KINGTONE WIRELESSINFO SOLUTION HOLDING LTD AND THE BANK OF NEW YORK MELLON
Exhibit
4.1
AND
THE BANK
OF NEW YORK MELLON
As
Depositary
AND
OWNERS
AND HOLDERS OF AMERICAN DEPOSITARY SHARES
Dated as
of ___________, 2010
TABLE OF
CONTENTS
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ARTICLE
1. DEFINITIONS
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1
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SECTION
1.01 American Depositary Shares.
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1
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SECTION
1.02 BVI
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2
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SECTION
1.03 Commission.
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2
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SECTION
1.04 Company.
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2
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SECTION
1.05 Custodian.
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2
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SECTION
1.06 Deliver; Surrender.
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2
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SECTION
1.07 Deposit Agreement.
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3
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SECTION
1.08 Depositary; Corporate Trust
Office.
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3
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SECTION
1.09 Deposited Securities.
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3
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SECTION
1.10 Dollars.
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3
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SECTION
1.11 DTC.
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3
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SECTION
1.12 Foreign Registrar.
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3
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SECTION
1.13 Holder.
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4
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SECTION
1.14 Owner.
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4
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SECTION
1.15 Receipts.
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4
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SECTION
1.16 Registrar.
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4
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SECTION
1.17 Restricted Securities.
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4
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SECTION
1.18 Securities Act of 1933.
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5
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SECTION
1.19 Shares.
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5
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ARTICLE 2.
FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY,
TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY
SHARES
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5
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SECTION
2.01 Form of Receipts; Registration and Transferability
of American Depositary Shares.
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5
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SECTION
2.02 Deposit of Shares.
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6
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SECTION
2.03 Delivery of American Depositary
Shares.
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7
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SECTION
2.04 Registration of Transfer of American Depositary
Shares; Combination and Split-up of Receipts; Interchange of Certificated
and Uncertificated American Depositary Shares.
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8
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SECTION
2.05 Surrender of American Depositary Shares and
Withdrawal of Deposited Securities.
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8
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SECTION
2.06 Limitations on Delivery, Transfer and Surrender of
American Depositary Shares.
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9
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SECTION
2.07 Lost Receipts, etc.
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10
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SECTION
2.08 Cancellation and Destruction of Surrendered
Receipts.
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10
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SECTION
2.09 Pre-Release of American Depositary
Shares.
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11
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ii
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SECTION
2.10 DTC Direct Registration System and Profile
Modification System.
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11
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ARTICLE 3.
CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF
AMERICAN DEPOSITARY SHARES
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12
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SECTION
3.01 Filing Proofs, Certificates and Other
Information.
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12
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SECTION
3.02 Liability of Owner for
Taxes.
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13
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SECTION
3.03 Warranties on Deposit of
Shares.
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13
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ARTICLE 4.
THE DEPOSITED SECURITIES
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13
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SECTION
4.01 Cash Distributions.
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13
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SECTION
4.02 Distributions Other Than Cash, Shares or
Rights.
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14
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SECTION
4.03 Distributions in Shares.
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15
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SECTION
4.04 Rights.
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15
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SECTION
4.05 Conversion of Foreign
Currency.
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17
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SECTION
4.06 Fixing of Record Date.
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18
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SECTION
4.07 Voting of Deposited
Securities.
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18
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SECTION
4.08 Changes Affecting Deposited
Securities.
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19
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SECTION
4.09 Reports.
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19
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SECTION
4.10 Lists of Owners.
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20
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SECTION
4.11 Withholding.
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20
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ARTICLE 5.
THE DEPOSITARY, THE CUSTODIANS AND THE
COMPANY
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20
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SECTION
5.01 Maintenance of Office and Transfer Books by the
Depositary.
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20
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SECTION
5.02 Prevention or Delay in Performance by the
Depositary or the Company.
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21
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SECTION
5.03 Obligations of the Depositary, the Custodian and
the Company.
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21
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SECTION
5.04 Resignation and Removal of the
Depositary.
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22
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SECTION
5.05 The Custodians.
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23
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SECTION
5.06 Notices and Reports.
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24
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SECTION
5.07 Distribution of Additional Shares, Rights,
etc.
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24
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SECTION
5.08 Indemnification.
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25
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SECTION
5.09 Charges of Depositary.
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26
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SECTION
5.10 Retention of Depositary
Documents.
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27
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SECTION
5.11 Exclusivity.
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27
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SECTION
5.12 List of Restricted Securities
Owners.
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27
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ARTICLE
6.
AMENDMENT AND
TERMINATION
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28
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iii
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SECTION
6.01 Amendment.
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28
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SECTION
6.02 Termination.
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28
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ARTICLE 7.
MISCELLANEOUS
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29
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SECTION
7.01 Counterparts.
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29
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SECTION
7.02 No Third Party
Beneficiaries.
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29
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SECTION
7.03 Severability.
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29
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SECTION
7.04 Owners and Holders as Parties; Binding
Effect.
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30
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SECTION
7.05 Notices.
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30
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SECTION 7.06 Arbitration; Settlement of
Disputes.
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31
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SECTION
7.07 Submission to Jurisdiction; Appointment of Agent
for Service of Process; Jury Trial Waiver.
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32
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SECTION
7.08 Waiver of Immunities.
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32
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SECTION
7.09 Governing Law.
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33
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iv
DEPOSIT
AGREEMENT dated as of __________, 2010, among KINGTONE WIRELESSINFO SOLUTION
HOLDING LTD, incorporated under the laws of the British Virgin Islands (herein
called the Company), THE BANK OF NEW YORK MELLON, a New York banking corporation
(herein called the Depositary), and all Owners and Holders from time to time of
American Depositary Shares issued hereunder.
WITNESSETH:
WHEREAS,
the Company desires to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of Shares (as hereinafter defined) of the Company
from time to time with the Depositary or with the Custodian (as hereinafter
defined) as agent of the Depositary for the purposes set forth in this Deposit
Agreement, for the creation of American Depositary Shares representing the
Shares so deposited and for the execution and delivery of American Depositary
Receipts evidencing the American Depositary Shares; and
WHEREAS,
the American Depositary Receipts are to be substantially in the form of Exhibit
A annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW,
THEREFORE, in consideration of the premises, it is agreed by and between the
parties hereto as follows:
ARTICLE
1. DEFINITIONS
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION
1.01 American Depositary
Shares.
The term
“American Depositary Shares” shall mean the securities created under this
Deposit Agreement representing rights with respect to the Deposited Securities.
American Depositary Shares may be certificated securities evidenced by Receipts
or uncertificated securities. The form of Receipt annexed as Exhibit
A to this Deposit Agreement shall be the prospectus required under the
Securities Act of 1933 for sales of both certificated and uncertificated
American Depositary Shares. Except for those provisions of this
Deposit Agreement that refer specifically to Receipts, all the provisions of
this Deposit Agreement shall apply to both certificated and uncertificated
American Depositary Shares. Each American Depositary Share shall
represent the number of Shares specified in Exhibit A to this Deposit Agreement,
until there shall occur a distribution upon Deposited Securities covered by
Section 4.03 or a change in Deposited Securities covered by Section 4.08 with
respect to which additional American Depositary Shares are not delivered, and
thereafter American Depositary Shares shall represent the amount of Shares or
Deposited Securities specified in such Sections.
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SECTION
1.02 BVI
The term “BVI” shall mean the British
Virgin Islands.
SECTION
1.03 Commission.
The term
“Commission” shall mean the Securities and Exchange Commission of the United
States or any successor governmental agency in the United States.
SECTION
1.04 Company.
The term
“Company” shall mean Wirelessinfo Solution Holding Ltd, incorporated under the
laws of the British Virgin Islands, and its successors.
SECTION
1.05 Custodian.
The term
“Custodian” shall mean the principal Hong Kong office of The Hongkong and
Shanghai Banking Corporation Limited, as agent of the Depositary for the
purposes of this Deposit Agreement, and any other firm or corporation which may
hereafter be appointed by the Depositary pursuant to the terms of Section 5.05,
as substitute or additional custodian or custodians hereunder, as the context
shall require and shall also mean all of them collectively.
SECTION
1.06 Deliver;
Surrender.
(a) The
term “deliver”, or its noun form, when used with respect to Shares or other
Deposited Securities, shall mean (i) book-entry transfer of those
Shares or other Deposited Securities to an account maintained by an institution
authorized under applicable law to effect transfers of such securities
designated by the person entitled to that delivery or (ii) physical transfer of
certificates evidencing those Shares or other Deposited Securities registered in
the name of, or duly endorsed or accompanied by proper instruments of transfer
to, the person entitled to that delivery.
(b) The
term “deliver”, or its noun form, when used with respect to American Depositary
Shares, shall mean (i) book-entry transfer of American Depositary Shares to an
account at DTC designated by the person entitled to such delivery, evidencing
American Depositary Shares registered in the name requested by that
person, (ii) registration of American Depositary Shares not evidenced
by a Receipt on the books of the Depositary in the name requested by the person
entitled to such delivery and mailing to that person of a statement
confirming that registration or (iii) if requested by the person entitled to
such delivery, delivery at the Corporate Trust Office of the Depositary to the
person entitled to such delivery of one or more Receipts.
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(c) The
term “surrender”, when used with respect to American Depositary Shares, shall
mean (i) one or more book-entry transfers of American Depositary Shares to the
DTC account of the Depositary, (ii) delivery to the Depositary at its Corporate
Trust Office of an instruction to surrender American Depositary Shares not
evidenced by a Receipt or (iii) surrender to the Depositary at its Corporate
Trust Office of one or more Receipts evidencing American Depositary
Shares.
SECTION
1.07 Deposit
Agreement.
The term
“Deposit Agreement” shall mean this Agreement, as the same may be amended from
time to time in accordance with the provisions hereof.
SECTION
1.08 Depositary; Corporate Trust
Office.
The term
“Depositary” shall mean The Bank of New York Mellon, a New York banking
corporation, and any successor as depositary hereunder. The term
“Corporate Trust Office”, when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Deposit Agreement is ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION
1.09 Deposited
Securities.
The term
“Deposited Securities” as of any time shall mean Shares at such time deposited
or deemed to be deposited under this Deposit Agreement, including without
limitation Shares that have not been successfully delivered upon surrender of
American Depositary Shares, and any and all other securities, property and cash
received by the Depositary or the Custodian in respect thereof and at such time
held under this Deposit Agreement, subject as to cash to the provisions of
Section 4.05.
SECTION
1.10 Dollars.
The term
“Dollars” shall mean United States dollars.
SECTION
1.11 DTC.
The term
“DTC” shall mean The Depository Trust Company or its successor.
SECTION
1.12 Foreign
Registrar.
The term
“Foreign Registrar” shall mean the entity that presently carries out the duties
of registrar for the Shares or any successor as registrar for the Shares and any
other agent of the Company for the transfer and registration of Shares,
including without limitation any securities depository for the
Shares.
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SECTION
1.13 Holder.
The term
“Holder” shall mean any person holding a Receipt or a security entitlement or
other interest in American Depositary Shares, whether for its own account or for
the account of another person, but that is not the Owner of that Receipt or
those American Depositary Shares.
SECTION
1.14 Owner.
The term
“Owner” shall mean the person in whose name American Depositary Shares are
registered on the books of the Depositary maintained for such
purpose.
SECTION
1.15 Receipts.
The term
“Receipts” shall mean the American Depositary Receipts issued hereunder
evidencing certificated American Depositary Shares, as the same may be amended
from time to time in accordance with the provisions hereof.
SECTION
1.16 Registrar.
The term
“Registrar” shall mean any bank or trust company having an office in the Borough
of Manhattan, The City of New York, that is appointed by the Depositary to
register American Depositary Shares and transfers of American Depositary Shares
as herein provided.
SECTION
1.17 Restricted
Securities.
The term
“Restricted Securities” shall mean Shares, or American Depositary Shares
representing Shares, that are acquired directly or indirectly from the Company
or its affiliates (as defined in Rule 144 under the Securities Act of 1933) in a
transaction or chain of transactions not involving any public offering, or that
are subject to resale limitations under Regulation D under the Securities Act of
1933 or both, or which are held by an officer, director (or persons performing
similar functions) or other affiliate of the Company, or that would require
registration under the Securities Act of 1933 in connection with the offer and
sale thereof in the United States, or that are subject to other restrictions on
sale or deposit under the laws of the United States or the BVI, or under a
shareholder agreement or the articles of association or similar document of the
Company.
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SECTION
1.18 Securities Act of
1933.
The term
“Securities Act of 1933” shall mean the United States Securities Act of 1933, as
from time to time amended.
SECTION
1.19 Shares.
The term
“Shares” shall mean ordinary shares of the Company that are validly issued and
outstanding and fully paid, nonassessable and that were not issued in violation
of any pre-emptive or similar rights of the holders of outstanding securities of
the Company; provided, however, that, if
there shall occur any change in nominal value, a split-up or consolidation or
any other reclassification or, upon the occurrence of an event described in
Section 4.08, an exchange or conversion in respect of the Shares of the Company,
the term “Shares” shall thereafter also mean the successor securities resulting
from such change in nominal value, split-up or consolidation or such other
reclassification or such exchange or conversion.
