Registration
No. 333 -
As
filed with the Securities and Exchange Commission on March
11, 2010
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
F-6
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933 FOR AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN
DEPOSITARY RECEIPTS
China
Lodging Group, Limited
(Exact
name of issuer of deposited securities as specified in its charter)
[N/A]
(Translation
of issuer’s name into English)
The
Cayman Islands
(Jurisdiction
of incorporation or organization of issuer)
CITIBANK,
N.A.
(Exact
name of depositary as specified in its charter)
399 Park
Avenue
New York,
New York 10043
(212)
816-6690
(Address,
including zip code, and telephone number, including area code, of depositary’s
principal executive offices)
CT
Corporation System
111
Eighth Avenue, 13th Floor
New York,
New York 10011
(212)
604-1666
(Address,
including zip code, and telephone number, including area code, of agent for
service)
Copies
to:
|
Howard
Zhang, Esq.
Davis
Polk & Wardwell LLP
26/F,
Twin Towers (West)
B12
Jian Guo Men Wai Avenue Chaoyang District
Beijing
100022, China
|
Herman
H. Raspé, Esq.
Patterson
Belknap Webb & Tyler LLP
1133
Avenue of the Americas
New
York, New
York 10036
|
|
It
is proposed that this filing become effective under Rule 466:
|
|||
| If a separate registration statement has been filed to register the deposited shares, check the following box : x | |||
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of
Securities
to be Registered
|
Amount
to be
Registered
|
Proposed
Maximum
Aggregate
Price Per Unit*
|
Proposed
Maximum
Aggregate
Offering Price**
|
Amount
of
Registration
Fee
|
|
American
Depositary Shares, each representing four (4) ordinary shares,
par value US$0.0001 per share, of China Lodging Group,
Limited.
|
100,000,000
|
US$5.00
|
US$5,000.000
|
US$356.50
|
|
*
|
Each
unit represents 100 American Depositary
Shares.
|
|
**
|
Estimatedsolely
for the purpose of calculating the registration fee. Pursuant
to Rule 457(k), such estimate is computed on the basis of the maximum
aggregate fees or charges to be imposed in connection with the issuance of
American Depositary Shares.
|
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
This
Registration Statement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of such counterparts together shall
constitute one and the same instrument.
ii
PART
I
INFORMATION
REQUIRED IN PROSPECTUS
Cross
Reference Sheet
Item
1. DESCRIPTION OF SECURITIES TO BE REGISTERED
| Item Number and Caption |
Location
in Form of American
Depositary
Receipt (“Receipt”)
Filed Herewith as
Prospectus
|
|||
| 1. | Name of Depositary and address of its principal executive office |
Face of Receipt
- Introductory Article.
|
||
| 2. | Title of Receipts and identity of deposited securities |
Face of
Receipt - Top Center.
|
||
|
Terms
of Deposit:
|
||||
| (i) |
The
amount of deposited securities represented by one American Depositary
Share ("ADSs")
|
Face of
Receipt - Upper right corner.
|
||
| (ii) | The procedure for voting, if any, the deposited securities |
Reverse of
Receipt - Paragraphs (16) and
(17).
|
||
| (iii) | The collection and distribution of dividends |
Reverse of
Receipt - Paragraph (14).
|
||
| (iv) | The transmission of notices, reports and proxy soliciting material |
Face of
Receipt - Paragraph (13);
Reverse of
Receipt - Paragraph (16).
|
||
| (v) | The sale or exercise of rights |
Reverse of Receipt
– Paragraphs (14) and
(16).
|
||
| (vi) | The deposit or sale of securities resulting from dividends, splits or plans of reorganization |
Face of Receipt
- Paragraphs (3) and (6);
Reverse of
Receipt - Paragraphs (14) and (18).
|
||
| (vii) | Amendment, extension or termination of the deposit agreement |
Reverse of
Receipt - Paragraphs (22) and (23) (no provision for
extensions).
|
||
| (viii) | Rights of holders of Receipts to inspect the transfer books of the Depositary and the list of holders of ADSs |
Face of Receipt
- Paragraph (13).
|
||
I-1
|
Item Number and
Caption
|
Location
in Form of American
Depositary
Receipt (“Receipt”)
Filed Herewith as
Prospectus
|
|||
| (ix) |
Restrictions
upon the right to deposit or withdraw the underlying
securities
|
Face of Receipt
– Paragraphs (2), (3), (4), (6), (7), (9) and
(10). |
||
| (x) | Limitation upon the liability of the Depositary |
Face of Receipt
- Paragraph (7);
Reverse of
Receipt - Paragraphs (19) and (20).
|
||
| 3. | Fees and charges which may be imposed directly or indirectly on holders of ADSs | |||
|
Face of Receipt
- Paragraph (10).
|
||||
|
Item
2. AVAILABLE INFORMATION
|
Face of Receipt
- Paragraph (13).
|
|||
The
Company is subject to the periodic reporting requirements of the United States
Securities Exchange Act of 1934, as amended, and, accordingly, files certain
reports with, and submits certain reports to, the United States Securities and
Exchange Commission (the “Commission”). These
reports can be retrieved from the Commission’s internet website (www.sec.gov),
and can be inspected and copied at the public reference facilities maintained by
the Commission at 100 F Street, N.E., Washington D.C. 20549.
I-2
PROSPECTUS
The
Prospectus consists of the proposed form of American Depositary Receipt included
as Exhibit A to the Form of Deposit Agreement filed as Exhibit (a) to this
Registration Statement on Form F-6 and is incorporated herein by
reference.
I-3
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 3.
EXHIBITS
|
|
(a)
|
Form
of Deposit Agreement, by and among China Lodging Group, Limited (the
“Company”), Citibank, N.A., as depositary (the “Depositary”), and all
Holders and Beneficial Owners of American Depositary Shares issued
thereunder (“Deposit Agreement”). — Filed
herewith as Exhibit (a).
|
|
|
(b)
|
Any
other agreement to which the Depositary is a party relating to the
issuance of the American Depositary Shares registered hereunder or the
custody of the deposited securities represented thereby. —
None.
|
|
|
(c)
|
Every
material contract relating to the deposited securities between the
Depositary and the issuer of the deposited securities in effect at any
time within the last three years. —
None.
|
|
|
(d)
|
Opinion
of counsel for the Depositary as to the legality of the securities to be
registered. —
Filed herewith as Exhibit
(d).
|
|
|
(e)
|
Certificate
under Rule 466. —
None.
|
|
|
(f)
|
Powers
of Attorney for certain officers and directors and the authorized
representative of the Company. —
Set forth on the signature pages
hereto.
|
II-1
Item
4. UNDERTAKINGS
|
|
(a)
|
The
Depositary undertakes to make available at the principal office of the
Depositary in the United States, for inspection by holders of ADSs, any
reports and communications received from the issuer of the deposited
securities which are both (1) received by the Depositary as the holder of
the deposited securities, and (2) made generally available to the holders
of the underlying securities by the
issuer.
|
|
|
(b)
|
If
the amount of fees charged is not disclosed in the prospectus, the
Depositary undertakes to prepare a separate document stating the amount of
any fee charged and describing the service for which it is charged and to
deliver promptly a copy of such fee schedule without charge to anyone upon
request. The Depositary undertakes to notify each registered
holder of an ADS thirty (30) days before any change in the fee
schedule.
|
II-2
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, Citibank, N.A.,
acting solely on behalf of the legal entity to be created by the Deposit
Agreement, by and among China Lodging Group, Limited, Citibank, N.A., as
depositary, and all Holders and Beneficial Owners of American Depositary Shares
to be issued thereunder, certifies that it has reasonable grounds to believe
that all the requirements for filing on Form F-6 are met and has duly caused
this Registration Statement on Form F-6 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of New York, State of New
York, on the 11th day of March, 2010.
|
Legal
entity to be created by the Deposit Agreement under which the American
Depositary Shares registered hereunder are to be issued, each American
Depositary Share representing four (4) ordinary shares par value US$0.0001
per share, of China Lodging Group, Limited.
|
||||
|
CITIBANK,
N.A., solely in its capacity as Depositary
|
||||
|
|
By:
|
/s/ Thomas Crane | ||
| Name: |
Thomas
Crane
|
|||
| Title: | Vice President | |||
II-3
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, China Lodging
Group, Limited certifies that it has reasonable grounds to believe that all the
requirements for filing on Form F-6 are met and has duly caused this
Registration Statement on Form F-6 to be signed on its behalf by the undersigned
thereunto duly authorized, in Shanghai, People’s Republic of China on March 11,
2010.
