 of the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any provisions
in this ADR or the Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to the Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
(25) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this paragraph (25) and Section 5.10 of the Deposit
Agreement, the Depositary, its Affiliates and their agents, on their own behalf,
may own and deal in any class of securities of the Company and its Affiliates
and in ADSs. In its capacity as Depositary, the Depositary shall not lend Shares
or ADSs; provided, however, that subject to the terms and provisions of Section
5.10 of the Deposit Agreement and to the extent permitted by applicable laws,
the Depositary may, unless otherwise requested in writing by the Company to
cease doing so, (i) issue ADSs prior to the receipt of Shares pursuant to
Section 2.3 of the Deposit Agreement (each such transaction a "Pre-Release
Transaction") and (ii) deliver Shares only upon the prior receipt and
cancellation of ADSs for withdrawal of Deposited Securities pursuant to Section
2.7 of the Deposit Agreement, including ADSs which were issued under (i) above
but for which Shares may not have been received. The Depositary may receive ADSs
in lieu of Shares under (i) above in settlement of a Pre-Release Transaction.
Each such Pre-Release Transaction will be (a) subject to a written agreement
whereby the person or entity (the "Applicant") to whom ADSs are to be delivered
(v) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares that are to be delivered by the Applicant under
such Pre-Release Transaction, (w) agrees to indicate the Depositary as owner of
such Shares in its records and to hold such Shares in trust for the Depositary
until such Shares are delivered to the Depositary or the Custodian, (x)
unconditionally guarantees to deliver such Shares to the Depositary or the
Custodian, as applicable, (y) agrees (i) to indemnify the Depositary, its
Custodian and the Company for all damages, costs and expenses arising out of any
Pre-Release Transaction requested by the Applicant or its customer, (ii) to
submit to the jurisdiction of the federal or state courts located in the county
and state of New York for the resolution of any claims brought in respect of a
Pre-Release Transaction, and (iii) that, at the time of the Pre-Release
Transaction, the Applicant or its customer assigns, conveys and transfers to the
Depositary, and that each Pre-Release Transaction shall constitute an
assignment, conveyance and transfer to the Depositary of, the Shares and all
beneficial right, title and interest therein, including, without limitation (1)
the right to vote or otherwise act with respect to discretionary corporate
actions, (2) any and all distributions with respect to such Shares and (3) any
and all tax credits or refunds arising from such distributions, and (z) agrees
to any additional restrictions or requirements that the Depositary deems
A-23
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days' notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the number of ADSs and
Shares involved in such Pre-Release Transactions at any one time to thirty
percent (30%) of the ADSs outstanding (without giving effect to ADSs outstanding
under (i) above), provided, however, that the Depositary reserves the right to
change or disregard such limit from time to time as it deems appropriate. The
Depositary undertakes, for the benefit of the Company, that it shall enter into
a Pre-Release Transaction only in a manner that will not, under applicable laws
existing on the date of the Pre-Release Transaction, cause any U.S. federal
income tax consequences to Holders of ADSs to differ from those that would have
occurred had there been no such Pre-Release Transaction. The Depositary may also
set limits with respect to the number of ADSs and Shares involved in Pre-Release
Transactions with any one person on a case-by-case basis as it deems
appropriate. The Depositary may retain for its own account any compensation
received by it in conjunction with the foregoing. Collateral provided pursuant
to (b) above, but not earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
A-24
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _____________________ whose taxpayer identification number is
________________ and whose address including postal zip code is
________________, the within ADR and all rights thereunder, hereby irrevocably
constituting and appointing ______________________ attorney-in-fact to transfer
said ADR on the books of the Depositary with full power of substitution in the
premises.
Dated: Name:
---------------------------------------
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an
attorney, executor, administrator, trustee
or guardian, the person executing the
endorsement must give his/her full title in
such capacity and proper evidence of
authority to act in such capacity, if not on
file with the Depositary, must be forwarded
with this ADR.
-------------------------------
SIGNATURE GUARANTEED All endorsements or assignments of ADRs must
be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
Legends
The ADRs issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the ADR: "This ADR evidences ADSs
representing 'partial entitlement' Ordinary Shares of ▇▇▇▇▇▇▇▇▇
Telecommunications International Limited and as such do not entitle the holders
thereof to the same per-share entitlement as other Ordinary Shares (which are
'full entitlement' Ordinary Shares) issued and outstanding at such time. The
ADSs represented by this ADR shall entitle holders to distributions and
entitlements identical to other ADSs when the Ordinary Shares represented by
such ADSs become 'full entitlement' Ordinary Shares."
A-25
3257356v.6
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
The Holders, the Beneficial Owners and the persons depositing Shares or
surrendering ADSs for cancellation agree to pay the following fees of the
Depositary:
--------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
--------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to U.S. $5.00 per 100 ADSs (or Person depositing Shares or
of Shares (excluding issuances fraction thereof) issued. person receiving ADSs.
contemplated by paragraphs
(3)(b) and (5) below).
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(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for
Securities against surrender of fraction thereof) surrendered. purpose of withdrawal of
ADSs. Deposited Securities or person
to whom Deposited Securities
are delivered.
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(3) Distribution of (a) cash The fees specified in (1) above shall be Person to whom distribution is
dividends or (b) ADSs pursuant to payable for a distribution of ADSs made.
stock dividends (or other free pursuant to stock dividends (or other
distribution of stock). free distribution of stock) and the fees
specified in (4) below shall be payable
for distributions of cash.
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(4) Distribution of cash proceeds Up to U.S. $2.00 per 100 ADSs (or Person to whom distribution is
(i.e., upon sale of rights and fraction thereof) held. made.
other entitlements).
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(5) Distribution of securities Up to U.S. $5.00 per unit of 100 Person to whom distribution is
other than ADSs or rights to securities (or fraction made.
purchase additional ADSs (i.e., thereof) distributed.
spin-off shares).
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(6) Distribution of ADSs pursuant Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is
to exercise of rights to purchase fraction thereof) issued. made.
additional ADSs.
------------------------------------------ ------------------------------------------ --------------------------------
B-1
II. Charges
Holders, Beneficial Owners, persons depositing Shares and persons
surrendering ADSs for cancellation and withdrawal of Deposited Securities shall
be responsible for the following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of
the person depositing or withdrawing Shares or Holders and Beneficial
Owners of ADSs;
(iv) the reasonable expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
(vi) the fees and expenses incurred by the Depositary, the Custodian or any
nominee in connection with the delivery or servicing of Deposited
Securities (unless prohibited by the exchange upon which the ADSs are
listed).
B-2