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ARTICLE
2.
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FORM
OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND SURRENDER OF
AMERICAN DEPOSITARY SHARES
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SECTION
2.01 Form of Receipts;
Registration and Transferability of American Depositary
Shares.
Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed to
this Deposit Agreement, with appropriate insertions, modifications and
omissions, as hereinafter provided. No Receipt shall be entitled to
any benefits under this Deposit Agreement or be valid or obligatory for any
purpose, unless such Receipt shall have been (i) executed by the Depositary by
the manual signature of a duly authorized officer of the Depositary or (ii)
executed by the facsimile signature of a duly authorized officer of the
Depositary and countersigned by the manual signature of a duly authorized
signatory of the Depositary or a Registrar. The Depositary shall
maintain books on which (x) each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered
and (y) all American Depositary Shares delivered as hereinafter provided and all
registrations of transfer of American Depositary Shares shall be
registered. A Receipt bearing the facsimile signature of a person
that was at any time a proper officer of the Depositary shall, subject to the
other provisions of this paragraph, bind the Depositary, notwithstanding that
such person was not a proper officer of the Depositary on the date of issuance
of that Receipt.
The
Receipts may, and upon written request of the Company shall, be endorsed with or
have incorporated in the text thereof such legends or recitals or modifications
not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or the Company or required to comply with any
applicable law or regulations thereunder or with the rules and regulations of
any securities exchange upon which American Depositary Shares may be listed or
to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject by
reason of the date of issuance of the underlying Deposited Securities or
otherwise.
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American
Depositary Shares evidenced by a Receipt, when properly endorsed or accompanied
by proper instruments of transfer, shall be transferable as certificated
registered securities under the laws of New York. American Depositary Shares not
evidenced by Receipts shall be transferable as uncertificated registered
securities under the laws of New York. The Depositary,
notwithstanding any notice to the contrary, may treat the Owner of American
Depositary Shares as the absolute owner thereof for the purpose of determining
the person entitled to distribution of dividends or other distributions or to
any notice provided for in this Deposit Agreement and for all other purposes,
and neither the Depositary nor the Company shall have any obligation or be
subject to any liability under this Deposit Agreement to any holder of American
Depositary Shares unless that holder is the Owner of those American Depositary
Shares.
SECTION
2.02 Deposit of
Shares.
Subject
to the terms and conditions of this Deposit Agreement, Shares or evidence of
rights to receive Shares may be deposited by delivery thereof to any Custodian
hereunder, accompanied by any appropriate instruments or instructions for
transfer, or endorsement, in form satisfactory to the Custodian, together with
all such certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to deliver to,
or upon the written order of, the person or persons stated in such order, the
number of American Depositary Shares representing such deposit.
No Share
shall be accepted for deposit unless accompanied by evidence satisfactory to the
Depositary that any necessary approval has been granted by any governmental body
in any relevant jurisdiction that is then performing the function of the
regulation of currency exchange. If required by the Depositary, Shares presented
for deposit at any time, whether or not the transfer books of the Company or the
Foreign Registrar, if applicable, are closed, shall also be accompanied by an
agreement or assignment, or other instrument satisfactory to the Depositary,
which will provide for the prompt transfer to the Custodian of any dividend, or
right to subscribe for additional Shares or to receive other property which any
person in whose name the Shares are or have been recorded may thereafter receive
upon or in respect of such deposited Shares, or in lieu thereof, such agreement
of indemnity or other agreement as shall be satisfactory to the
Depositary.
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At the
request and risk and expense of any person proposing to deposit Shares, and for
the account of such person, the Depositary may receive certificates for Shares
to be deposited, together with the other instruments herein specified, for the
purpose of forwarding such Share certificates to the Custodian for deposit
hereunder.
Upon each
delivery to a Custodian of a certificate or certificates for Shares to be
deposited hereunder, together with the other documents specified above, such
Custodian shall, as soon as transfer and recordation can be accomplished,
present such certificate or certificates to the Company or the Foreign
Registrar, if applicable, for transfer and recordation of the Shares being
deposited in the name of the Depositary or its nominee or such Custodian or its
nominee.
Deposited
Securities shall be held by the Depositary or by a Custodian for the account and
to the order of the Depositary or at such other place or places as the
Depositary shall determine.
SECTION
2.03 Delivery of American
Depositary Shares.
Upon
receipt by any Custodian of any deposit pursuant to Section 2.02 hereunder,
together with the other documents required as specified above, such Custodian
shall notify the Depositary of such deposit and the person or persons to whom or
upon whose written order American Depositary Shares are deliverable in respect
thereof and the number of American Depositary Shares to be so delivered. Such
notification shall be made by letter or, at the request, risk and expense of the
person making the deposit, by cable, telex or facsimile transmission (and in
addition, if the transfer books of the Company or the Foreign Registrar, if
applicable, are open, the Depositary may in its sole discretion require a proper
acknowledgment or other evidence from the Company or the Foreign Registrar that
any Deposited Securities have been recorded upon the books of the Company or the
Foreign Registrar, if applicable, in the name of the Depositary or its nominee
or such Custodian or its nominee). Upon receiving such notice from
such Custodian, or upon the receipt of Shares or evidence of the right to
receive Shares by the Depositary, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall deliver, to or upon the order of the
person or persons entitled thereto, the number of American Depositary Shares
issuable in respect of that deposit, but only upon payment to the Depositary of
the fees and expenses of the Depositary for the delivery of such American
Depositary Shares as provided in Section 5.09, and of all taxes and governmental
charges and fees payable in connection with such deposit and the transfer of the
Deposited Securities.
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SECTION
2.04 Registration of Transfer of
American Depositary Shares; Combination and Split-up of Receipts; Interchange of
Certificated and Uncertificated American Depositary
Shares.
The
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
register transfers of American Depositary Shares on its transfer books from time
to time, upon (i) in the case of certificated American Depositary Shares,
surrender of the Receipt evidencing those American Depositary Shares, by the
Owner in person or by a duly authorized attorney, properly endorsed or
accompanied by proper instruments of transfer or (ii) in the case of
uncertificated American Depositary Shares, receipt from the Owner of a proper
instruction (including, for the avoidance of doubt, instructions through DRS and
Profile as provided in Section 2.10), and, in either case, duly stamped as may
be required by the laws of the State of New York and of the United States of
America. Thereupon the Depositary shall deliver those American Depositary Shares
to or upon the order of the person entitled thereto.
The
Depositary, subject to the terms and conditions of this Deposit Agreement, shall
upon surrender of a Receipt or Receipts for the purpose of effecting a split-up
or combination of such Receipt or Receipts, execute and deliver a new Receipt or
Receipts for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
The
Depositary, upon surrender of certificated American Depositary Shares for the
purpose of exchanging for uncertificated American Depositary Shares, shall
cancel those certificated American Depositary Shares and send the Owner a
statement confirming that the Owner is the owner of the same number of
uncertificated American Depositary Shares. The Depositary, upon receipt of a
proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile as provided in Section 2.10) from the Owner of uncertificated
American Depositary Shares for the purpose of exchanging for certificated
American Depositary Shares, shall cancel those uncertificated American
Depositary Shares and deliver to the Owner the same number of certificated
American Depositary Shares.
The
Depositary may appoint one or more co-transfer agents for the purpose of
effecting registration of transfers of American Depositary Shares and
combinations and split-ups of Receipts at designated transfer offices on behalf
of the Depositary. In carrying out its functions, a co-transfer agent
may require evidence of authority and compliance with applicable laws and other
requirements by Owners or persons entitled to American Depositary Shares and
will be entitled to protection and indemnity to the same extent as the
Depositary.
SECTION
2.05 Surrender of American
Depositary Shares and Withdrawal of Deposited Securities.
Upon
surrender at the Corporate Trust Office of the Depositary of American Depositary
Shares for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of the fee of the Depositary for the surrender of
American Depositary Shares as provided in Section 5.09 and payment of all taxes
and governmental charges payable in connection with such surrender and
withdrawal of the Deposited Securities, and subject to the terms and conditions
of this Deposit Agreement, the Owner of those American Depositary Shares shall
be entitled to delivery, to him or as instructed, of the amount of Deposited
Securities at the time represented by those American Depositary
Shares. Such delivery shall be made, as hereinafter provided, without
unreasonable delay.
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A Receipt
surrendered for such purposes may be required by the Depositary to be properly
endorsed in blank or accompanied by proper instruments of transfer in blank. The
Depositary may require the surrendering Owner to execute and deliver to the
Depositary a written order directing the Depositary to cause the Deposited
Securities being withdrawn to be delivered to or upon the written order of a
person or persons designated in such order. Thereupon the Depositary
shall direct the Custodian to deliver at the office of such Custodian, subject
to Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this
Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided, the
amount of Deposited Securities represented by the surrendered American
Depositary Shares, except that the Depositary may make delivery to such person
or persons at the Corporate Trust Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by those
American Depositary Shares, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the
Depositary.
At the
request, risk and expense of any Owner so surrendering American Depositary
Shares, and for the account of such Owner, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or certificates, if applicable, and other proper
documents of title for, the Deposited Securities represented by the surrendered
American Depositary Shares to the Depositary for delivery at the Corporate Trust
Office of the Depositary. Such direction shall be given by letter or,
at the request, risk and expense of such Owner, by cable, telex or facsimile
transmission.
SECTION
2.06 Limitations on Delivery,
Transfer and Surrender of American Depositary Shares.
As a
condition precedent to the delivery, registration of transfer or surrender of
any American Depositary Shares or split-up or combination of any Receipt or
withdrawal of any Deposited Securities, the Depositary, Custodian or Registrar
may require payment from the depositor of Shares or the presenter of the Receipt
or instruction for registration of transfer or surrender of American Depositary
Shares not evidenced by a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees as herein
provided, may require the production of proof satisfactory to it as to the
identity and genuineness of any signature and may also require compliance with
any regulations the Depositary may establish consistent with the provisions of
this Deposit Agreement, including, without limitation, this Section
2.06.
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The
delivery of American Depositary Shares against deposit of Shares generally or
against deposit of particular Shares may be suspended, or the transfer of
American Depositary Shares in particular instances may be refused, or the
registration of transfer of outstanding American Depositary Shares generally may
be suspended, during any period when the transfer books of the Depositary are
closed, or if any such action is deemed necessary or advisable by the Depositary
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission, or under any
provision of this Deposit Agreement, or for any other reason, subject to the
provisions of the following sentence. Notwithstanding anything to the contrary
in this Deposit Agreement, the surrender of outstanding American Depositary
Shares and withdrawal of Deposited Securities may not be suspended subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the Foreign Registrar, if applicable, 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, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the American Depositary Shares or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under this Deposit Agreement any Shares which
would be required to be registered under the provisions of the Securities Act of
1933 for public offer and sale in the United States unless a registration
statement is in effect as to such Shares for such offer and sale.
SECTION
2.07 Lost Receipts,
etc.
In case
any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary shall
deliver to the Owner the American Depositary Shares evidenced by that Receipt in
uncertificated form or, if requested by the Owner, execute and deliver a new
Receipt of like tenor in exchange and substitution for such mutilated Receipt,
upon cancellation thereof, or in lieu of and in substitution for such destroyed,
lost or stolen Receipt. Before the Depositary shall deliver American
Depositary Shares in uncertificated form or execute and deliver a new Receipt,
in substitution for a destroyed, lost or stolen Receipt, the Owner thereof shall
have (a) filed with the Depositary (i) a request for such execution and delivery
before the Depositary has notice that the Receipt has been acquired by a bona
fide purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION
2.08 Cancellation and Destruction
of Surrendered Receipts.
All
Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so
cancelled.
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SECTION
2.09 Pre-Release of American
Depositary Shares.
Notwithstanding
Section 2.03 hereof, the Depositary may deliver American Depositary Shares prior
to the receipt of Shares pursuant to Section 2.02 (a
“Pre-Release”). The Depositary may, pursuant to Section 2.05, deliver
Shares upon the surrender of American Depositary Shares that have been
Pre-Released, whether or not such cancellation is prior to the termination of
such Pre-Release or the Depositary knows that such American Depositary Shares
have been Pre-Released. The Depositary may receive American
Depositary Shares in lieu of Shares in satisfaction of a
Pre-Release. Each Pre-Release will be (a) preceded or accompanied by
a written representation from the person to whom American Depositary Shares or
Shares are to be delivered, that such person, or its customer, owns the Shares
or American Depositary Shares to be remitted, as the case may be, (b) at all
times fully collateralized with cash 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 number of Shares
represented by American Depositary Shares which are outstanding at any time as a
result of Pre-Release will not normally exceed thirty percent (30%) of the
Shares deposited hereunder; provided, however, that the
Depositary reserves the right to change or disregard such limit from time to
time as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
SECTION
2.10 DTC Direct Registration
System and Profile Modification System.