|
China
Lodging Group, Limited
|
||||
|
|
By:
|
/s/ Tuo Zhang | ||
| Name: |
Tuo
(Matthew) Zhang
|
|||
| Title: |
Chief
Executive Officer
|
|||
II-4
POWERS OF
ATTORNEY
KNOW ALL PERSONS BY THESE
PRESENTS, that each person whose signature appears below constitutes and
appoints each of Tuo (Matthew) Zhang and Min (Jenny) Zhang to act as his/her true
and lawful attorney-in-fact and agent, with full power of substitution, for
him/her and in his/her name, place and stead, in any and all such capacities, to
sign any and all amendments, including post-effective amendments, and
supplements to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the United
States Securities and Exchange Commission, granting unto said attorney-in-fact
and agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as s/he might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his/her substitute
or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement on Form F-6 has been signed by the following persons in the following
capacities on March 11, 2010.
|
Signature
|
Title
|
|
|
/s/ Qi Ji
|
Executive
Chairman of the Board of Directors
|
|
|
Name
Qi Ji
|
||
|
/s/ Tuo Zhang
|
Chief
Executive Officer
|
|
|
Name:
Tuo (Matthew) Zhang
|
(principal
executive officer)
|
|
|
/s/ Min Zhang
|
Chief
Financial Officer
|
|
|
Name:
Min (Jenny) Zhang
|
(principal
financial and accounting officer)
|
|
|
/s/ John Jiong Wu
|
Director
|
|
|
Name:
John Jiong Wu
|
||
|
/s/ Tongtong Zhao
|
Director
|
|
|
Name:
Tongtong Zhao
|
||
|
/s/ Ping Ping
|
Independent
Director
|
|
|
Name:
Ping Ping
|
||
|
/s/ Yan Huang
|
Independent
Director
|
|
|
Name:
Yan Huang
|
II-5
SIGNATURE
OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES
Pursuant
to the Securities Act of 1933, as amended, the undersigned, the duly authorized
representative in the United States of China Lodging Group, Limited, has signed
this registration statement in Newark, Delaware, on March 11, 2010.
|
Authorized
Representative
|
||||
|
|
By:
|
/s/ Donald J. Puglisi | ||
| Name: |
Donald
J. Puglisi
|
|||
| Title: |
Managing
Director
|
|||
Index to
Exhibits
|
Exhibit
|
Document
|
Sequentially
Numbered
Page
|
|
(a)
|
Form
of Deposit Agreement
|
|
|
(d)
|
Opinion
of Counsel to the Depositary
|
Exhibit
(a)
DEPOSIT
AGREEMENT
by and
among
CHINA
LODGING GROUP, LIMITED
AND
CITIBANK,
N.A.,
as
Depositary,
AND
THE
HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN
DEPOSITARY SHARES
ISSUED
HEREUNDER
Dated as
of [date],
2010
TABLE OF
CONTENTS
|
ARTICLE
I DEFINITIONS
|
1
|
||
|
Section
1.1
|
“ADS
Distribution Record Date”
|
1
|
|
|
Section
1.2
|
“ADS
Record Date”
|
1
|
|
|
Section
1.3
|
“Affiliate”
|
2
|
|
|
Section
1.4
|
“American
Depositary Receipt(s)”, “ADR(s)” and “Receipt(s)”
|
2
|
|
|
Section
1.5
|
“American
Depositary Share(s)” and “ADS(s)”
|
2
|
|
|
Section
1.6
|
“Articles
of Association”
|
2
|
|
|
Section
1.7
|
“Beneficial
Owner”
|
2
|
|
|
Section
1.8
|
“Certificated
ADS(s)”
|
2
|
|
|
Section
1.9
|
“Commission”
|
2
|
|
|
Section
1.10
|
“Company”
|
3
|
|
|
Section
1.11
|
“Custodian”
|
3
|
|
|
Section
1.12
|
“Deliver”
and “Delivery”
|
3
|
|
|
Section
1.13
|
“Deposit
Agreement”
|
3
|
|
|
Section
1.14
|
“Depositary”
|
3
|
|
|
Section
1.15
|
“Deposited
Securities”
|
3
|
|
|
Section
1.16
|
“Dollars”
and “$”
|
3
|
|
|
Section
1.17
|
“DTC”
|
3
|
|
|
Section
1.18
|
“DTC
Participant”
|
3
|
|
|
Section
1.19
|
“Exchange
Act”
|
4
|
|
|
Section
1.20
|
“Foreign
Currency”
|
4
|
|
|
Section
1.21
|
“Full
Entitlement ADR(s)”, “Full Entitlement ADS(s)” and “Full Entitlement
Share(s)”
|
4
|
|
|
Section
1.22
|
“Holder(s)”
|
4
|
|
|
Section
1.23
|
“Partial
Entitlement ADR(s)”, “Partial Entitlement ADS(s)” and “Partial Entitlement
Share(s)”
|
4
|
|
|
Section
1.24
|
“Pre-Release
Applicant” and “Pre-Cancellation Applicant”
|
4
|
|
|
Section
1.25
|
“Pre-Release
Transactions” and Pre-Cancellation Transactions”
|
4
|
|
|
Section
1.26
|
“Principal
Office”
|
4
|
|
|
Section
1.27
|
“Registrar”
|
4
|
|
|
Section
1.28
|
“Restricted
Securities”
|
4
|
|
|
Section
1.29
|
“Restricted
ADR(s)”, “Restricted ADS(s)” and “Restricted Shares”
|
5
|
|
|
Section
1.30
|
“Securities
Act”
|
5
|
|
|
Section
1.31
|
“Share
Registrar”
|
5
|
|
|
Section
1.32
|
“Shares”
|
5
|
|
|
Section
1.33
|
“Uncertificated
ADS(s)”
|
5
|
|
|
Section
1.34
|
“Uncertificated
Restricted ADS(s)”
|
5
|
|
|
Section
1.35
|
“United
States” and “U.S.”
|
5
|
|
|
ARTICLE
II APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
|
5
|
||
|
Section
2.1
|
Appointment
of Depositary.
|
5
|
|
|
Section
2.2
|
Form
and Transferability of ADSs.
|
6
|
|
|
Section
2.3
|
Deposit
of Shares.
|
7
|
|
|
Section
2.4
|
Registration
and Safekeeping of Deposited Securities.
|
9
|
|
|
Section
2.5
|
Issuance
of ADSs.
|
9
|
|
|
Section
2.6
|
Transfer,
Combination and Split-up of ADRs.
|
9
|
|
|
Section
2.7
|
Surrender
of ADSs and Withdrawal of Deposited Securities.
|
10
|
|
|
Section
2.8
|
Limitations
on Execution and Delivery, Transfer, etc. of ADSs; Suspension of Delivery,
Transfer, etc.
|
12
|
|
|
Section
2.9
|
Lost
ADRs, etc.
|
12
|
|
|
Section
2.10
|
Cancellation
and Destruction of Surrendered ADRs; Maintenance of
Records.
|
13
|
|
|
Section
2.11
|
Escheatment.
|
13
|
|
|
Section
2.12
|
Partial
Entitlement ADSs.
|
13
|
|
|
Section
2.13
|
Certificated/Uncertificated
ADSs.
|
14
|
|
|
Section
2.14
|
Restricted
ADSs.
|
15
|
|
|
ARTICLE
III CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF
ADSs
|
17
|
||
|
Section
3.1
|
Proofs,
Certificates and Other Information.
|
17
|
|
|
Section
3.2
|
Liability
for Taxes and Other Charges.
|
17
|
|
|
Section
3.3
|
Representations
and Warranties on Deposit of Shares.
|
18
|
|
|
Section
3.4
|
Compliance
with Information Requests.
|
18
|
|
|
Section
3.5
|
Ownership
Restrictions.
|
18
|
|
|
Section
3.6
|
Reporting
Obligations and Regulatory Approvals.
|
19
|
|
|
ARTICLE
IV THE DEPOSITED SECURITIES
|
19
|
||
|
Section
4.1
|
Cash
Distributions.
|
19
|
|
|
Section
4.2
|
Distribution
in Shares.
|
20
|
|
|
Section
4.3
|
Elective
Distributions in Cash or Shares.