(a) Notwithstanding
the provisions of Section 2.04, the parties acknowledge that the Direct
Registration System (“DRS”) and Profile Modification System (“Profile”) shall
apply to uncertificated American Depositary Shares upon acceptance thereof to
DRS by DTC. DRS is the system administered by DTC pursuant to which
the Depositary may register the ownership of uncertificated American Depositary
Shares, which ownership shall be evidenced by periodic statements issued by the
Depositary to the Owners entitled thereto. Profile is a required
feature of DRS which allows a DTC participant, claiming to act on behalf of an
Owner of American Depositary Shares, to direct the Depositary to register a
transfer of those American Depositary Shares to DTC or its nominee and to
deliver those American Depositary Shares to the DTC account of that DTC
participant without receipt by the Depositary of prior authorization from the
Owner to register such transfer.
(b) In
connection with and in accordance with the arrangements and procedures relating
to DRS/Profile, the parties understand that the Depositary will not verify,
determine or otherwise ascertain that the DTC participant which is claiming to
be acting on behalf of an Owner in requesting a registration of transfer and
delivery as described in subsection (a) has the actual authority to act on
behalf of the Owner (notwithstanding any requirements under the Uniform
Commercial Code). For the avoidance of doubt, the provisions of
Sections 5.03 and 5.08 shall apply to the matters arising from the use of the
DRS. The parties agree that the Depositary’s reliance on and
compliance with instructions received by the Depositary through the DRS/Profile
System and in accordance with this Deposit Agreement shall not constitute
negligence or bad faith on the part of the Depositary.
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SECTION
2.11 Maintenance of
Records
The
Depositary agrees to maintain records of all Receipts surrendered and Deposited
Securities withdrawn under Section 2.05, substitute Receipts delivered under
Section 2.07, and cancelled or destroyed Receipts under Section 2.08, in keeping
with procedures ordinarily followed by stock transfer agents located in the City
of New York.
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ARTICLE
3.
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CERTAIN
OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY
SHARES
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SECTION
3.01 Filing Proofs, Certificates
and Other Information.
Any
person presenting Shares for deposit or any Owner or holder may be required from
time to time to file with the Depositary or the Custodian such proof of
citizenship or residence, exchange control approval, or such information
relating to the registration on the books of the Company or the Foreign
Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or
proper. The Depositary may withhold the delivery or registration of
transfer of American Depositary Shares or the distribution of any dividend or
sale or distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties
made. The Depositary shall provide the Company, upon the Company’s
written request and at its expense, as promptly as practicable, with copies of
any information or other materials which it receives pursuant to this Section
3.01, to the extent that disclosure is permitted under applicable
law.
SECTION
3.02 Liability of Owner for
Taxes.
If any
tax or other governmental charge shall become payable by the Custodian or the
Depositary with respect to any American Depositary Shares or any Deposited
Securities represented by any American Depositary Shares, such tax or other
governmental charge shall be payable by the Owner of such American Depositary
Shares to the Depositary. The Depositary may refuse to register any transfer of
those American Depositary Shares or any withdrawal of Deposited Securities
represented by those American Depositary Shares until such payment is made, and
may withhold any dividends or other distributions, or may sell for the account
of the Owner thereof any part or all of the Deposited Securities represented by
those American Depositary Shares, and may apply such dividends or other
distributions or the proceeds of any such sale in payment of such tax or other
governmental charge and the Owner of such American Depositary Shares shall
remain liable for any deficiency.
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SECTION
3.03 Warranties on Deposit of
Shares.
Every
person depositing Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Shares and each certificate therefor, if
applicable, are validly issued, fully paid, nonassessable and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person
shall also be deemed to represent that the deposit of such Shares and the sale
of American Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and delivery of American
Depositary Shares.
SECTION
3.04 Disclosure of
Interests.
The
Company may from time to time request Owners to provide information as to the
capacity in which such Owners own or owned American Depositary Shares and
regarding the identity of any other persons then or previously interested in
such American Depositary Shares and the nature of such interest. Each
Owner agrees to provide any information requested by the Company or the
Depositary pursuant to this Section 3.04. The Depositary agrees to
comply with reasonable written instructions received from the Company requesting
that the Depositary forward any such requests to the Owners and to forward to
the Company any such responses to such requests received by the
Depositary. The Depositary shall provide reasonable assistance to the
Company, at the Company’s request and expense, in obtaining information sought
by the Company pursuant to this Section 3.04.
ARTICLE
4. THE DEPOSITED
SECURITIES
SECTION
4.01 Cash
Distributions.
Whenever
the Depositary shall receive any cash dividend or other cash distribution on any
Deposited Securities, the Depositary shall, subject to the provisions of Section
4.05, convert such dividend or distribution into Dollars and shall distribute
the amount thus received (net of the fees and expenses of the Depositary as
provided in Section 5.09) to the Owners entitled thereto, in proportion to
the number of American Depositary Shares representing such Deposited Securities
held by them respectively; provided, however, that in the
event that the Custodian or the Depositary shall be required to withhold and
does withhold from such cash dividend or such other cash distribution an amount
on account of taxes or other governmental charges, the amount distributed to the
Owner of the American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Owner a
fraction of one cent. Any such fractional amounts shall be rounded to
the nearest whole cent and so distributed to Owners entitled
thereto. The Company or its agent will remit to the appropriate
governmental agency in any applicable jurisdiction all amounts withheld and
owing to such agency. The Depositary will forward to the Company or
its agent such information from its records as the Company may reasonably
request to enable the Company or its agent to file necessary reports with
governmental agencies, and the Depositary or the Company or its agent may file
any such reports necessary to obtain benefits under the applicable tax treaties
for the Owners.
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SECTION
4.02 Distributions Other Than
Cash, Shares or Rights.
Subject
to the provisions of Sections 4.11 and 5.09, whenever the Depositary shall
receive any distribution other than a distribution described in Section 4.01,
4.03 or 4.04, the Depositary shall cause the securities or property received by
it to be distributed to the Owners entitled thereto, after deduction or upon
payment of any fees and expenses of the Depositary or any taxes or other
governmental charges, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, in any manner
that the Depositary may deem equitable and practicable for accomplishing such
distribution; provided, however, that if in the opinion of the Depositary, after
consultation with the Company to the extent practicable, such distribution
cannot be made proportionately among the Owners entitled thereto, or if for any
other reason (including, but not limited to, any requirement that the Company or
the Depositary withhold an amount on account of taxes or other governmental
charges or that such securities must be registered under the Securities Act of
1933 in order to be distributed to Owners or holders) the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it may
deem equitable and practicable for the purpose of effecting such distribution,
including, but not limited to, the public or private sale of the securities or
property thus received, or any part thereof, and the net proceeds of any such
sale (net of the fees and expenses of the Depositary as provided in Section
5.09) shall be distributed by the Depositary to the Owners entitled thereto, all
in the manner and subject to the conditions described in Section
4.01. The Depositary may withhold any distribution of securities
under this Section 4.02 if it has not received satisfactory assurances from the
Company that the distribution does not require registration under the Securities
Act of 1933. The Depositary may sell, by public or private sale, an
amount of securities or other property it would otherwise distribute under this
Section 4.02 that is sufficient to pay its fees and expenses in respect of that
distribution.
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SECTION
4.03 Distributions in
Shares.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may, and shall, subject to the following
sentence, if the Company so requests in writing, deliver to the Owners entitled
thereto, in proportion to the number of American Depositary Shares representing
such Deposited Securities held by them respectively, an aggregate number of
American Depositary Shares representing the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and issuance of American
Depositary Shares and after deduction or upon withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees and
expenses of the Depositary as provided in Section 5.09 (and the Depositary may
sell, by public or private sale, an amount of the Shares received sufficient to
pay its fees and expenses in respect of that distribution). The
Depositary may withhold any such delivery of American Depositary Shares if it
has not received satisfactory assurances from the Company that such distribution
does not require registration under the Securities Act of 1933. In
lieu of delivering fractional American Depositary Shares in any such case, the
Depositary shall sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.01. If additional American
Depositary Shares are not so delivered, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby.
SECTION
4.04 Rights.
In the
event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights
of any other nature, the Depositary, after consultation with the Company to the
extent practicable, shall have discretion as to the procedure to be followed in
making such rights available to any Owners or in disposing of such rights on
behalf of any Owners and making the net proceeds available to such Owners or, if
by the terms of such rights offering or for any other reason, the Depositary may
not either make such rights available to any Owners or dispose of such rights
and make the net proceeds available to such Owners, then the Depositary shall
allow the rights to lapse. If at the time of the offering of any
rights the Depositary determines in its discretion that it is lawful and
feasible to make such rights available to all or certain Owners but not to other
Owners, the Depositary may distribute to any Owner to whom it determines the
distribution to be lawful and feasible, in proportion to the number of American
Depositary Shares held by such Owner, warrants or other instruments therefor in
such form as it deems appropriate.
In
circumstances in which rights would otherwise not be distributed, if an Owner
requests the distribution of warrants or other instruments in order to exercise
the rights allocable to the American Depositary Shares of such Owner hereunder,
the Depositary will make such rights available to such Owner upon written notice
from the Company to the Depositary that (a) the Company has elected in its sole
discretion to permit such rights to be exercised and (b) such Owner has executed
such documents as the Company has determined in its sole discretion are
reasonably required under applicable law.
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If the
Depositary has distributed warrants or other instruments for rights to all or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received upon
the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for
such Owner, the Depositary will cause the Shares so purchased to be deposited
pursuant to Section 2.02 of this Deposit Agreement, and shall, pursuant to
Section 2.03 of this Deposit Agreement, deliver American Depositary Shares
to such Owner. In the case of a distribution pursuant to the second
paragraph of this Section, such deposit shall be made, and depositary shares
shall be delivered, under depositary arrangements which provide for issuance of
depositary shares subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under applicable United States laws.
If the
Depositary, after consultation with the Company to the extent practicable,
determines in its discretion that it is not lawful and feasible to make such
rights available to all or certain Owners, it may sell the rights, warrants or
other instruments in proportion to the number of American Depositary Shares held
by the Owners to whom it has determined it may not lawfully or feasibly make
such rights available, and allocate the net proceeds of such sales (net of the
fees and expenses of the Depositary as provided in Section 5.09 and all taxes
and governmental charges payable in connection with such rights and subject to
the terms and conditions of this Deposit Agreement) for the account of such
Owners otherwise entitled to such rights, warrants or other instruments, upon an
averaged or other practical basis without regard to any distinctions among such
Owners because of exchange restrictions or the date of delivery of any American
Depositary Shares or otherwise.
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration under
the Securities Act of 1933 with respect to a distribution to all Owners or are
registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create any obligation on the part of the
Company to file a registration statement with respect to such rights or
underlying securities or to endeavor to have such a registration statement
declared effective. If an Owner requests the distribution of warrants
or other instruments, notwithstanding that there has been no such registration
under the Securities Act of 1933, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States for the Company upon which the Depositary may rely that such
distribution to such Owner is exempt from such registration.
The
Depositary shall not be responsible for any failure to determine that it may be
lawful or feasible to make such rights available to Owners in general or any
Owner in particular.
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SECTION
4.05 Conversion of Foreign
Currency.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted by sale or
in any other manner that it may determine such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any American Depositary Shares or
otherwise and shall be net of any expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.09.
If such
conversion or distribution can be effected only with the approval or license of
any government or agency thereof, the Depositary shall file such application for
approval or license, if any, as it may deem desirable.
If at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any
such conversion of foreign currency, in whole or in part, cannot be effected for
distribution to some of the Owners entitled thereto, the Depositary may in its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
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SECTION
4.06 Fixing of Record
Date.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which shall the same as or as near as practicable to
any corresponding record date established by the Company in respect of the
Shares or other Deposited Securities (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting or (iii) responsible for any fee
or charge assessed by the Depositary pursuant to this Deposit Agreement, or (b)
on or after which each American Depositary Share will represent the changed
number of Shares. Subject to the provisions of Sections 4.01 through
4.05 and to the other terms and conditions of this Deposit Agreement, the Owners
on such record date shall be entitled, as the case may be, to receive the amount
distributable by the Depositary with respect to such dividend or other
distribution or such rights or the net proceeds of sale thereof in proportion to
the number of American Depositary Shares held by them respectively and to give
voting instructions and to act in respect of any other such matter.
SECTION
4.07 Voting of Deposited
Securities.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners a notice, the form of which
notice shall be in the sole discretion of the Depositary, which shall contain
(a) such information as is contained in such notice of meeting received by
the Depositary from the Company, (b) a statement that the Owners as of the
close of business on a specified record date will be entitled, subject to any
applicable provision of BVI law and of the memorandum and articles of
association or similar documents of the Company, to instruct the Depositary as
to the exercise of the voting rights, if any, pertaining to the amount of Shares
or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that instructions may
be given or deemed given in accordance with the last sentence of this paragraph
if no instruction is received, to the Depositary to give a discretionary proxy
to a person designated by the Company. Upon the written request of an
Owner of American Depositary Shares on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor, in so far as practicable, to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by those American Depositary
Shares in accordance with the instructions set forth in such
request. The Depositary shall not itself exercise any voting
discretion over any Deposited Securities. If (i) the Company
instructed the Depositary to act under this Section 4.07 and complied with the
following paragraph and (ii) no instructions are received by the Depositary from
an Owner with respect to American Depositary Shares of that Owner on or before
the date established by the Depositary for such purpose, the Depositary shall
deem that Owner to have instructed the Depositary to give a discretionary proxy
to a person designated by the Company with respect to the amount of Deposited
Securities represented by those American Depositary Shares and the Depositary
shall give a discretionary proxy to a person designated by the Company to vote
that amount of Deposited Securities, except 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)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares..
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In order
to give Owners a reasonable opportunity to instruct the Depositary as to the
exercise of voting rights relating to Deposited Securities, if the Company will
request the Depositary to act under this Section 4.07, the Company shall give
the Depositary notice of any such meeting and details concerning the matters to
be voted upon not less than 45 days prior to the meeting date.
There can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in Section 4.07 of the Deposit Agreement sufficiently prior
to the instruction cutoff date to ensure that the Depositary will vote the
Shares or Deposited Securities in accordance with the instructions of any
Owner.
SECTION
4.08 Changes Affecting Deposited
Securities.
Upon any
change in nominal value, change in par value, split-up, 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, or upon the redemption or cancellation by the Company
of the Deposited Securities, any securities, cash or property which shall be
received by the Depositary or a Custodian in exchange for, in conversion of, in
lieu of or in respect of Deposited Securities, shall be treated as new Deposited
Securities under this Deposit Agreement, and American Depositary Shares shall
thenceforth represent, in addition to the existing Deposited Securities, the
right to receive the new Deposited Securities so received, unless additional
American Depositary Shares are delivered pursuant to the following
sentence. In any such case the Depositary may deliver additional
American Depositary Shares as in the case of a dividend in Shares, or call for
the surrender of outstanding Receipts to be exchanged for new Receipts
specifically describing such new Deposited Securities.
SECTION
4.09 Reports.
The
Depositary shall make available for inspection by Owners at its Corporate Trust
Office any reports and communications, including any proxy solicitation
material, received from the Company which are both (a) received by the
Depositary 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, upon written request by the
Company, send to the Owners copies of such reports when furnished by the Company
pursuant to Section 5.06. Any such reports and communications,
including any such proxy soliciting material, furnished to the Depositary by the
Company shall be furnished in English, to the extent such materials are required
to be translated into English pursuant to any regulations of the
Commission.
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SECTION
4.10 Lists of
Owners.
Promptly
upon request by the Company, the Depositary shall, at the expense of the
Company, furnish to it a list, as of a recent date, of the names, addresses and
holdings of American Depositary Shares by all persons in whose names American
Depositary Shares are registered on the books of the Depositary.
SECTION
4.11 Withholding.
In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE
5. THE DEPOSITARY,
THE CUSTODIANS AND THE COMPANY
SECTION
5.01 Maintenance of Office and
Transfer Books by the Depositary.
Until
termination of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain in the Borough of Manhattan, The City of New York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of American Depositary Shares in accordance with the
provisions of this Deposit Agreement.
The
Depositary shall keep books, at its Corporate Trust Office, for the registration
of American Depositary Shares and transfers of American Depositary Shares which
at all reasonable times shall be open for inspection by the Owners, provided
that such inspection shall not be for the purpose of communicating with Owners
in the interest of a business or object other than the business of the Company
or a matter related to this Deposit Agreement or the American Depositary
Shares.
The
Depositary may close the transfer books, at any time or from time to time, when
deemed expedient by it in connection with the performance of its duties
hereunder.
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If any
American Depositary Shares are listed on one or more stock exchanges in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registry of such American Depositary Shares in
accordance with any requirements of such exchange or exchanges.
The
Company shall have the right, at all reasonable times, to inspect transfer and
registration records of the Depositary, the Registrar and any co-transfer agents
or co-registrars and to require such parties to supply copies of such portions
of their records as the Company may reasonably request.
SECTION
5.02 Prevention or Delay in
Performance by the Depositary or the Company.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or Holder (i) if by
reason of any provision of any present or future law or regulation of the United
States, the BVI or any other country, or of any governmental or regulatory
authority or stock exchange, or by reason of any provision, present or future,
of the memorandum and articles of association or similar document of the
Company, or by reason of any provision of any securities issued or distributed
by the Company, or any offering or distribution thereof, or by reason of any act
of God or war or terrorism or other circumstances beyond its control, the
Depositary or the Company shall be prevented, delayed or forbidden from, or be
subject to any civil or criminal penalty on account of, doing or performing any
act or thing which by the terms of this Deposit Agreement or the Deposited
Securities it is provided shall be done or performed, (ii) by reason of any
non-performance or delay, caused as aforesaid, in the performance of any act or
thing which by the terms of this Deposit Agreement it is provided shall or may
be done or performed, (iii) by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement, (iv) for the
inability of any Owner or holder 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 Owners or holders, or (v) for any special, consequential or punitive damages
for any breach of the terms of this Deposit Agreement. Where, by the
terms of a distribution pursuant to Section 4.01, 4.02 or 4.03, or an
offering or distribution pursuant to Section 4.04, or for any other reason,
such distribution or offering may not be made available to Owners, and the
Depositary may not dispose of such distribution or offering on behalf of such
Owners and make the net proceeds available to such Owners, then the Depositary
shall not make such distribution or offering, and shall allow any rights, if
applicable, to lapse.
SECTION
5.03 Obligations of the
Depositary, the Custodian and the Company.
The
Company, its directors, officers, employees, agents and affiliates assume no
obligation nor shall any of them be subject to any liability under this Deposit
Agreement to any Owner or Holder, except that the Company agrees to perform its
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
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The
Depositary assumes no obligation nor shall it be subject to any liability under
this Deposit Agreement to any Owner or Holder (including, without limitation,
liability with respect to the validity or worth of the Deposited Securities),
except that the Depositary agrees to perform its obligations specifically set
forth in this Deposit Agreement without negligence or bad faith.
Neither
the Depositary nor the Company (nor any of its 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 American Depositary Shares on behalf of any
Owner or Holder or any other person.
Neither
the Depositary nor the Company (nor any of its directors, officers, employees,
agents or affiliates) shall be liable for any action or nonaction by it in
reliance upon the advice of or information from legal counsel, accountants, any
person presenting Shares for deposit, any Owner or any other person believed by
it in good faith to be competent to give such advice or
information.
The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the removal or
resignation of the Depositary, provided that in connection with the issue out of
which such potential liability arises the Depositary performed its obligations
without negligence or bad faith while it acted as Depositary.
The
Depositary shall not be liable for the acts or omissions of any securities
depository, clearing agency or settlement system in connection with or arising
out of book-entry settlement of Deposited Securities or otherwise.
The
Depositary shall not be responsible for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any such vote is cast or the effect of any such vote, provided that any such
action or nonaction is in good faith.
No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of this Deposit Agreement.
SECTION
5.04 Resignation and Removal of
the Depositary.
The
Depositary may at any time resign as Depositary hereunder by written notice of
its election so to do delivered to the Company, such resignation to take effect
upon the appointment of a successor depositary and its acceptance of such
appointment as hereinafter provided.
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The
Depositary may at any time be removed by the Company by 120 days prior written
notice of such removal, to become effective upon the later of (i) the 120th day
after delivery of the notice to the Depositary and (ii) the appointment 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 its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
The City of New York. Every successor depositary shall execute and
deliver to its predecessor and to the Company an instrument in writing accepting
its appointment hereunder, and thereupon such successor depositary, without any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Company shall
execute and deliver an instrument transferring to such successor all rights and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such successor and
shall deliver to such successor a list of the Owners of all outstanding American
Depositary Shares. Any such successor depositary shall promptly mail
notice of its appointment to the Owners.
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
5.05 The
Custodians.
The
Custodian shall be subject at all times and in all respects to the directions of
the Depositary and shall be responsible solely to it. Any Custodian
may resign and be discharged from its duties hereunder by notice of such
resignation delivered to the Depositary at least 30 days prior to the date on
which such resignation is to become effective. If upon such
resignation there shall be no Custodian acting hereunder, the Depositary shall,
promptly after receiving such notice, appoint a substitute custodian or
custodians, each of which shall thereafter be a Custodian
hereunder. The Depositary in its discretion may appoint a substitute
or additional custodian or custodians, each of which shall thereafter be one of
the Custodians hereunder. Upon demand of the Depositary any Custodian
shall deliver such of the Deposited Securities held by it as are requested of it
to any other Custodian or such substitute or additional custodian or
custodians. Each such substitute or additional custodian shall
deliver to the Depositary, forthwith upon its appointment, an acceptance of such
appointment satisfactory in form and substance to the
Depositary.
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Upon the
appointment of any successor depositary hereunder, each Custodian then acting
hereunder shall forthwith become, without any further act or writing, the agent
hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder; but
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 as agent hereunder of such successor depositary.
SECTION
5.06 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 in
respect of any cash or other distributions or the offering of any rights, the
Company agrees to transmit to the Depositary and the Custodian a copy of the
notice thereof in the form given or to be given to holders of Shares or other
Deposited Securities.
The
Company will arrange for the translation into English, if not already in
English, to the extent required pursuant to any regulations of the Commission,
and the prompt transmittal by the Company to the Depositary and the Custodian of
such notices and any other reports and communications which are made generally
available by the Company to holders of its Shares. If requested in
writing by the Company, the Depositary will arrange for the mailing, at the
Company’s expense, of copies of such notices, reports and communications to all
Owners. The Company will timely provide the Depositary with the
quantity of such notices, reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings.
SECTION
5.07 Distribution of Additional
Shares, Rights, etc.
If the
Company or any affiliate of the Company determines to make any issuance or
distribution of (1) additional Shares, (2) rights to subscribe for
Shares, (3) securities convertible into Shares, or (4) rights to
subscribe for such securities (each a “Distribution”), the Company shall notify
the Depositary in writing in English as promptly as practicable and in any event
before the Distribution starts and, if requested in writing by the Depositary,
the Company shall promptly furnish to the Depositary a written opinion from U.S.
counsel for the Company that is reasonably satisfactory to the Depositary,
stating whether or not the Distribution requires, or, if made in the United
States, would require, registration under the Securities Act of
1933. If, in the opinion of that counsel, the Distribution requires,
or, if made in the United States, would require, registration under the
Securities Act of 1933, that counsel shall furnish to the Depositary a written
opinion as to whether or not there is a registration statement under the
Securities Act of 1933 in effect that will cover that
Distribution.
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The
Company agrees with the Depositary that, except as otherwise agreed between the
Company and the Depositary, neither the Company nor any company controlled by,
controlling or under common control with the Company will at any time
deposit any Shares, either originally issued or previously issued and reacquired
by the Company or any such affiliate, unless a Registration Statement is in
effect as to such Shares under the Securities Act of 1933 or the Company
delivers to the Depositary an opinion of United States counsel, satisfactory to
the Depositary, to the effect that, upon deposit, those Shares will be eligible
for public resale in the United States without further registration under the
Securities Act of 1933.
SECTION
5.08 Indemnification.
The
Company agrees to indemnify the Depositary, its directors, employees, agents and
affiliates and any Custodian against, and hold each of them harmless from, any
liability or expense (including, but not limited to any fees and expenses
incurred in seeking, enforcing or collecting such indemnity and the reasonable
fees and expenses of counsel) which may arise out of or in connection with (a)
any registration with the Commission of American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or (b) acts
performed or omitted, pursuant to the provisions of or in connection with this
Deposit Agreement and of the Receipts, as the same may be amended, modified or
supplemented from time to time, (i) by either the Depositary or a Custodian or
their respective directors, employees, agents and affiliates, except for any
liability or expense arising out of the negligence or bad faith of either of
them, or (ii) by the Company or any of its directors, employees, agents and
affiliates.
The
indemnities contained in the preceding paragraph shall not extend to any
liability or expense which arises solely and exclusively out of a Pre-Release
(as defined in Section 2.09) of American Depositary Shares in accordance with
Section 2.09 and which would not otherwise have arisen had those American
Depositary Shares not been the subject of a Pre-Release pursuant to Section
2.09; provided,
however, that
the indemnities provided in the preceding paragraph shall apply to any such
liability or expense (i) to the extent that such liability or expense would have
arisen had those American Depositary Shares not be the subject of a Pre-Release,
or (ii) which may arise out of any misstatement or alleged misstatement or
omission or alleged omission in any registration statement, proxy statement,
prospectus (or placement memorandum), or preliminary prospectus (or preliminary
placement memorandum) relating to the offer or sale of American Depositary
Shares, except to the extent any such liability or expense arises out of (x)
information relating to the Depositary or any Custodian (other than the
Company), as applicable, furnished in writing and not materially changed or
altered by the Company expressly for use in any of the foregoing documents, or,
(y) if such information is provided, the failure to state a material fact
necessary to make the information provided not misleading.