|
20
|
|
|
Section
4.4
|
Distribution
of Rights to Purchase Additional ADSs.
|
21
|
|
|
Section
4.5
|
Distributions
Other Than Cash, Shares or Rights to Purchase Shares.
|
23
|
|
|
Section
4.6
|
Distributions
with Respect to Deposited Securities in Bearer Form.
|
24
|
|
|
Section
4.7
|
Redemption.
|
24
|
|
|
Section
4.8
|
Conversion
of Foreign Currency.
|
24
|
|
|
Section
4.9
|
Fixing
of ADS Record Date.
|
25
|
|
|
Section
4.10
|
Voting
of Deposited Securities.
|
25
|
|
|
Section
4.11
|
Changes
Affecting Deposited Securities.
|
28
|
|
|
Section
4.12
|
Available
Information.
|
28
|
|
|
Section
4.13
|
Reports.
|
28
|
|
|
Section
4.14
|
List
of Holders.
|
29
|
|
|
Section
4.15
|
Taxation.
|
29
|
|
|
ARTICLE
V THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
|
30
|
||
|
Section
5.1
|
Maintenance
of Office and Transfer Books by the Registrar.
|
30
|
|
|
Section
5.2
|
Exoneration.
|
30
|
|
|
Section
5.3
|
Standard
of Care.
|
31
|
|
3
|
Section
5.4
|
Resignation
and Removal of the Depositary; Appointment of Successor
Depositary.
|
32
|
|
|
Section
5.5
|
The
Custodian.
|
32
|
|
|
Section
5.6
|
Notices
and Reports.
|
33
|
|
|
Section
5.7
|
Issuance
of Additional Shares, ADSs etc.
|
34
|
|
|
Section
5.8
|
Indemnification.
|
35
|
|
|
Section
5.9
|
Fees
and Charges of Depositary.
|
36
|
|
|
Section
5.10
|
Pre-Release
and Pre-Cancellation Transactions.
|
37
|
|
|
Section
5.11
|
Restricted
Securities Owners.
|
38
|
|
|
ARTICLE
VI AMENDMENT AND TERMINATION
|
38
|
||
|
Section
6.1
|
Amendment/Supplement.
|
38
|
|
|
Section
6.2
|
Termination.
|
39
|
|
|
ARTICLE
VII MISCELLANEOUS
|
40 | ||
|
Section
7.1
|
Counterparts.
|
40
|
|
|
Section
7.2
|
No
Third Party Beneficiaries.
|
40
|
|
|
Section
7.3
|
Severability.
|
40
|
|
|
Section
7.4
|
Holders
and Beneficial Owners as Parties; Binding Effect.
|
40
|
|
|
Section
7.5
|
Notices.
|
41
|
|
|
Section
7.6
|
Governing
Law and Jurisdiction.
|
41
|
|
|
Section
7.7
|
Assignment.
|
43
|
|
|
Section
7.8
|
Compliance
with U.S. Securities Laws.
|
43
|
|
|
Section
7.9
|
Cayman
Islands Law References.
|
43
|
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Section
7.10
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Titles
and References.
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43
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EXHIBITS
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Form
of ADR.
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A-1
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Fee
Schedule.
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B-1
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4
DEPOSIT
AGREEMENT
DEPOSIT AGREEMENT, dated as of
[Date], 2010, by and
among (i) CHINA LODGING GROUP, LIMITED, a company incorporated under the
laws of the Cayman Islands, and its successors (the “Company”),
(ii) CITIBANK, N.A., a national banking association organized under the
laws of the United States of America acting in its capacity as depositary, and
any successor depositary hereunder (the “Depositary”), and (iii) all
Holders and Beneficial Owners of American Depositary Shares issued hereunder
(all such capitalized terms as hereinafter defined).
W I T N E S S E T
H T H A T:
WHEREAS, the Company desires
to establish with the Depositary an ADR facility to provide, inter alia, for the deposit
of the Shares (as hereinafter defined) and the creation of American Depositary
Shares representing the Shares so deposited; and
WHEREAS, the Depositary is
willing to act as the Depositary for such ADR facility upon the terms set forth
in the Deposit Agreement (as hereinafter defined); and
WHEREAS, any American
Depositary Receipts issued pursuant to the terms of the Deposit Agreement are to
be substantially in the form of Exhibit A attached
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in the Deposit Agreement; and
WHEREAS, the American
Depositary Shares to be issued pursuant to the terms of the Deposit Agreement
are to be listed for trading on the [Nasdaq Global Select Market];
and
WHEREAS, the Board of
Directors of the Company (or an authorized committee thereof) has duly approved
the establishment of an ADR facility upon the terms set forth in the Deposit
Agreement, the execution and delivery of the Deposit Agreement on behalf of the
Company, and the actions of the Company and the transactions contemplated
herein.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
All
capitalized terms used, but not otherwise defined, herein shall have the
meanings set forth below, unless otherwise clearly indicated:
Section
1.1 “ADS Distribution Record
Date” shall mean an ADS Record
Date for a distribution.
Section
1.2 “ADS Record
Date” shall
have the meaning given to such term in Section 4.9.
5
Section
1.3 “Affiliate” shall
have the meaning assigned to such term by the Commission (as hereinafter
defined) under Regulation C promulgated under the Securities Act (as hereinafter
defined), or under any successor regulation thereto.
Section
1.4 “American Depositary
Receipt(s)”, “ADR(s)” and “Receipt(s)” shall
mean the certificate(s) issued by the Depositary to evidence the American
Depositary Shares issued under the terms of the Deposit Agreement in the form of
Certificated ADS(s) (as hereinafter defined), as such ADRs may be amended from
time to time in accordance with the provisions of the Deposit
Agreement. An ADR may evidence any number of ADSs and may, in the
case of ADSs held through a central depository such as DTC, be in the form of a
“Balance Certificate.”
Section
1.5 “American Depositary
Share(s)” and “ADS(s)” shall
mean the rights and interests in the Deposited Securities (as hereinafter
defined) granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of the Deposit Agreement and, if issued as Certificated ADS(s), (as
hereinafter defined) the ADR(s) issued to evidence such ADSs. ADS(s)
may be issued under the terms of the Deposit Agreement in the form of
(a) Certificated ADS(s) (as hereinafter defined), in which case the ADS(s)
are evidenced by ADR(s), or (b) Uncertificated ADS(s) (as hereinafter
defined), in which case the ADS(s) are not evidenced by ADR(s) but are reflected
on the direct registration system maintained by the Depositary for such purposes
under the terms of Section 2.13. Unless otherwise specified in the
Deposit Agreement or in any ADR, or unless the context otherwise requires, any
reference to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s),
individually or collectively, as the context may require. Each ADS
shall represent the right to receive, subject to the terms and conditions of the
Deposit Agreement and the applicable ADR (if issued as a Certificated ADS) four
(4) Shares until there shall occur a distribution upon Deposited Securities
referred to in Section 4.2 or a change in Deposited Securities referred to in
Section 4.11 with respect to which additional ADSs are not issued, and
thereafter each ADS shall represent the right to receive, subject to the terms
and conditions of the Deposit Agreement and the applicable ADR (if issued as a
Certificated ADS), the Deposited Securities determined in accordance
with the terms of such Sections.
Section
1.6 “Articles of
Association” shall
mean the Articles of Association of the Company, as amended and restated from
time to time.
Section
1.7 “Beneficial
Owner” shall
mean, as to any ADS, any person or entity having a beneficial interest deriving
from the ownership of such ADS. A Beneficial Owner of ADSs may or may
not be the Holder of such ADSs. A Beneficial Owner shall be able to
exercise any right or receive any benefit hereunder solely through the person
who is the Holder of the ADSs owned by such Beneficial Owner. Unless
otherwise identified to the Depositary, a Holder shall be deemed to be the
Beneficial Owner of all the ADSs registered in his/her/its name.
Section
1.8 “Certificated
ADS(s)” shall
have the meaning set forth in Section 2.13.
Section
1.9 “Commission” shall
mean the Securities and Exchange Commission of the United States or any
successor governmental agency thereto in the United States.
6
Section
1.10 “Company” shall
mean China Lodging Group, Limited, a company incorporated and existing under the
laws of the Cayman Islands, and its successors.