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The
Depositary agrees to indemnify the Company, its directors, employees, agents and
affiliates and hold them harmless from any liability or expense which may arise
out of acts performed or omitted by the Depositary or its Custodian or their
respective directors, employees, agents and affiliates due to their negligence
or bad faith.
If an
action or proceeding (including, but not limited to, any governmental
investigation, claim or dispute) in respect of which indemnity may be sought by
either party is brought or asserted against the other party, the party seeking
indemnification (the "Indemnitee") shall
promptly notify the other party (the “Indemnitor”) in
writing of such proceeding giving reasonable details thereof. The
Indemnitor shall be entitled to participate in such proceeding and, to the
extent no conflict of interest exists in the conduct of the defense, to assume
the defense thereof with counsel reasonably satisfactory to the
Indemnitee. After notice from the Indemnitor to the Indemnitee of its
election to assume the defense, and provided no conflict of interest exists, the
Indemnitor shall not be liable to the Indemnitee for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by the
Indemnitee, in connection with the defense other than reasonable costs of
investigation. No compromise or settlement of such action or
proceeding may be effected by either party without the other party’s consent
(which shall not be unreasonably withheld) unless (i) there is no finding or
admission of any violation of law and no effect on any other claims that may be
made against such other party and (ii) the sole relief provided is monetary
damages that are paid in full by the party seeking such compromise or
settlement.
SECTION
5.09 Charges of
Depositary.
The
Company agrees to pay the fees and out-of-pocket expenses of the Depositary and
those of any Registrar only in accordance with agreements in writing entered
into between the Depositary and the Company from time to time.
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The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering American Depositary Shares or to whom
American Depositary Shares are issued (including, without limitation, issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock regarding the American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant to Section
4.03), or by Owners, as applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the Share register of the
Company or Foreign Registrar and applicable to transfers of Shares to or from
the name of the Depositary or its nominee or the Custodian or its nominee on the
making of deposits or withdrawals hereunder, (3) such cable, telex and facsimile
transmission expenses as are expressly provided in this Deposit Agreement, (4)
such expenses as are incurred by the Depositary in the conversion of foreign
currency pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the delivery of American Depositary
Shares pursuant to Section 2.03, 4.03 or 4.04 and the surrender of American
Depositary Shares pursuant to Section 2.05 or 6.02, (6) a fee of $.05 or less
per American Depositary Share (or portion thereof) for any cash distribution
made pursuant to this Deposit Agreement, including, but not limited to Sections
4.01 through 4.04 hereof, (7) a fee for the distribution of securities pursuant
to Section 4.02, such fee being in an amount equal to the fee for the execution
and delivery of American Depositary Shares referred to above which would have
been charged as a result of the deposit of such securities (for purposes of this
clause 7 treating all such securities as if they were Shares) but which
securities are instead distributed by the Depositary to Owners, (8) in addition
to any fee charged under clause 6, a fee of $.05 or less per American Depositary
Share (or portion thereof) per annum for depositary services, which will be
payable as provided in clause 9 below, and (9) any other charges payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Owners as of
the date or dates set by the Depositary in accordance with Section 4.06 and
shall be payable at the sole discretion of the Depositary by billing such Owners
for such charge or by deducting such charge from one or more cash dividends or
other cash distributions).
The
Depositary, subject to Section 2.09 hereof, may own and deal in any class of
securities of the Company and its affiliates and in American Depositary
Shares.
SECTION
5.10 Retention of Depositary
Documents.
The
Depositary is authorized to destroy those documents, records, bills and other
data compiled during the term of this Deposit Agreement at the times permitted
by the laws or regulations governing the Depositary unless the Company requests
that such papers be retained for a longer period or turned over to the Company
or to a successor depositary.
SECTION
5.11 Exclusivity.
The
Company agrees not to appoint any other depositary for issuance of American or
global depositary shares or receipts so long as The Bank of New York Mellon is
acting as Depositary hereunder.
SECTION
5.12 List of Restricted
Securities Owners.
From time
to time, the Company shall provide to the Depositary a list setting forth, to
the actual knowledge of the Company, those persons or entities who beneficially
own Restricted Securities and the Company shall update that list on a regular
basis. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on such a list or update but shall
not be liable for any action or omission made in reliance
thereon.
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ARTICLE
6. AMENDMENT AND
TERMINATION
SECTION
6.01 Amendment.
The form
of the Receipts and any provisions of this Deposit Agreement may at any time and
from time to time be amended by agreement between the Company and the Depositary
without the consent of Owners or holders in any respect which they may deem
necessary or desirable. Any amendment which shall impose or increase
any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
American Depositary Shares until the expiration of thirty days after notice of
such amendment shall have been given to the Owners of outstanding American
Depositary Shares. Every Owner and holder, at the time any amendment so becomes
effective, shall be deemed, by continuing to hold American Depositary Shares or
any interest therein, to consent and agree to such amendment and to be bound by
the Deposit Agreement as amended thereby. In no event shall any amendment impair
the right of the Owner to surrender American Depositary Shares and receive
therefor the Deposited Securities represented thereby, except in order to comply
with mandatory provisions of applicable law.
SECTION
6.02 Termination.
The
Company may at any time terminate this Deposit Agreement by instructing the
Depositary to mail a notice of termination to the Owners of all American
Depositary Shares then outstanding at least 30 days prior to the termination
date included in such notice. The Depositary may likewise terminate
this Deposit Agreement if at any time 60 days shall have expired after the
Depositary delivered to the Company a written resignation notice and if a
successor depositary shall not have been appointed and accepted its appointment
as provided in Section 5.04; in such case the Depositary shall mail a notice of
termination to the Owners of all American Depositary Shares then outstanding at
least 30 days prior to the termination date. On and after the date of
termination, the Owner of American Depositary Shares will, upon (a) surrender of
such American Depositary Shares, (b) payment of the fee of the Depositary for
the surrender of American Depositary Shares referred to in Section 2.05, and (c)
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 those American Depositary Shares. If any American
Depositary Shares shall remain outstanding after the date of termination, the
Depositary thereafter shall discontinue the registration of transfers of
American Depositary Shares, shall suspend the distribution of dividends to the
Owners thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in this Deposit Agreement, and
shall continue to deliver Deposited Securities, together with any dividends or
other distributions received with respect thereto and the net proceeds of the
sale of any rights or other property, upon surrender of American Depositary
Shares (after deducting, in each case, the fee of the Depositary for the
surrender of American Depositary Shares, any expenses for the account of the
Owner of such American Depositary Shares in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges).
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At any
time after the expiration of four months from the date of termination, the
Depositary may sell the Deposited Securities then held under this Deposit
Agreement and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro rata benefit of the Owners of American
Depositary Shares that have not theretofore been surrendered, such Owners
thereupon becoming general creditors of the Depositary with respect to such net
proceeds. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement, except to account for such
net proceeds and other cash (after deducting, in each case, the fee of the
Depositary for the surrender of American Depositary Shares, any expenses for the
account of the Owner of such American Depositary Shares in accordance with the
terms and conditions of this Deposit Agreement, and any applicable taxes or
governmental charges. 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 5.08 and
5.09.
ARTICLE
7. MISCELLANEOUS
SECTION
7.01 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 shall constitute one
and the same instrument. Copies of this Deposit Agreement shall be
filed with the Depositary and the Custodians and shall be open to inspection by
any Owner or Holder during business hours.
SECTION
7.02 No Third Party
Beneficiaries.
This
Deposit Agreement is for the exclusive benefit of the parties hereto and shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person.
SECTION
7.03 Severability.
In case
any one or more of the provisions contained in this Deposit Agreement or in the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
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SECTION
7.04 Owners and Holders as
Parties; Binding Effect.
The
Owners and Holders from time to time shall be parties to this Deposit Agreement
and shall be bound by all of the terms and conditions hereof and of the Receipts
by acceptance of American Depositary Shares or any interest
therein.
SECTION
7.05 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 or cable, telex or facsimile
transmission confirmed by letter, addressed to Wirelessinfo Solution Holding
Ltd, 3rd Floor,
Borough A, Block A, No. 181 South Taibai Road, Xi’an, Shaanxi Province, People’s
Republic of China, Attention: _____________ or any other place to which the
Company may have transferred its principal office with notice to the
Depositary.
Any and
all notices to be given to the Depositary shall be deemed to have been duly
given if in English and personally delivered or sent by first class mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York Mellon, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: American Depositary Receipt Administration, or any other
place to which the Depositary may have transferred its Corporate Trust Office
with notice to the Company.
Any and
all notices to be given to any Owner shall be deemed to have been duly given if
personally delivered or sent by first class mail or cable, telex or facsimile
transmission confirmed by letter, addressed to such Owner at the address of such
Owner as it appears on the transfer books for American Depositary Shares of the
Depositary, or, if such Owner shall have filed with the Depositary a written
request that notices intended for such Owner be mailed to some other address, at
the address designated in such request.
Delivery
of a notice sent by mail or cable, telex or facsimile transmission shall be
deemed to be effected 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. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
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SECTION
7.06 Arbitration; Settlement of
Disputes.
(a) Any
controversy, claim or cause of action brought by any party hereto against the
Company arising out of or relating to the Shares or other Deposited Securities,
the American Depositary Shares, the Receipts or this Agreement, or the breach
hereof or thereof, shall be settled by arbitration in accordance with the
International Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof; provided, however, that in the
event of any third-party litigation to which the Depositary is a party and to
which the Company may properly be joined, the Company may be so joined in any
court in which such litigation is proceeding; and provided, further, that any
such controversy, claim or cause of action brought by a party hereto against the
Company relating to or based upon the provisions of the Federal securities laws
of the United States or the rules and regulations promulgated thereunder shall
be submitted to arbitration as provided in this Section 7.06 if, but only if, so
elected by the claimant.
The place
of the arbitration shall be ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America, and the language of the arbitration shall be
English.
The
number of arbitrators shall be three, each of whom shall be disinterested in the
dispute or controversy, shall have no connection with any party thereto, and
shall be an attorney experienced in international securities
transactions. Each party shall appoint one arbitrator and the two
arbitrators shall select a third arbitrator who shall serve as chairperson of
the tribunal. If a dispute, controversy or cause of action shall
involve more than two parties, the parties shall attempt to align themselves in
two sides (i.e., claimant(s) and respondent(s)), each of which shall appoint one
arbitrator as if there were only two parties to such dispute, controversy or
cause of action. If such alignment and appointment shall not have
occurred within thirty (30) calendar days after the initiating party serves the
arbitration demand, the American Arbitration Association shall appoint the three
arbitrators, each of whom shall have the qualifications described
above. The parties and the American Arbitration Association may
appoint from among the nationals of any country, whether or not a party is a
national of that country.
The
arbitral tribunal shall have no authority to award any consequential, special or
punitive damages or other damages not measured by the prevailing party’s actual
damages and may not, in any event, make any ruling, finding or award that does
not conform to the terms and conditions of this Deposit Agreement.
(b) Any
controversy, claim or cause of action arising out of or relating to the Shares
or other Deposited Securities, the American Depositary Shares, the Receipts or
this Deposit Agreement not subject to arbitration under this Section 7.06 shall
be litigated in the Federal and state courts in the Borough of Manhattan, The
City of New York and the Company hereby submits to the personal jurisdiction of
the court in which such action or proceeding is brought.
- 31
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SECTION
7.07 Submission to Jurisdiction;
Appointment of Agent for Service of Process; Jury Trial
Waiver.
The
Company hereby (i) irrevocably designates and appoints Corporation Service
Company, 1133 Avenue of the Americas, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in
the State of New York, as the Company's authorized agent upon which process may
be served in any suit or proceeding (including any arbitration proceeding)
arising out of or relating to the Shares or Deposited Securities, the American
Depositary Shares, the Receipts or this Deposit Agreement, (ii) consents and
submits to the jurisdiction of any state or federal court in the State of New
York in which any such suit or proceeding may be instituted, and (iii) agrees
that service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. The Company agrees to deliver, upon the execution and
delivery of this Deposit Agreement, a written acceptance by such agent of its
appointment as such agent. The Company further agrees to take any and
all action, including the filing of any and all such documents and instruments,
as may be necessary to continue such designation and appointment in full force
and effect for so long as any American Depositary Shares or Receipts remain
outstanding or this Deposit Agreement remains in force. In the event
the Company fails to continue such designation and appointment in full force and
effect, the Company hereby waives personal service of process upon it and
consents that any such service of process may be made by certified or registered
mail, return receipt requested, directed to the Company at its address last
specified for notices hereunder, and service so made shall be deemed completed
five (5) days after the same shall have been so mailed.
EACH
PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER
AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE
AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THIS DEPOSIT AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR
THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY
OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER
THEORY).
SECTION
7.08 Waiver of
Immunities.
To the
extent that the Company or any of its properties, assets or revenues may have or
may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof, from
setoff or counterclaim, from the jurisdiction of any court, from service of
process, from attachment upon or prior to judgment, from attachment in aid of
execution or judgment, or from execution of judgment, or other legal process or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced, with
respect to its obligations, liabilities or any other matter under or arising out
of or in connection with the Shares or Deposited Securities, the American
Depositary Shares, the Receipts or this Agreement, the Company, to the fullest
extent permitted by law, hereby irrevocably and unconditionally waives, and
agrees not to plead or claim, any such immunity and consents to such relief and
enforcement.
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SECTION
7.09 Governing
Law.
This
Deposit Agreement and the Receipts shall be interpreted and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by the laws
of the State of New York, except with respect to its authorization and execution
by the Company, which shall be governed by the laws of the BVI.
- 33
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IN
WITNESS WHEREOF, KINGTONE WIRELESSINFO SOLUTION HOLDING LTD and THE BANK OF NEW
YORK MELLON have duly executed this Deposit Agreement as of the day and year
first set forth above and all Owners and Holders shall become parties hereto
upon acceptance by them of American Depositary Shares or any interest
therein.
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By:
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Name:
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Title:
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THE
BANK OF NEW YORK MELLON,
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as
Depositary
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By:
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Name:
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Title:
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- 34
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EXHIBIT
A
AMERICAN
DEPOSITARY SHARES
(Each
American Depositary Share represents
_____
deposited Shares)
THE BANK
OF NEW YORK MELLON
AMERICAN
DEPOSITARY RECEIPT
FOR
ORDINARY SHARES
OF
(INCORPORATED
UNDER THE LAWS OF THE BRITISH VIRGIN ISLANDS)
The Bank
of New York Mellon, as depositary (hereinafter called the “Depositary”), hereby
certifies that___________ ____________________________________________, or
registered assigns IS THE OWNER OF _____________________________
AMERICAN
DEPOSITARY SHARES
representing
deposited ordinary shares (herein called “Shares”) of Kingtone
Wirelessinfo Solution Holding Ltd, incorporated under the laws of the British
Virgin Islands (herein called the “Company”). At the date hereof,
each American Depositary Share represents _____ Shares deposited or subject to
deposit under the Deposit Agreement (as such term is hereinafter defined) at the
principal Hong Kong office of The Hongkong and Shanghai Banking Corporation
Limited (herein called the “Custodian”). The Depositary's Corporate
Trust Office is located at a different address than its principal executive
office. Its Corporate Trust Office is located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, and its principal executive office is located at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇.
THE
DEPOSITARY'S CORPORATE TRUST OFFICE ADDRESS IS
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
1. THE DEPOSIT
AGREEMENT.
This
American Depositary Receipt is one of an issue (herein called "Receipts"), all
issued and to be issued upon the terms and conditions set forth in the deposit
agreement, dated as of __________, 2010 (herein called the "Deposit Agreement"),
by and among the Company, the Depositary, and all Owners and Holders from time
to time of American Depositary Shares issued thereunder, each of whom by
accepting American Depositary Shares agrees to become a party thereto and become
bound by all the terms and conditions thereof. The Deposit Agreement
sets forth the rights of Owners and holders 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 Depositary's Corporate Trust Office in New York
City and at the office of the Custodian.
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and are qualified by and subject to the
detailed provisions of the Deposit Agreement, to which reference is hereby
made. Capitalized terms defined in the Deposit Agreement and not
defined herein shall have the meanings set forth in the Deposit
Agreement.
2. SURRENDER OF AMERICAN
DEPOSITARY SHARES AND WITHDRAWAL OF DEPOSITED SECURITIES.
Upon
surrender at the Corporate Trust Office of the Depositary of American Depositary
Shares, and upon payment of the fee of the Depositary provided in this Receipt,
and subject to the terms and conditions of the Deposit Agreement, the Owner of
those American Depositary Shares is entitled to delivery, to him or as
instructed, of the amount of Deposited Securities at the time represented by
those American Depositary Shares. Such delivery will be made at the
option of the Owner hereof, either at the office of the Custodian or at the
Corporate Trust Office of the Depositary, provided that the forwarding of
certificates for Shares or other Deposited Securities for such delivery at the
Corporate Trust Office of the Depositary shall be at the risk and expense of the
Owner hereof.
- 1
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3. TRANSFERS, SPLIT-UPS, AND
COMBINATIONS OF RECEIPTS.
Transfers
of American Depositary Shares may be registered on the books of the Depositary
by the Owner in person or by a duly authorized attorney, upon surrender of those
American Depositary Shares properly endorsed for transfer or accompanied by
proper instruments of transfer, in the case of a Receipt, or pursuant to a
proper instruction (including, for the avoidance of doubt, instructions through
DRS and Profile as provided in Section 2.10 of the Deposit Agreement), in the
case of uncertificated American Depositary Shares, and funds sufficient to pay
any applicable transfer taxes and the expenses of the Depositary and upon
compliance with such regulations, if any, as the Depositary may establish for
such purpose. This Receipt may be split into other such Receipts, or may be
combined with other such Receipts into one Receipt, evidencing the same
aggregate number of American Depositary Shares as the Receipt or Receipts
surrendered. The Depositary, upon surrender of certificated American Depositary
Shares for the purpose of exchanging for uncertificated American Depositary
Shares, shall cancel those certificated American Depositary Shares and send the
Owner a statement confirming that the Owner is the Owner of uncertificated
American Depositary Shares. The Depositary, upon receipt of a proper instruction
(including, for the avoidance of doubt, instructions through DRS and Profile as
provided in Section 2.10 of the Deposit Agreement) from the Owner of
uncertificated American Depositary Shares for the purpose of exchanging for
certificated American Depositary Shares, shall cancel those uncertificated
American Depositary Shares and deliver to the Owner the same number of
certificated American Depositary Shares. As a condition precedent to
the delivery, registration of transfer, or surrender of any American Depositary
Shares or split-up or combination of any Receipt or withdrawal of any Deposited
Securities, the Depositary, the Custodian, or Registrar may require payment from
the depositor of the Shares or the presenter of the Receipt or instruction for
registration of transfer or surrender of American Depositary Shares not
evidenced by a Receipt of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees as provided in the
Deposit Agreement, may require the production of proof satisfactory to it as to
the identity and genuineness of any signature and may also require compliance
with any regulations the Depositary may establish consistent with the provisions
of the Deposit Agreement.
The
delivery of American Depositary Shares against deposit of Shares generally or
against deposit of particular Shares may be suspended, or the transfer of
American Depositary Shares in particular instances may be refused, or the
registration of transfer of outstanding American Depositary Shares generally may
be suspended, during any period when the transfer books of the Depositary are
closed, or if any such action is deemed necessary or advisable by the Depositary
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission, or under any
provision of the Deposit Agreement, or for any other reason, subject to the
provisions of the following sentence. Notwithstanding anything to the contrary
in the Deposit Agreement or this Receipt, the surrender of outstanding American
Depositary Shares and withdrawal of Deposited Securities may not be suspended
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the Foreign Registrar, if applicable, 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, and
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the American Depositary Shares or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall
not knowingly accept for deposit under the Deposit Agreement any Shares which
would be required to be registered under the provisions of the Securities Act of
1933, unless a registration statement is in effect as to such Shares for such
offer and sale.
- 2
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4. LIABILITY OF OWNER FOR
TAXES.
If any
tax or other governmental charge shall become payable with respect to any
American Depositary Shares or any Deposited Securities represented by any
American Depositary Shares, such tax or other governmental charge shall be
payable by the Owner to the Depositary. The Depositary may refuse to
register any transfer of those American Depositary Shares or any withdrawal of
Deposited Securities represented by those American Depositary Shares until such
payment is made, and may withhold any dividends or other distributions, or may
sell for the account of the Owner any part or all of the Deposited Securities
represented by those American Depositary Shares, and may apply such dividends or
other distributions or the proceeds of any such sale in payment of such tax or
other governmental charge and the Owner shall remain liable for any
deficiency.
5. WARRANTIES ON DEPOSIT OF
SHARES.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant, that such Shares and each certificate therefor, if
applicable, are validly issued, fully paid, nonassessable and free of any
preemptive rights of the holders of outstanding Shares and that the person
making such deposit is duly authorized so to do. Every such person
shall also be deemed to represent that the deposit of such Shares and the sale
of American Depositary Shares representing such Shares by that person are not
restricted under the Securities Act of 1933. Such representations and
warranties shall survive the deposit of Shares and delivery of American
Depositary Shares.
6. FILING PROOFS, CERTIFICATES,
AND OTHER INFORMATION.
Any
person presenting Shares for deposit or any Owner or holder may be required from
time to time to file with the Depositary or the Custodian such proof of
citizenship or residence, exchange control approval, or such information
relating to the registration on the books of the Company or the Foreign
Registrar, if applicable, to execute such certificates and to make such
representations and warranties, as the Depositary may deem necessary or
proper. The Depositary may withhold the delivery or registration of
transfer of any American Depositary Shares or the distribution of any dividend
or sale or distribution of rights or of the proceeds thereof or the delivery of
any Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties
made. No Share shall be accepted for deposit unless accompanied by
evidence satisfactory to the Depositary that any necessary approval has been
granted by any governmental body in any relevant jurisdiction that is then
performing the function of the regulation of currency exchange.
- 3
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7. CHARGES OF
DEPOSITARY.
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering American Depositary Shares or to whom
American Depositary Shares are issued (including, without limitation, issuance
pursuant to a stock dividend or stock split declared by the Company or an
exchange of stock regarding the American Depositary Shares or Deposited
Securities or a delivery of American Depositary Shares pursuant to Section 4.03
of the Deposit Agreement), or by Owners, as applicable: (1) taxes and
other governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the Share
register of the Company or Foreign Registrar and applicable to transfers of
Shares to or from the name of the Depositary or its nominee or the Custodian or
its nominee on the making of deposits or withdrawals under the terms of the
Deposit Agreement, (3) such cable, telex and facsimile transmission expenses as
are expressly provided in the Deposit Agreement, (4) such expenses as are
incurred by the Depositary in the conversion of foreign currency pursuant to
Section 4.05 of the Deposit Agreement, (5) a fee of $5.00 or less per 100
American Depositary Shares (or portion thereof) for the delivery of American
Depositary Shares pursuant to Section 2.03, 4.03 or 4.04 of the Deposit
Agreement and the surrender of American Depositary Shares pursuant to Section
2.05 or 6.02 of the Deposit Agreement, (6) a fee of $.05 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant to
the Deposit Agreement, including, but not limited to Sections 4.01 through 4.04
of the Deposit Agreement, (7) a fee for the distribution of securities pursuant
to Section 4.02 of the Deposit Agreement, such fee being in an amount equal to
the fee for the execution and delivery of American Depositary Shares referred to
above which would have been charged as a result of the deposit of such
securities (for purposes of this clause 7 treating all such securities as if
they were Shares) but which securities are instead distributed by the Depositary
to Owners, (8) in addition to any fee charged under clause 6, a fee of $.05 or
less per American Depositary Share (or portion thereof) per annum for depositary
services, which will be payable as provided in clause 9 below, (9) any other
charges payable by the Depositary, any of the Depositary's agents, including the
Custodian, or the agents of the Depositary's agents in connection with the
servicing of Shares or other Deposited Securities (which charge shall be
assessed against Owners as of the date or dates set by the Depositary in
accordance with Section 4.06 of the Deposit Agreement and shall be payable at
the sole discretion of the Depositary by billing such Owners for such charge or
by deducting such charge from one or more cash dividends or other cash
distributions).
The
Depositary, subject to Article 8 hereof, may own and deal in any class of
securities of the Company and its affiliates and in American Depositary
Shares.
- 4
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8. PRE-RELEASE OF
RECEIPTS.
Notwithstanding
Section 2.03 of the Deposit Agreement, the Depositary may deliver American
Depositary Shares prior to the receipt of Shares pursuant to Section 2.02 of the
Deposit Agreement (a “Pre-Release”). The Depositary may, pursuant to
Section 2.05 of the Deposit Agreement, deliver Shares upon the surrender of
American Depositary Shares that have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such American Depositary Shares have been
Pre-Released. The Depositary may receive American Depositary Shares
in lieu of Shares in satisfaction of a Pre-Release. Each Pre-Release
will be (a) preceded or accompanied by a written representation from the person
to whom American Depositary Shares or Shares are to be delivered, that such
person, or its customer, owns the Shares or American Depositary Shares to be
remitted, as the case may be, (b) at all times fully collateralized with cash 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 number of American Depositary Shares which are
outstanding at any time as a result of Pre-Release will not normally exceed
thirty percent (30%) of the Shares deposited under the Deposit Agreement;
provided, however, that the Depositary reserves the right to change or disregard
such limit from time to time as it deems appropriate.
The
Depositary may retain for its own account any compensation received by it in
connection with the foregoing.
9. TITLE TO
RECEIPTS.