Section
1.11 “Custodian” shall
mean (i) as of the date hereof, Citibank, N.A. - Hong Kong, having its principal
office at 10/F, Harbour Front (II), 22, Tak Fung Street, Hung Hom, Kowloon, Hong
Kong, as the custodian for the purposes of the Deposit Agreement, (ii) Citibank,
N.A., acting as custodian of Deposited Securities pursuant to the Deposit
Agreement, and (iii) any other entity that may be appointed by the Depositary
pursuant to the terms of Section 5.5 as successor, substitute or additional
custodian hereunder. The term “Custodian” shall mean any Custodian
individually or all Custodians collectively, as the context
requires.
Section
1.12 “Deliver” and
“Delivery” shall
mean when used in respect of ADSs, Deposited Securities and Shares, either (i)
the physical delivery of certificate(s) representing such securities, or (ii)
the electronic delivery of such securities by means of book-entry transfer, if
available.
Section
1.13 “Deposit
Agreement” shall
mean this Deposit Agreement and all exhibits hereto, as the same may from time
to time be amended and supplemented from time to time in accordance with the
terms of the Deposit Agreement.
Section
1.14 “Depositary” shall
mean Citibank, N.A., a national banking association organized under the laws of
the United States, in its capacity as depositary under the terms of the Deposit
Agreement, and any successor depositary hereunder.
Section
1.15 “Deposited
Securities” shall
mean Shares at any time deposited under the Deposit Agreement and any and all
other securities, property and cash held by the Depositary or the Custodian in
respect thereof, subject, in the case of cash, to the provisions of
Section 4.8. The collateral delivered in connection with
Pre-Release Transactions and Pre-Cancellation Transactions described in
Section 5.10 shall not constitute Deposited Securities.
Section
1.16 “Dollars” and
“$” shall
refer to the lawful currency of the United States.
Section
1.17 “DTC” shall
mean The Depository Trust Company, a national clearinghouse and the central
book-entry settlement system for securities traded in the United States and, as
such, the custodian for the securities of DTC Participants (as hereinafter
defined) maintained in DTC, and any successor thereto.
Section
1.18 “DTC
Participant” shall
mean any financial institution (or any nominee of such institution) having one
or more participant accounts with DTC for receiving, holding and delivering the
securities and cash held in DTC. A DTC Participant may or may not be
a Beneficial Owner. If a DTC Participant is not the Beneficial Owner
of the ADSs credited to its account at DTC, or of the ADSs in respect of which
the DTC Participant is otherwise acting, such DTC Participant shall be deemed,
for all purposes hereunder, to have all requisite authority to act on behalf of
the Beneficial Owner(s) of the ADSs credited to its account at DTC or in respect
of which the DTC Participant is so acting.
7
Section
1.19 “Exchange
Act” shall
mean the United States Securities Exchange Act of 1934, as amended from time to
time.
Section
1.20 “Foreign
Currency” shall
mean any currency other than Dollars.
Section
1.21 “Full Entitlement ADR(s)”,
“Full Entitlement ADS(s)” and “Full Entitlement Share(s)” shall
have the respective meanings set forth in Section 2.11.
Section
1.22 “Holder(s)” shall
mean the person(s) in whose name the ADSs are registered on the books of the
Depositary (or the Registrar, if any) maintained for such purpose. A
Holder may or may not be a Beneficial Owner. If a Holder is not the
Beneficial Owner of the ADS(s) registered in its name, such person shall be
deemed, for all purposes hereunder, to have all requisite authority to act on
behalf of the Beneficial Owners of the ADSs registered in its name.
Section
1.23 “Partial Entitlement
ADR(s)”, “Partial Entitlement ADS(s)” and “Partial Entitlement
Share(s)” shall
have the respective meanings set forth in Section 2.12.
Section
1.24 “Pre-Release Applicant” and
“Pre-Cancellation Applicant” shall
have the respective meanings given to such terms in Section 5.10.
Section
1.25 “Pre-Release Transactions”
and Pre-Cancellation Transactions” shall
have the respective meanings set forth in Section 5.10.
Section
1.26 “Principal
Office” shall
mean, when used with respect to the Depositary, the principal office of the
Depositary at which at any particular time its depositary receipts business
shall be administered, which, at the date of the Deposit Agreement, is located
at 388 Greenwich Street, New York, New York 10013, U.S.A.
Section
1.27 “Registrar” shall
mean the Depositary or any bank or trust company having an office in the Borough
of Manhattan, The City of New York, which shall be appointed by the Depositary
to register issuances, transfers and cancellations of ADSs as herein provided,
and shall include any co-registrar appointed by the Depositary for such
purposes. Registrars (other than the Depositary) may be removed and
substitutes appointed by the Depositary. Each Registrar (other than
the Depositary) appointed pursuant to the Deposit Agreement shall be required to
give notice in writing to the Depositary accepting such appointment and agreeing
to be bound by the applicable terms of the Deposit Agreement.
Section
1.28 “Restricted
Securities” shall
mean Shares, Deposited Securities or ADSs which (i) have been acquired
directly or indirectly from the Company or any of its Affiliates in a
transaction or chain of transactions not involving any public offering and are
subject to resale limitations under the Securities Act or the rules issued
thereunder, or (ii) are held by an officer or director (or persons
performing similar functions) or other Affiliate of the Company, or
(iii) are subject to other restrictions on sale or deposit under the laws
of the United States, the Cayman Islands, or under a shareholder agreement or
the Articles of Association of the Company or under
the regulations of an applicable securities exchange unless, in each case, such
Shares, Deposited Securities or ADSs are being transferred or sold to persons
other than an Affiliate of the Company in a transaction (a) covered by an
effective resale registration statement, or (b) exempt from the
registration requirements of the Securities Act (as hereinafter defined), and
the Shares, Deposited Securities or ADSs are not, when held by such person(s),
Restricted Securities.
8
Section
1.29 “Restricted ADR(s)”,
“Restricted ADS(s)” and “Restricted Shares” shall
have the respective meanings set forth in Section 2.14.
Section
1.30 “Securities
Act” shall
mean the United States Securities Act of 1933, as amended from time to
time.
Section
1.31 “Share
Registrar” shall
mean Codan Trust Company (Cayman) Limited or any other institution organized
under the laws of the Cayman Islands appointed by the Company to carry out the
duties of registrar for the Shares, and any successor thereto.
Section
1.32 “Shares” shall
mean the Company’s ordinary shares, par value $0.0001 per share, validly issued
and outstanding and fully paid and may, if the Depositary so agrees after
consultation with the Company, include evidence of the right to receive Shares;
provided that in no event
shall Shares include evidence of the right to receive Shares with respect to
which the full purchase price has not been paid or Shares as to which preemptive
rights have theretofore not been validly waived or exercised; provided further, however, that, if there shall
occur any change in par or nominal value, split-up, consolidation,
reclassification, exchange, conversion or any other event described in Section
4.11 in respect of the Shares of the Company, the term “Shares” shall
thereafter, to the maximum extent permitted by law, represent the successor
securities resulting from such event.
Section
1.33 “Uncertificated
ADS(s)” shall
have the meaning set forth in Section 2.13.
Section
1.34 “Uncertificated
Restricted ADS(s)” shall
have the meaning set forth in Section 2.14.
Section
1.35 “United States” and
“U.S.” shall
have the meaning assigned to it in Regulation S as promulgated by the
Commission under the Securities Act.
ARTICLE
II
APPOINTMENT
OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT
OF SHARES; EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF
RECEIPTS
Section
2.1 Appointment of
Depositary. The
Company hereby appoints the Depositary as depositary for the Deposited
Securities and hereby authorizes and directs the Depositary to act in accordance
with the terms and conditions set forth in the Deposit Agreement and the
applicable ADRs. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms and conditions of the Deposit Agreement shall be deemed for all purposes
to (a) be a party to and bound by the terms of the Deposit Agreement and
the applicable ADR(s), and (b) appoint the Depositary its attorney-in-fact,
with full power to delegate, to act on its behalf and to take any and all
actions contemplated in the Deposit Agreement and the applicable ADR(s), to
adopt any and all procedures necessary to comply with applicable law and to take
such action as the Depositary in its sole discretion may deem necessary or
appropriate to carry out the purposes of the Deposit Agreement and the
applicable ADR(s), the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof.
9
Section
2.2 Form and Transferability of
ADSs.