It is a
condition of this Receipt and every successive Owner and holder of this Receipt
by accepting or holding the same consents and agrees that when properly endorsed
or accompanied by proper instruments of transfer, shall be transferable as
certificated registered securities under the laws of New York. American
Depositary Shares not evidenced by Receipts shall be transferable as
uncertificated registered securities under the laws of New York. The
Depositary, notwithstanding any notice to the contrary, may treat the Owner of
American Depositary Shares as the absolute owner thereof for the purpose of
determining the person entitled to distribution of dividends or other
distributions or to any notice provided for in the Deposit Agreement and for all
other purposes, and neither the Depositary nor the Company shall have any
obligation or be subject to any liability under the Deposit Agreement to any
Holder of American Depositary Shares unless that Holder is the Owner of those
American Depositary Shares.
10. VALIDITY OF
RECEIPT.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or be
valid or obligatory for any purpose, unless this Receipt shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary; provided, however that such
signature may be a facsimile if a Registrar for the Receipts shall have been
appointed and such Receipts are countersigned by the manual signature of a duly
authorized officer of the Registrar.
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11. REPORTS; INSPECTION OF
TRANSFER BOOKS.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and, accordingly, files reports with the
Commission. Those reports will be available for inspection and
copying through the Commission’s ▇▇▇▇▇ on the Internet at ▇▇▇.▇▇▇.▇▇▇ or at public reference
facilities maintained by the Commission located at ▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
The
Depositary will make available for inspection by Owners at its Corporate Trust
Office any reports, notices and other communications, including any proxy
soliciting material, received from the Company which are both (a) received
by the Depositary as the holder of the Deposited Securities and (b) made
generally available to the holders of such Deposited Securities by the
Company. The Depositary will also, upon written request by the
Company, send to Owners copies of such reports when furnished by the Company
pursuant to the Deposit Agreement. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission.
The
Depositary will keep books, at its Corporate Trust Office, for the registration
of American Depositary Shares and transfers of American Depositary Shares which
at all reasonable times shall be open for inspection by the Owners, provided
that such inspection shall not be for the purpose of communicating with Owners
in the interest of a business or object other than the business of the Company
or a matter related to the Deposit Agreement or the American Depositary
Shares.
12. DIVIDENDS AND
DISTRIBUTIONS.
Whenever
the Depositary receives any cash dividend or other cash distribution on any
Deposited Securities, the Depositary will, if at the time of receipt thereof any
amounts received in a foreign currency can in the judgment of the Depositary be
converted on a reasonable basis into United States dollars transferable to the
United States, and subject to the Deposit Agreement, convert such dividend or
distribution into dollars and will distribute the amount thus received (net of
the fees and expenses of the Depositary as provided in Article 7 hereof and
Section 5.09 of the Deposit Agreement) to the Owners entitled thereto;
provided, however, that in the
event that 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 or other governmental
charges, the amount distributed to the Owners of the American Depositary Shares
representing such Deposited Securities shall be reduced
accordingly.
- 6
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Subject
to the provisions of Section 4.11 and 5.09 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement, the
Depositary will cause the securities or property received by it to be
distributed to the Owners entitled thereto, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution; provided, however, that if in
the opinion of the Depositary, after consultation with the Company to the extent
practicable, such distribution cannot be made proportionately among the Owners
of Receipts entitled thereto, or if for any other reason the Depositary deems
such distribution not to be feasible, the Depositary may adopt such method as it
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided in
Article 7 hereof and Section 5.09 of the Deposit Agreement) will be
distributed by the Depositary to the Owners of Receipts entitled thereto all in
the manner and subject to the conditions described in Section 4.01 of the
Deposit Agreement. The Depositary may withhold any distribution of
securities under Section 4.02 of the Deposit Agreement if it has not received
satisfactory assurances from the Company that the distribution does not require
registration under the Securities Act of 1933. The Depositary may
sell, by public or private sale, an amount of securities or other property it
would otherwise distribute under this Article that is sufficient to pay its fees
and expenses in respect of that distribution.
If any
distribution consists of a dividend in, or free distribution of, Shares, the
Depositary may, and shall, subject to the following sentence, if the Company so
requests in writing, deliver to the Owners entitled thereto, an aggregate number
of American Depositary Shares representing the amount of Shares received as such
dividend or free distribution, subject to the terms and conditions of the
Deposit Agreement with respect to the deposit of Shares and issuance of American
Depositary Shares and after deduction or the withholding of any tax or other
governmental charge as provided in Section 4.11 of the Deposit Agreement and the
payment of the fees and expenses of the Depositary as provided in Article 7
hereof and Section 5.09 of the Deposit Agreement (and the Depositary may sell,
by public or private sale, an amount of Shares received sufficient to pay its
fees and expenses in respect of that distribution). The
Depositary may withhold any such delivery of American Depositary Shares if it
has not received satisfactory assurances from the Company that such
distribution does not require registration under the Securities Act of 1933. In
lieu of delivering fractional American Depositary Shares in any such case, the
Depositary will sell the amount of Shares represented by the aggregate of such
fractions and distribute the net proceeds, all in the manner and subject to the
conditions described in Section 4.01 of the Deposit Agreement. If
additional American Depositary Shares are not so delivered, each American
Depositary Share shall thenceforth also represent the additional Shares
distributed upon the Deposited Securities represented thereby.
- 7
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In the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax or
other governmental charge which the Depositary is obligated to withhold, the
Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay any such
taxes or charges, and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Owners of Receipts
entitled thereto.
13. RIGHTS.
In the
event that the Company shall offer or cause to be offered to the holders of any
Deposited Securities any rights to subscribe for additional Shares or any rights
of any other nature, the Depositary shall have discretion as to the procedure to
be followed in making such rights available to any Owners or in disposing of
such rights on behalf of any Owners and making the net proceeds available to
such Owners or, if by the terms of such rights offering or for any other reason,
the Depositary may not either make such rights available to any Owners or
dispose of such rights and make the net proceeds available to such Owners, then
the Depositary shall allow the rights to lapse. If at the time of the
offering of any rights the Depositary determines in its discretion that it is
lawful and feasible to make such rights available to all or certain Owners but
not to other Owners, the Depositary may distribute to any Owner to whom it
determines the distribution to be lawful and feasible, in proportion to the
number of American Depositary Shares held by such Owner, warrants or other
instruments therefor in such form as it deems appropriate.
In
circumstances in which rights would otherwise not be distributed, if an Owner
requests the distribution of warrants or other instruments in order to exercise
the rights allocable to the American Depositary Shares of such Owner under the
Deposit Agreement, the Depositary will make such rights available to such Owner
upon written notice from the Company to the Depositary that (a) the Company has
elected in its sole discretion to permit such rights to be exercised and (b)
such Owner has executed such documents as the Company has determined in its sole
discretion are reasonably required under applicable law.
If the
Depositary has distributed warrants or other instruments for rights to all or
certain Owners, then upon instruction from such an Owner pursuant to such
warrants or other instruments to the Depositary from such Owner to exercise such
rights, upon payment by such Owner to the Depositary for the account of such
Owner of an amount equal to the purchase price of the Shares to be received upon
the exercise of the rights, and upon payment of the fees and expenses of the
Depositary and any other charges as set forth in such warrants or other
instruments, the Depositary shall, on behalf of such Owner, exercise the rights
and purchase the Shares, and the Company shall cause the Shares so purchased to
be delivered to the Depositary on behalf of such Owner. As agent for
such Owner, the Depositary will cause the Shares so purchased to be deposited
pursuant to Section 2.02 of the Deposit Agreement, and shall, pursuant to
Section 2.03 of the Deposit Agreement, deliver American Depositary Shares to
such Owner. In the case of a distribution pursuant to the second
paragraph of this Article 13, such deposit shall be made, and depositary shares
shall be delivered, under depositary arrangements which provide for issuance of
depositary shares subject to the appropriate restrictions on sale, deposit,
cancellation, and transfer under applicable United States laws.
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If the
Depositary determines in its discretion that it is not lawful and feasible to
make such rights available to all or certain Owners, it may sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Owners to whom it has determined it may not lawfully or
feasibly make such rights available, and allocate the net proceeds of such sales
(net of the fees and expenses of the Depositary as provided in Section 5.09 of
the Deposit Agreement and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of the
Deposit Agreement) for the account of such Owners otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Owners because of exchange
restrictions or the date of delivery of any American Depositary Shares or
otherwise.
The
Depositary will not offer rights to Owners unless both the rights and the
securities to which such rights relate are either exempt from registration under
the Securities Act of 1933 with respect to a distribution to all Owners or are
registered under the provisions of such Act; provided, that nothing in the
Deposit Agreement shall create any obligation on the part of the Company to file
a registration statement with respect to such rights or underlying securities or
to endeavor to have such a registration statement declared
effective. If an Owner requests the distribution of warrants or other
instruments, notwithstanding that there has been no such registration under the
Securities Act of 1933, the Depositary shall not effect such distribution unless
it has received an opinion from recognized counsel in the United States for the
Company upon which the Depositary may rely that such distribution to such Owner
is exempt from such registration.
The
Depositary shall not be responsible for any failure to determine that it may be
lawful or feasible to make such rights available to Owners in general or any
Owner in particular.
14. CONVERSION OF FOREIGN
CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred to the
United States, the Depositary shall convert or cause to be converted by sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Owners entitled thereto or, if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Owners on account of
exchange restrictions, the date of delivery of any American Depositary Shares or
otherwise and shall be net of any expenses of conversion into Dollars incurred
by the Depositary as provided in Section 5.09 of the Deposit
Agreement.
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If such
conversion or distribution can be effected only with the approval or license of
any government or agency thereof, the Depositary shall file such application for
approval or license, if any, as it may deem desirable.
If at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable, or
if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary to, or in its discretion may hold such
foreign currency uninvested and without liability for interest thereon for the
respective accounts of, the Owners entitled to receive the same.
If any
such conversion of foreign currency, in whole or in part, cannot be effected for
distribution to some of the Owners entitled thereto, the Depositary may in its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Owners entitled thereto and may distribute the balance of the
foreign currency received by the Depositary to, or hold such balance uninvested
and without liability for interest thereon for the respective accounts of, the
Owners entitled thereto.
15. RECORD
DATES.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be issued
with respect to the Deposited Securities, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each American Depositary Share, or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, which shall the same as or as near as practicable to
any corresponding record date established by the Company in respect of the
Shares or other Deposited Securities (a) for the determination of the Owners who
shall be (i) entitled to receive such dividend, distribution or rights or the
net proceeds of the sale thereof, (ii) entitled to give instructions for the
exercise of voting rights at any such meeting or (iii) responsible for any fee
assessed by the Depositary pursuant to the Deposit Agreement, or (b) on or
after which each American Depositary Share will represent the changed number of
Shares, subject to the provisions of the Deposit Agreement.
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16. VOTING OF DEPOSITED
SECURITIES.
Upon
receipt of notice of any meeting of holders of Shares or other Deposited
Securities, if requested in writing by the Company, the Depositary shall, as
soon as practicable thereafter, mail to the Owners of Receipts a notice, the
form of which notice shall be in the sole discretion of the Depositary, which
shall contain (a) such information as is contained in such notice of
meeting received by the Depositary from the Company, (b) a statement that
the Owners as of the close of business on a specified record date will be
entitled, subject to any applicable provision of law and of the articles of
association or similar documents of the Company, to instruct the Depositary as
to the exercise of the voting rights, if any, pertaining to the amount of Shares
or other Deposited Securities represented by their respective American
Depositary Shares and (c) a statement as to the manner in which such
instructions may be given, including an express indication that instructions may
be given or deemed given in accordance with the last sentence of this paragraph
if no instruction is received, to the Depositary to give a discretionary proxy
to a person designated by the Company. Upon the written request of an
Owner of American Depositary Shares on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor, in so far as practicable, to vote or cause to be voted the amount of
Shares or other Deposited Securities represented by those American Depositary
Shares in accordance with the instructions set forth in such
request. The Depositary shall not itself exercise any voting
discretion over any Deposited Securities. If (i) the Company
instructed the Depositary to act under Section 4.07 of the Deposit Agreement and
complied with the following paragraph and (ii) no instructions are received by
the Depositary from an Owner with respect to American Depositary Shares of that
Owner on or before the date established by the Depositary for such purpose, the
Depositary shall deem that Owner to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to the
amount of Deposited Securities represented by those American Depositary Shares
and the Depositary shall give a discretionary proxy to a person designated by
the Company to vote that amount of Deposited Securities, except 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)
substantial opposition exists or (z) such matter materially and adversely
affects the rights of holders of Shares..
In order
to give Owners a reasonable opportunity to instruct the Depositary as to the
exercise of voting rights relating to Deposited Securities, if the Company will
request the Depositary to act under Section 4.07 of the Deposit Agreement, the
Company shall give the Depositary notice of any such meeting and details
concerning the matters to be voted upon not less than 45 days prior to the
meeting date.
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There can
be no assurance that Owners generally or any Owner in particular will receive
the notice described in this Section 4.07 sufficiently prior to the instruction
cutoff date to ensure that the Depositary will vote the Shares or Deposited
Securities in accordance with the instructions of any Owner.
17. CHANGES AFFECTING DEPOSITED
SECURITIES.