(a) Form. Certificated ADSs shall be evidenced
by definitive ADRs which shall be engraved, printed, lithographed or produced in
such other manner as may be agreed upon by the Company and the
Depositary. ADRs may be issued under the Deposit Agreement in
denominations of any whole number of ADSs. The ADRs shall be
substantially in the form set forth in Exhibit A to the
Deposit Agreement, with any appropriate insertions, modifications and omissions,
in each case as otherwise contemplated in the Deposit Agreement or required by
law. ADRs shall be (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary,
(iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
ADSs. No ADR and no Certificated ADS evidenced thereby
shall be entitled to any benefits under the Deposit Agreement or be valid or
enforceable for any purpose against the Depositary or the Company, unless such
ADR shall have been so dated, signed, countersigned and registered. ADRs bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly-authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such ADR by the Depositary. The ADRs shall
bear a CUSIP number that is different from any CUSIP number that was, is or may
be assigned to any depositary receipts previously or subsequently issued
pursuant to any other arrangement between the Depositary (or any other
depositary) and the Company and which are not ADRs outstanding
hereunder.
(b) Legends. The ADRs may be
endorsed with, or have incorporated in the text thereof, such legends or
recitals not inconsistent with the provisions of the Deposit Agreement as
(i) may be necessary to enable the Depositary and the Company to perform
their respective obligations hereunder, (ii) may be required to comply with
any applicable laws or regulations, or with the rules and regulations of any
securities exchange or market upon which ADSs may be traded, listed or quoted,
or to conform with any usage with respect thereto, (iii) may be necessary
to indicate any special limitations or restrictions to which any particular ADRs
or ADSs are subject by reason of the date of issuance of the Deposited
Securities or otherwise, or (iv) may be required by any book-entry system
in which the ADSs are held. Holders and Beneficial Owners shall be
deemed, for all purposes, to have notice of, and to be bound by, the terms and
conditions of the legends set forth, in the case of Holders, on the ADR
registered in the name of the applicable Holders or, in the case of Beneficial
Owners, on the ADR representing the ADSs owned by such Beneficial
Owners.
10
(c) Title. Subject to the
limitations contained herein and in the ADR, title to an ADR (and to each
Certificated ADS
evidenced thereby) shall be transferable upon the same terms as a certificated
security under the laws of the State of New York, provided that, in the case of
Certificated ADSs, such ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of an ADS
(that is, the person in whose name an ADS is registered on the books of the
Depositary) as the absolute owner thereof for all purposes. Neither
the Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or any ADR to any holder or any Beneficial
Owner unless, in the case of a holder of ADSs, such holder is the Holder
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner, or the Beneficial Owner’s representative, is the Holder
registered on the books of the Depositary.
(d) Book-Entry
Systems. The Depositary
shall make arrangements for the acceptance of the ADSs into DTC. All
ADSs held through DTC will be registered in the name of the nominee for DTC
(currently “Cede & Co.”). As such, the nominee for DTC will be
the only “Holder” of all ADSs held through DTC. Unless issued by the
Depositary as Uncertificated ADSs, the ADSs registered in the name of Cede &
Co. will be evidenced by one or more ADR(s) in the form of a “Balance
Certificate,” which will provide that it represents the aggregate number of ADSs
from time to time indicated in the records of the Depositary as being issued
hereunder and that the aggregate number of ADSs represented thereby may from
time to time be increased or decreased by making adjustments on such records of
the Depositary and of DTC or its nominee as hereinafter
provided. Citibank, N.A. (or such other entity as is appointed by DTC
or its nominee) may hold the “Balance Certificate” as custodian for
DTC. Each Beneficial Owner of ADSs held through DTC must rely upon
the procedures of DTC and the DTC Participants to exercise or be entitled to any
rights attributable to such ADSs. The DTC Participants shall for all
purposes be deemed to have all requisite power and authority to act on behalf of
the Beneficial Owners of the ADSs held in the DTC Participants’ respective
accounts in DTC and the Depositary shall for all purposes be authorized to rely
upon any instructions and information given to it by DTC
Participants. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADSs
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC or
its nominee (with respect to the interests of DTC Participants), or (ii) DTC
Participants or their nominees (with respect to the interests of clients of DTC
Participants).
Section
2.3 Deposit of
Shares. Subject
to the terms and conditions of the Deposit Agreement and applicable law, Shares
or evidence of rights to receive Shares (other than Restricted Securities) may
be deposited by any person (including the Depositary in its individual capacity
but subject, however, in the case of the Company or any Affiliate of the
Company, to Section 5.7) at any time, whether or not the transfer books of the
Company or the Share Registrar, if any, are closed, by Delivery of the Shares to
the Custodian. Every deposit of Shares shall be accompanied by the
following: (A) (i) in the case of Shares represented by
certificates issued in registered form, appropriate instruments of
transfer or endorsement, in a form satisfactory to the Custodian,
(ii) in the case of
Shares represented by certificates in bearer form, the requisite coupons
and talons pertaining thereto, and (iii) in the case of Shares delivered by
book-entry transfer, confirmation of such book-entry transfer to the
Custodian or that irrevocable instructions have been given to cause such Shares
to be so transferred, (B) such certifications and payments (including,
without limitation, the Depositary’s fees and related charges) and evidence of
such payments (including, without limitation, stamping or otherwise marking such
Shares by way of receipt) as may be required by the Depositary or the Custodian
in accordance with the provisions of the Deposit Agreement and applicable law,
(C) if the Depositary so requires, a written order directing the Depositary
to issue and deliver to, or upon the written order of, the person(s) stated in
such order the number of ADSs representing the Shares so deposited,
(D) evidence satisfactory to the Depositary (which may be an opinion of
counsel) that all necessary approvals have been granted by, or there has been
compliance with the rules and regulations of, any applicable governmental agency
in the Cayman Islands, and (E) if the Depositary so requires, (i) an
agreement, assignment or instrument satisfactory to the Depositary or the
Custodian which provides for the prompt transfer by any person in whose name the
Shares are or have been recorded to the Custodian of any distribution, or right
to subscribe for additional Shares or to receive other property in respect of
any such deposited Shares or, in lieu thereof, such indemnity or other agreement
as shall be satisfactory to the Depositary or the Custodian and (ii) if the
Shares are registered in the name of the person on whose behalf they are
presented for deposit, a proxy or proxies entitling the Custodian to exercise
voting rights in respect of the Shares for any and all purposes until the Shares
so deposited are registered in the name of the Depositary, the Custodian or any
nominee.
11
Without
limiting any other provision of the Deposit Agreement, the Depositary shall
instruct the Custodian not to, and the Depositary shall not knowingly, accept
for deposit (a) any Restricted Securities (except as contemplated by
Section 2.14) nor (b) any fractional Shares or fractional Deposited
Securities nor (c) a number of Shares or Deposited Securities which upon
application of the ADS to Shares ratio would give rise to fractional
ADSs. No Shares shall be accepted for deposit unless accompanied by
evidence, if any is required by the Depositary, that is reasonably satisfactory
to the Depositary or the Custodian that all conditions to such deposit have been
satisfied by the person depositing such Shares under the laws and regulations of
the Cayman Islands and any necessary approval has been granted by any applicable
governmental body in the Cayman Islands, if any. The Depositary may
issue ADSs against evidence of rights to receive Shares from the Company, any
agent of the Company or any custodian, registrar, transfer agent, clearing
agency or other entity involved in ownership or transaction records in respect
of the Shares. Such evidence of rights shall consist of written
blanket or specific guarantees of ownership of Shares furnished by the Company
or any such custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the
Shares.
Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement (A) any Shares or other securities
required to be registered under the provisions of the Securities Act, unless
(i) a registration statement is in effect as to such Shares or other
securities or (ii) the deposit is made upon terms contemplated in Section
2.14, or (B) any Shares or other securities the deposit of which would
violate any provisions of the Articles of Association of the
Company. For purposes of the foregoing sentence, the Depositary shall
be entitled to rely upon representations and warranties made or deemed made
pursuant to the Deposit Agreement and shall not be required to make any further
investigation. The Depositary will comply with written instructions
of the Company (received by the Depositary reasonably in advance) not to accept
for deposit hereunder any Shares identified in such instructions at such times
and under such circumstances as may reasonably be specified in such instructions
in order to facilitate the Company's compliance with the securities laws of the
United States.
12
Section
2.4 Registration and Safekeeping
of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Shares being deposited hereunder with the Custodian (or
other Deposited Securities pursuant to Article IV hereof), together with the
other documents above specified, to present such certificate(s), together with
the appropriate instrument(s) of transfer or endorsement, duly stamped, if
applicable, to the Share Registrar for transfer and registration of the Shares
(as soon as transfer and registration can be accomplished and at the expense of
the person for whom the deposit is made) in the name of the Depositary, the
Custodian or a nominee of either. Deposited Securities shall be held
by the Depositary or by a Custodian for the account and to the order of the
Depositary or a nominee in each case on behalf of the Holders and Beneficial
Owners, at such place or places as the Depositary or the Custodian shall
determine.
Section
2.5 Issuance of
ADSs. The
Depositary has made arrangements with the Custodian for the Custodian to confirm
to the Depositary upon receipt of a deposit of Shares (i) that a deposit of
Shares has been made pursuant to Section 2.3, (ii) that such Deposited
Securities have been recorded in the name of the Depositary, the Custodian or a
nominee of either on the shareholders’ register maintained by or on behalf of
the Company by the Share Registrar if registered Shares have been deposited or,
if deposit is made by book-entry transfer, confirmation of such transfer on the
books of the book-entry settlement entity, if any, (iii) that all required
documents have been received, and (iv) the person(s) to whom or upon whose
order ADSs are deliverable in respect thereof and the number of ADSs to be so
delivered. Such notification may be made by letter, cable, telex,
SWIFT message or, at the risk and expense of the person making the deposit, by
facsimile or other means of electronic transmission. Upon receiving
such notice from the Custodian, the Depositary, subject to the terms and
conditions of the Deposit Agreement and applicable law, shall issue the ADSs
representing the Shares so deposited to or upon the order of the person(s) named
in the notice delivered to the Depositary and, if applicable, shall execute and
deliver at its Principal Office Receipt(s) registered in the name(s) requested
by such person(s) and evidencing the aggregate number of ADSs to which such
person(s) are entitled, but, in each case, only upon payment to the Depositary
of the charges of the Depositary for accepting a deposit, issuing ADSs (as set
forth in Section 5.9 and Exhibit B
hereto) and all taxes and governmental charges and fees payable in connection
with such deposit and the transfer of the Shares and the issuance of the
ADS(s). The Depositary shall only issue ADSs in whole numbers and
deliver, if applicable, ADR(s) evidencing whole numbers of
ADSs. Nothing herein shall prohibit any Pre-Release Transaction upon
the terms set forth in the Deposit Agreement.
Section
2.6 Transfer, Combination and
Split-up of ADRs.
(a) Transfer. The
Registrar shall register the transfer of ADRs (and of the ADSs represented
thereby) on the books
maintained for such purpose and the Depositary shall (x) cancel such
ADRs and execute new ADRs evidencing the same aggregate number of ADSs as those
evidenced by the ADRs canceled by the Depositary, (y) cause the Registrar
to countersign such new ADRs and (z) Deliver such new ADRs to or upon the
order of the person entitled thereto, if each of the following conditions has
been satisfied: (i) the ADRs have been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a transfer thereof, (ii) the
surrendered ADRs have been properly endorsed or are accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard securities industry practice), (iii) the surrendered ADRs have
been duly stamped (if required by the laws of the State of New York or of the
United States), and (iv) all applicable fees and charges of, and expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 and Exhibit B hereto) have been paid,
subject, however, in each case, to the terms and conditions of the applicable
ADRs, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
13
(b) Combination
& Split Up. The Registrar
shall register the split-up or combination of ADRs (and of the ADSs represented
thereby) on the books maintained for such purpose and the Depositary shall
(x) cancel such ADRs and execute new ADRs for the number of ADSs requested,
but in the aggregate not exceeding the number of ADSs evidenced by the ADRs
cancelled by the Depositary, (y) cause the Registrar to countersign such
new ADRs and (z) Deliver such new ADRs to or upon the order of the Holder
thereof, if each of the following conditions has been
satisfied: (i) the ADRs have been duly Delivered by the Holder
(or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination thereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B hereto)
have been paid, subject,
however, in each case, to the terms and conditions of the applicable
ADRs, of the Deposit Agreement and of applicable law, in each case as in effect
at the time thereof.
(c) Co-Transfer
Agents. The Depositary
may appoint one or more co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices on
behalf of the Depositary and the Depositary shall notify the Company in writing
upon such appointment. In carrying out its functions, a co-transfer
agent may require evidence of authority and compliance with applicable laws and
other requirements by Holders or persons entitled to such ADRs and will be
entitled to protection and indemnity to the same extent as the
Depositary. Such co-transfer agents may be removed and substitutes
appointed by the Depositary and the Depositary shall notify the Company at any
such removal or substitution. Each co-transfer agent appointed under
this Section 2.6 (other than the Depositary) shall give notice in writing to the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of the Deposit Agreement.
Section
2.7 Surrender of ADSs and
Withdrawal of Deposited Securities. The
Holder of ADSs shall be entitled to Delivery (at the Custodian’s designated
office) of the Deposited Securities at the time represented by the ADSs upon
satisfaction of each of the following conditions: (i) the Holder (or a
duly-authorized attorney of the Holder) has duly Delivered ADSs to the
Depositary at its Principal Office (and if applicable, the ADRs evidencing such
ADSs) for the purpose of withdrawal of the Deposited Securities represented
thereby, (ii) if applicable and so required by the
Depositary, the ADRs Delivered to the Depositary for such purpose have been
properly endorsed in blank or are accompanied by proper instruments of transfer
in blank (including signature guarantees in accordance with standard securities
industry practice), (iii) if so required by the Depositary, the Holder of
the ADSs has executed and delivered to the Depositary a written order directing
the Depositary to cause the Deposited Securities being withdrawn to be Delivered
to or upon the written order of the person(s) designated in such order, and (iv)
all applicable fees and charges of, and expenses incurred by, the Depositary and
all applicable taxes and governmental charges (as are set forth in
Section 5.9 and Exhibit B) have been
paid, subject, however, in
each case, to the terms and conditions of the ADRs evidencing the
surrendered ADSs, of the Deposit Agreement, of the Company’s Articles of
Association and of any applicable laws and the rules of the applicable
book-entry settlement entity, and to any provisions of or governing the
Deposited Securities, in each case as in effect at the time
thereof.
14
Upon
satisfaction of each of the conditions specified above, the Depositary
(i) shall cancel the ADSs Delivered to it (and, if applicable, the ADRs
evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver, or cause the
Delivery of, in each case, without unreasonable delay, the Deposited Securities
represented by the ADSs so canceled together with any certificate or other
document of title for the Deposited Securities, or evidence of the electronic
transfer thereof (if available), as the case may be, to or upon the written
order of the person(s) designated in the order delivered to the Depositary for
such purpose, subject however,
in each case, to the terms and conditions of the Deposit Agreement, of
the ADRs evidencing the ADSs so cancelled, of the Articles of Association of the
Company, of any applicable laws and of the rules of the applicable book-entry
settlement entity, and to the terms and conditions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
The
Depositary shall not accept for surrender ADSs representing less than one (1)
Share. In the case of the Delivery to it of ADSs representing a
number other than a whole number of Shares, the Depositary shall cause ownership
of the appropriate whole number of Shares to be Delivered in accordance with the
terms hereof, and shall, at the discretion of the Depositary, either
(i) return to the person surrendering such ADSs the number of ADSs
representing any remaining fractional Share, or (ii) sell or cause to be
sold the fractional Share represented by the ADSs so surrendered in a riskless
capacity, in a public sale or if no public sale market is available, in a
private sale, and remit the proceeds of such sale (net of (a) applicable
fees and charges of, and expenses incurred by, the Depositary and (b) taxes
withheld) to the person surrendering the ADSs.
Notwithstanding
anything else contained in any ADR or the Deposit Agreement, the Depositary may
make delivery at the Principal Office of the Depositary of (i) any cash
dividends or cash distributions, or (ii) any proceeds from the sale of any
distributions of shares or rights, which are at the time held by the Depositary
in respect of the Deposited Securities represented by the ADSs surrendered for
cancellation and withdrawal. At the request, risk and expense of any
Holder so surrendering ADSs, and for the account of such Holder, the Depositary
shall direct the Custodian to forward (to the extent permitted by law) any cash
or other property (other than securities) held by the Custodian in respect of
the Deposited Securities represented by such ADSs to the Depositary for delivery
at the Principal Office of the Depositary. Such direction shall be
given by letter or, at the request, risk and expense of such Holder, by cable,
telex or facsimile transmission.