Upon any
change in nominal value, change in par value, split-up, 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, or upon the redemption or cancellation by the Company
of the Deposited Securities, any securities, cash or property which shall be
received by the Depositary or a Custodian in exchange for, in conversion of, in
lieu of or in respect of Deposited Securities shall be treated as new Deposited
Securities under the Deposit Agreement, and American Depositary Shares shall
thenceforth represent, in addition to the existing Deposited Securities, the
right to receive the new Deposited Securities so received, unless additional
Receipts are delivered pursuant to the following sentence. In any
such case the Depositary may deliver additional American Depositary Shares as in
the case of a dividend in Shares, or call for the surrender of outstanding
Receipts to be exchanged for new Receipts specifically describing such new
Deposited Securities.
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18. LIABILITY OF THE COMPANY AND
DEPOSITARY.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Owner or holder, (i) if by
reason of any provision of any present or future law or regulation of the United
States, the BVI or any other country, or of any governmental or regulatory
authority, or by reason of any provision, present or future, of the memorandum
and articles of association or any similar document of the Company, or by reason
of any provision of any securities issued or distributed by the Company, or any
offering or distribution thereof, or by reason of any act of God or war or
terrorism or other circumstances beyond its control, the Depositary or the
Company shall be prevented, delayed or forbidden from or be subject to any civil
or criminal penalty on account of doing or performing any act or thing which by
the terms of the Deposit Agreement or Deposited Securities it is provided shall
be done or performed, (ii) by reason of any non-performance or delay, caused as
aforesaid, in the performance of any act or thing which by the terms of the
Deposit Agreement it is provided shall or may be done or performed, (iii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement, (iv) for the inability of any Owner or holder 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 Owners or holders, or (v) for any special,
consequential or punitive damages for any breach of the terms of the Deposit
Agreement. Where, by the terms of a distribution pursuant to
Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, or for any
other reason, such distribution or offering may not be made available to Owners
of Receipts, and the Depositary may not dispose of such distribution or offering
on behalf of such Owners and make the net proceeds available to such Owners,
then the Depositary shall not make such distribution or offering, and shall
allow any rights, if applicable, to lapse. Neither the Company (nor
any of its directors, officers, employees, agents and affiliates) nor the
Depositary assumes any obligation or shall be subject to any liability under the
Deposit Agreement to Owners or holders, except that the Company and the
Depositary agree to perform their obligations specifically set forth in the
Deposit Agreement without negligence or bad faith. The Depositary
shall not be subject to any liability with respect to the validity or worth of
the Deposited Securities. Neither the Depositary nor the Company (nor
any of its directors, officers, employees, agents and 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 American
Depositary Shares, on behalf of any Owner or holder or other
person. Neither the Depositary nor the Company (nor any of its
directors, officers, employees, agents and affiliates) shall be liable for any
action or nonaction by it in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any Owner
or holder, or any other person believed by it in good faith to be competent to
give such advice or information. The Depositary shall not be liable
for any acts or omissions made by a successor depositary whether in connection
with a previous act or omission of the Depositary or in connection with a matter
arising wholly after the removal or resignation of the Depositary, provided that
in connection with the issue out of which such potential liability arises, the
Depositary performed its obligations without negligence or bad faith while it
acted as Depositary. The Depositary shall not be liable for the acts
or omissions of any securities depository, clearing agency or settlement system
in connection with or arising out of book-entry settlement of Deposited
Securities or otherwise. The Depositary shall not be responsible for
any failure to carry out any instructions to vote any of the Deposited
Securities or for the manner in which any such vote is cast or the effect of any
such vote, provided that any such action or nonaction is in good
faith.
No
disclaimer of liability under the Securities Act of 1933 is intended by any
provision of the Deposit Agreement.
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19.
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RESIGNATION AND
REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
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The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company
by 120 days prior written notice of such removal, to become effective upon the
later of (i) the 120th day after delivery of the notice to the Depositary and
(ii) the appointment of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. The Depositary in
its discretion may appoint a substitute or additional custodian or
custodians.
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20. AMENDMENT.
The form
of the Receipts and any provisions of the Deposit Agreement may at any time and
from time to time be amended by agreement between the Company and the Depositary
without the consent of Owners or holders in any respect which they may deem
necessary or desirable. Any amendment which shall impose or increase
any fees or charges (other than taxes and other governmental charges,
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or which shall otherwise prejudice any substantial
existing right of Owners, shall, however, not become effective as to outstanding
American Depositary Shares until the expiration of thirty days after notice of
such amendment shall have been given to the Owners of outstanding American
Depositary Shares. Every Owner and holder of American Depositary Shares, at the
time any amendment so becomes effective, shall be deemed, by continuing to hold
American Depositary Shares or any interest therein, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby. In no
event shall any amendment impair the right of the Owner to surrender American
Depositary Shares and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable
law.
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21. TERMINATION OF DEPOSIT
AGREEMENT.
The
Company may terminate the Deposit Agreement by instructing the Depositary to
mail notice of termination to the Owners of all American Depositary Shares then
outstanding at least 30 days prior to the termination date included in such
notice. The Depositary may likewise terminate the Deposit Agreement,
if at any time 60 days shall have expired after the Depositary delivered to the
Company a written resignation notice and if a successor depositary shall not
have been appointed and accepted its appointment as provided in the Deposit
Agreement; in such case the Depositary shall mail a notice of termination to the
Owners of all American Depositary Shares then outstanding at least 30 days prior
to the termination date. On and after the date of termination, the
Owner of American Depositary Shares will, upon (a) surrender of such American
Depositary Shares, (b) payment of the fee of the Depositary for the surrender of
American Depositary Shares referred to in Section 2.05, and (c) 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 those
American Depositary Shares. If any American Depositary Shares shall
remain outstanding after the date of termination, the Depositary thereafter
shall discontinue the registration of transfers of American Depositary Shares,
shall suspend the distribution of dividends to the Owners thereof, and shall not
give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights and
other property as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any rights or
other property, upon surrender of American Depositary Shares (after deducting,
in each case, the fee of the Depositary for the surrender of American Depositary
Shares, any expenses for the account of the Owner of such American Depositary
Shares in accordance with the terms and conditions of the Deposit Agreement, and
any applicable taxes or governmental charges). At any time after the expiration
of four months from the date of termination, the Depositary may sell the
Deposited Securities then held under the Deposit Agreement and may thereafter
hold uninvested the net proceeds of any such sale, together with any other cash
then held by it thereunder, unsegregated and without liability for interest, for
the pro rata benefit of the Owners of American Depositary Shares that have not
theretofore been surrendered, such Owners thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement,
except to account for such net proceeds and other cash (after deducting, in each
case, the fee of the Depositary for the surrender of American Depositary Shares,
any expenses for the account of the Owner of such American Depositary Shares in
accordance with the terms and conditions of the Deposit Agreement, and any
applicable taxes or governmental charges). Upon the termination of
the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the Depositary with
respect to indemnification, charges, and expenses.
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22.
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DTC DIRECT
REGISTRATION SYSTEM AND PROFILE MODIFICATION
SYSTEM.
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(a) Notwithstanding
the provisions of Section 2.04 of the Deposit Agreement, the parties acknowledge
that the Direct Registration System (“DRS”) and Profile Modification System
(“Profile”) shall apply to uncertificated American Depositary Shares upon
acceptance thereof to DRS by DTC. DRS is the system administered by
DTC pursuant to which the Depositary may register the ownership of
uncertificated American Depositary Shares, which ownership shall be evidenced by
periodic statements issued by the Depositary to the Owners entitled
thereto. Profile is a required feature of DRS which allows a DTC
participant, claiming to act on behalf of an Owner, to direct the Depositary to
register a transfer of those American Depositary Shares to DTC or its nominee
and to deliver those American Depositary Shares to the DTC account of that DTC
participant without receipt by the Depositary of prior authorization from the
Owner to register such transfer.
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(b) In
connection with and in accordance with the arrangements and procedures relating
to DRS/Profile, the parties understand that the Depositary will not verify,
determine or otherwise ascertain that the DTC participant which is claiming to
be acting on behalf of an Owner in requesting registration of transfer and
delivery described in subsection (a) has the actual authority to act on behalf
of the Owner (notwithstanding any requirements under the Uniform Commercial
Code). For the avoidance of doubt, the provisions of Sections 5.03
and 5.08 of the Deposit Agreement shall apply to the matters arising from the
use of the DRS. The parties agree that the Depositary’s reliance on
and compliance with instructions received by the Depositary through the
DRS/Profile System and in accordance with the Deposit Agreement, shall not
constitute negligence or bad faith on the part of the Depositary.
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23.
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ARBITRATION;
SETTLEMENT OF DISPUTES.
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(a) Any
controversy, claim or cause of action brought by any party hereto against the
Company arising out of or relating to the Shares or other Deposited Securities,
the American Depositary Shares, the Receipts or this Agreement, or the breach
hereof or thereof, shall be settled by arbitration in accordance with the
International Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrators may be entered in any court
having jurisdiction thereof; provided, however, that in the
event of any third-party litigation to which the Depositary is a party and to
which the Company may properly be joined, the Company may be so joined in any
court in which such litigation is proceeding; and provided, further, that any
such controversy, claim or cause of action brought by a party hereto against the
Company relating to or based upon the provisions of the Federal securities laws
of the United States or the rules and regulations promulgated thereunder shall
be submitted to arbitration as provided in this Section 7.06 if, but only if, so
elected by the claimant.
The place
of the arbitration shall be ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America, and the language of the arbitration shall be
English.
The
number of arbitrators shall be three, each of whom shall be disinterested in the
dispute or controversy, shall have no connection with any party thereto, and
shall be an attorney experienced in international securities
transactions. Each party shall appoint one arbitrator and the two
arbitrators shall select a third arbitrator who shall serve as chairperson of
the tribunal. If a dispute, controversy or cause of action shall
involve more than two parties, the parties shall attempt to align themselves in
two sides (i.e., claimant(s) and respondent(s)), each of which shall appoint one
arbitrator as if there were only two parties to such dispute, controversy or
cause of action. If such alignment and appointment shall not have
occurred within thirty (30) calendar days after the initiating party serves the
arbitration demand, the American Arbitration Association shall appoint the three
arbitrators, each of whom shall have the qualifications described
above. The parties and the American Arbitration Association may
appoint from among the nationals of any country, whether or not a party is a
national of that country.
The
arbitral tribunal shall have no authority to award any consequential, special or
punitive damages or other damages not measured by the prevailing party’s actual
damages and may not, in any event, make any ruling, finding or award that does
not conform to the terms and conditions of this Deposit
Agreement.
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(b) Any
controversy, claim or cause of action arising out of or relating to the Shares
or other Deposited Securities, the American Depositary Shares, the Receipts or
this Deposit Agreement not subject to arbitration under this Section 7.06 shall
be litigated in the Federal and state courts in the Borough of Manhattan, The
City of New York and the Company hereby submits to the personal jurisdiction of
the court in which such action or proceeding is brought.
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24.
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SUBMISSION TO
JURISDICTION; JURY TRIAL WAIVER; WAIVER OF
IMMUNITIES.
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In the
Deposit Agreement, the Company has (i) appointed Corporation Service Company,
1133 Avenue of the Americas, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the State
of New York, as the Company's authorized agent upon which process may be served
in any suit or proceeding (including any arbitration proceeding) arising out of
or relating to the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, (ii) consented and submitted to the
jurisdiction of any state or federal court in the State of New York in which any
such suit or proceeding may be instituted, and (iii) agreed that service of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding.
EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER
AND HOLDER) THEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR
PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE
AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF,
INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY OR
TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
To the
extent that the Company or any of its properties, assets or revenues may have or
hereafter become entitled to, or have attributed to it, any right of immunity,
on the grounds of sovereignty or otherwise, from any legal action, suit or
proceeding, from the giving of any relief in any respect thereof, from setoff or
counterclaim, from the jurisdiction of any court, from service of process, from
attachment upon or prior to judgment, from attachment in aid of execution or
judgment, or other legal process or proceeding for the giving of any relief or
for the enforcement of any judgment, in any jurisdiction in which proceedings
may at any time be commenced, with respect to its obligations, liabilities or
any other matter under or arising out of or in connection with the Shares or
Deposited Securities, the American Depositary Shares, the Receipts or the
Deposit Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
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25.
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DISCLOSURE OF
INTERESTS.
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The
Company may from time to time request Owners to provide information as to the
capacity in which such Owners own or owned American Depositary Shares and
regarding the identity of any other persons then or previously interested in
such American Depositary Shares and the nature of such interest. Each
Owner agrees to provide any information requested by the Company or the
Depositary pursuant to this Section 3.04. The Depositary agrees to
comply with reasonable written instructions received from the Company requesting
that the Depositary forward any such requests to the Owners and to forward to
the Company any such responses to such requests received by the
Depositary. The Depositary shall provide reasonable assistance to the
Company, at the Company’s request and expense, in obtaining information sought
by the Company pursuant to Section 3.04 of the Deposit
Agreement.
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