15
Section
2.8 Limitations on Execution and
Delivery, Transfer, etc. of ADSs; Suspension of Delivery, Transfer,
etc.
(a) Additional
Requirements. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter
of ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.1,
and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of ADRs or ADSs or to the withdrawal of
Deposited Securities and (B) such reasonable regulations as the Depositary
and the Company may establish consistent with the provisions of the
representative ADR, if applicable, the Deposit Agreement and applicable
law.
(b) Additional
Limitations. The issuance of
ADSs against deposits of Shares generally or against deposits of particular
Shares may be suspended, or the deposit of particular Shares may be refused, or
the registration of transfer of ADSs in particular instances may be refused, or
the registration of transfers of ADSs generally may be suspended, during any
period when the transfer books of the Company, the Depositary, a Registrar or
the Share Registrar are closed or if any such action is deemed necessary or
advisable by the Depositary (whereupon the Depositary shall notify the Company)
or the Company, in good faith, at any time or from time to time because of any
requirement of law or regulation, any government or governmental body or
commission or any securities exchange on which the ADSs or Shares are listed, or
under any provision of the Deposit Agreement or the representative ADR(s), if
applicable, or under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 7.8.
(c) Regulatory
Restrictions. Notwithstanding
any provision of the Deposit Agreement or any ADR(s) to the contrary, Holders
are entitled to surrender outstanding ADSs to withdraw the Deposited Securities
associated herewith at any time subject only to (i) temporary delays caused
by closing the transfer books of the Depositary or the Company or the deposit of
Shares in connection with voting at a shareholders’ meeting or the payment of
dividends, (ii) the payment of fees, taxes and similar charges,
(iii) compliance with any U.S. or foreign laws or governmental regulations
relating to the ADSs or to the withdrawal of the Deposited Securities, and
(iv) other circumstances specifically contemplated by Instruction I.A.(l)
of the General Instructions to Form F-6 (as such General Instructions may be
amended from time to time).
Section
2.9 Lost ADRs,
etc. In
case any ADR shall be mutilated, destroyed, lost, or stolen, the Depositary
shall execute and deliver a new ADR of like tenor at the expense of the Holder
(a) in the case of a
mutilated ADR, in exchange of and substitution for such mutilated ADR
upon cancellation thereof, or (b) in the case of a destroyed, lost or
stolen ADR, in lieu of and in substitution for such destroyed, lost, or
stolen ADR, after the Holder thereof (i) has submitted to the Depositary a
written request for such exchange and substitution before the Depositary has
notice that the ADR has been acquired by a bona fide purchaser, (ii) has
provided such security or indemnity (including an indemnity bond) as may be
required by the Depositary to save it and any of its agents harmless, and
(iii) has satisfied any other reasonable requirements imposed by the
Depositary, including, without limitation, evidence satisfactory to the
Depositary of such destruction, loss or theft of such ADR, the authenticity
thereof and the Holder’s ownership thereof.
16
Section
2.10 Cancellation and Destruction
of Surrendered ADRs; Maintenance of Records. All
ADRs surrendered to the Depositary shall be canceled by the
Depositary. Canceled ADRs shall not be entitled to any benefits under
the Deposit Agreement or be valid or enforceable against the Depositary for any
purpose. The Depositary is authorized to destroy ADRs so canceled,
provided the Depositary maintains a record of all destroyed ADRs. Any
ADSs held in book-entry form (i.e., through accounts at
DTC) shall be deemed canceled when the Depositary causes the number of ADSs
evidenced by the Balance Certificate to be reduced by the number of ADSs
surrendered (without the need to physically destroy the Balance
Certificate).
Section
2.11 Escheatment. In
the event any unclaimed property relating to the ADSs, for any reason, is in the
possession of Depositary and has not been claimed by the Holder thereof or
cannot be delivered to the Holder thereof through usual channels, the Depositary
shall, upon expiration of any applicable statutory period relating to abandoned
property laws, escheat such unclaimed property to the relevant authorities in
accordance with the laws of each of the relevant States of the United
States.
Section
2.12 Partial Entitlement
ADSs. In
the event any Shares are deposited which (i) entitle the holders thereof to
receive a per-share distribution or other entitlement in an amount different
from the Shares then on deposit or (ii) are not fully fungible (including,
without limitation, as to settlement or trading) with the Shares then on deposit
(the Shares then on deposit collectively, “Full Entitlement
Shares” and the Shares with different entitlement, “Partial Entitlement
Shares”), the Depositary shall (i) cause the Custodian to hold
Partial Entitlement Shares separate and distinct from Full Entitlement Shares,
and (ii) subject to the terms of the Deposit Agreement, issue ADSs
representing Partial Entitlement Shares which are separate and distinct from the
ADSs representing Full Entitlement Shares, by means of separate CUSIP numbering
and legending (if necessary) and, if applicable, by issuing ADRs evidencing such
ADSs with applicable notations thereon (“Partial Entitlement
ADSs/ADRs” and “Full Entitlement
ADSs/ADRs”, respectively). If and when Partial Entitlement
Shares become Full Entitlement Shares, the Depositary shall (a) give notice
thereof to Holders of Partial Entitlement ADSs and give Holders of Partial
Entitlement ADRs the opportunity to exchange such Partial Entitlement ADRs for
Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Shares into the account of the Full Entitlement Shares, and
(c) take such actions as are necessary to remove the distinctions between
(i) the Partial Entitlement ADRs and ADSs, on the one hand, and
(ii) the Full Entitlement ADRs and ADSs on the other. Holders
and Beneficial Owners of Partial Entitlement ADSs shall only be entitled to the
entitlements of Partial Entitlement Shares. Holders and Beneficial
Owners of Full Entitlement ADSs shall be entitled only to the entitlements of
Full Entitlement Shares. All provisions and conditions of the Deposit
Agreement shall apply to Partial Entitlement ADRs and ADSs to the same extent as
Full Entitlement ADRs and ADSs, except as contemplated by this
Section 2.12. The Depositary is authorized to take any and all
other actions as may be necessary (including, without limitation, making the
necessary notations on ADRs) to give effect to the terms of this
Section 2.12. The Company agrees to give timely written notice
to the Depositary if any Shares issued or to be issued are Partial Entitlement
Shares and shall assist the Depositary with the establishment of procedures
enabling the identification of Partial Entitlement Shares upon Delivery to the
Custodian.
17
Section
2.13 Certificated/Uncertificated
ADSs. Notwithstanding
any other provision of the Deposit Agreement, the Depositary may, at any time
and from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
“Uncertificated
ADS(s)” and the ADS(s) evidenced by ADR(s), the “Certificated
ADS(s)”). When issuing and maintaining Uncertificated ADS(s)
under the Deposit Agreement, the Depositary shall at all times be subject to
(i) the standards applicable to registrars and transfer agents maintaining
direct registration systems for equity securities in New York and issuing
uncertificated securities under New York law, and (ii) the terms of New
York law applicable to uncertificated equity
securities. Uncertificated ADSs shall not be represented by any
instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated
ADSs, that are not subject to any registered pledges, liens, restrictions or
adverse claims of which the Depositary has notice at such time, shall at all
times have the right to exchange the Uncertificated ADS(s) for Certificated
ADS(s) of the same type and class, subject in each case to applicable laws and
any rules and regulations the Depositary may have established in respect of the
Uncertificated ADSs. Holders of Certificated ADSs shall, if the
Depositary maintains a direct registration system for the ADSs, have the right
to exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due
surrender of the Certificated ADS(s) to the Depositary for such purpose and (ii)
the presentation of a written request to that effect to the Depositary, subject
in each case to (a) all liens and restrictions noted on the ADR evidencing the
Certificated ADS(s) and all adverse claims of which the Depositary then has
notice, (b) the terms of the Deposit Agreement and the rules and regulations
that the Depositary may establish for such purposes hereunder,
(c) applicable law, and (d) payment of the Depositary fees and
expenses applicable to such exchange of Certificated ADS(s) for Uncertificated
ADS(s). Uncertificated ADSs shall in all respects be identical to
Certificated ADS(s) of the same type and class, except that (i) no ADR(s)
shall be, or shall need to be, issued to evidence Uncertificated ADS(s),
(ii) Uncertificated ADS(s) shall, subject to the terms of the Deposit
Agreement, be transferable upon the same terms and conditions as uncertificated
securities under New York law, (iii) the ownership of Uncertificated ADS(s)
shall be recorded on the books of the Depositary maintained for such purpose and
evidence of such ownership shall be reflected in periodic statements provided by
the Depositary to the Holder(s) in accordance with applicable New York law,
(iv) the Depositary may from time to time, upon notice to the Holders of
Uncertificated ADSs affected thereby, establish rules and regulations, and amend
or supplement existing rules and regulations, as may be deemed reasonably
necessary to maintain Uncertificated ADS(s) on behalf of Holders, provided that
(a) such rules and regulations do not conflict with the terms of the
Deposit Agreement and applicable law, and (b) the terms of such rules and
regulations are readily available to Holders upon request, (v) the
Uncertificated ADS(s) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless such Uncertificated ADS(s) is/are registered on the books of
the Depositary maintained for such purpose, (vi) the Depositary may, in
connection with any deposit of Shares resulting in the issuance of
Uncertificated ADSs and with any transfer, pledge, release and cancellation of
Uncertificated ADSs, require the prior receipt of such documentation as the
Depositary may deem reasonably appropriate, and (vii) upon termination of
the Deposit Agreement, the Depositary shall not require Holders of
Uncertificated ADSs to affirmatively instruct the Depositary before remitting
proceeds from the sale of the Deposited Securities represented by such Holders'
Uncertificated ADSs under the terms of Section 6.2 of the Deposit
Agreement. When issuing ADSs under the terms of the Deposit
Agreement, including, without limitation, issuances pursuant to Sections 2.5,
4.2, 4.3, 4.4, 4.5 and 4.11, the Depositary may in its discretion determine to
issue Uncertificated ADSs rather than Certificated ADSs, unless otherwise
specifically instructed by the applicable Holder to issue Certificated
ADSs. All provisions and conditions of the Deposit Agreement shall
apply to Uncertificated ADSs to the same extent as to Certificated ADSs, except
as contemplated by this Section 2.13. The Depositary is authorized
and directed to take any and all actions and establish any and all procedures
deemed reasonably necessary to give effect to the terms of this Section
2.13. Any references in the Deposit Agreement or any ADR(s) to the
terms “American Depositary Share(s)” or “ADS(s)” shall, unless the context
otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.13 and except as
required by applicable law, the Uncertificated ADSs shall be treated as ADSs
issued and outstanding under the terms of the Deposit Agreement. In
the event that, in determining the rights and obligations of parties hereto with
respect to any Uncertificated ADSs, any conflict arises between (a) the terms of
the Deposit Agreement (other than this Section 2.13) and (b) the terms of this
Section 2.13, the terms and conditions set forth in this Section 2.13 shall be
controlling and shall govern the rights and obligations of the parties to the
Deposit Agreement pertaining to the Uncertificated ADSs.
18
Section
2.14 Restricted
ADSs. The
Depositary shall, at the request and expense of the Company, establish
procedures enabling the deposit hereunder of Shares that are Restricted
Securities in order to enable the holder of such Shares to hold its ownership
interests in such Restricted Shares in the form of ADSs issued under the terms
hereof (such Shares, “Restricted
Shares”). Upon receipt of a written request from the Company
to accept Restricted Shares for deposit hereunder, the Depositary agrees to
establish procedures permitting the deposit of such Restricted Shares and the
issuance of ADSs representing the right to receive, subject to the terms of the
Deposit Agreement and the applicable ADR (if issued as a Certificated ADS), such
deposited Restricted Shares (such ADSs, the “Restricted ADSs,” and
the ADRs evidencing such Restricted ADSs, the “Restricted
ADRs”). Notwithstanding anything contained in this Section
2.14, the Depositary and the Company may, to the extent not prohibited by law,
agree to issue the Restricted ADSs in Uncertificated form (“Uncertificated Restricted
ADSs”) upon such terms and conditions as the Company and the Depositary
may deem necessary and appropriate. The Company shall assist the
Depositary in the establishment of such procedures and agrees that it shall take
all steps necessary and satisfactory to the Depositary to insure that the
establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such
Restricted Shares and the holders of the Restricted ADSs may be required prior
to the deposit of such Restricted Shares, the transfer of the Restricted ADRs
and the Restricted ADSs evidenced thereby or the withdrawal of the Restricted
Shares represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company
shall provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs (if the Restricted ADSs are to be issued as Certificated ADSs),
or to be included in the statements issued from time to time to Holders of
Uncertificated ADSs (if issued as Uncertificated Restricted ADSs), which legends
shall (i) be in a form satisfactory to the Depositary and (ii) contain the
specific circumstances under which the Restricted ADSs, and, if applicable, the
Restricted ADRs evidencing the Restricted ADSs may be transferred or the
Restricted Shares withdrawn. The Restricted ADSs issued upon the
deposit of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall, to the extent required
by law, be held separate and distinct from the other Deposited Securities held
hereunder. The Restricted Shares and the Restricted ADSs shall not be
eligible for Pre-Release Transactions or Pre-Cancellation
Transactions. The Restricted ADSs shall not be eligible for inclusion
in any book-entry settlement system, including, without limitation, DTC, and
shall not in any way be fungible with the ADSs issued under the terms hereof
that are not Restricted ADSs. The Restricted ADSs, and, if
applicable, the Restricted ADRs evidencing the Restricted ADSs shall be
transferable only by the Holder thereof upon delivery to the Depositary of (i)
all documentation otherwise contemplated by the Deposit Agreement and (ii) an
opinion of counsel satisfactory to the Depositary setting forth, inter alia, the conditions
upon which the Restricted ADSs presented, and, if applicable, the Restricted
ADRs evidencing the Restricted ADSs are transferable by the Holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
applicable to the Restricted ADSs presented for transfer. Except as
set forth in this Section 2.14 and except as required by applicable law, the
Restricted ADRs and the Restricted ADSs evidenced thereby shall be treated as
ADRs and ADSs issued and outstanding under the terms of the Deposit
Agreement. In the event that, in determining the rights and
obligations of parties hereto with respect to any Restricted ADSs, any conflict
arises between (a) the terms of the Deposit Agreement (other than this Section
2.14) and (b) the terms of (i) this Section 2.14 or (ii) the applicable
Restricted ADR, the terms and conditions set forth in this Section 2.14 and of
the Restricted ADR shall be controlling and shall govern the rights and
obligations of the parties to the Deposit Agreement pertaining to the deposited
Restricted Shares, the Restricted ADSs and Restricted ADRs.
19
If the Restricted ADRs, the Restricted
ADSs and the Restricted Shares cease to be Restricted Securities, the
Depositary, upon receipt of (x) an opinion of counsel satisfactory to the
Depositary setting forth, inter alia, that the
Restricted ADRs, the Restricted ADSs and the Restricted Shares are not as of
such time Restricted Securities, and (y) instructions from the Company to remove
the restrictions applicable to the Restricted ADRs, the Restricted ADSs and the
Restricted Shares, shall (i) eliminate the distinctions and separations
that may have been established between the applicable Restricted Shares held on
deposit under this Section 2.14 and the other Shares held on deposit under the
terms of the Deposit Agreement that are not Restricted Shares, (ii) treat
the newly unrestricted ADRs and ADSs on the same terms as, and fully fungible
with, the other ADRs and ADSs issued and outstanding under the terms of the
Deposit Agreement that are not Restricted ADRs or Restricted ADSs,
(iii) take all actions necessary to remove any distinctions, limitations
and restrictions previously existing under this Section 2.14 between the
applicable Restricted ADRs and Restricted ADSs, respectively, on the one hand,
and the other ADRs and ADSs that are not Restricted ADRs or Restricted ADSs,
respectively, on the other hand, including, without limitation, by making the
newly-unrestricted ADSs eligible for Pre-Release Transactions and for inclusion
in the applicable book-entry settlement systems.
20
ARTICLE
III
CERTAIN
OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF ADSs
Section
3.1 Proofs, Certificates and
Other Information. Any
person presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Share Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement
and the applicable ADR(s). The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer
of any ADR or ADS or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by the terms of
Section 7.8, the delivery of any Deposited Securities until such proof or other
information is filed or such certifications are executed, or such
representations are made, or such other documentation or information provided,
in each case to the Depositary’s, the Registrar’s and the Company’s
satisfaction. The Depositary shall provide the Company, in a timely
manner, with copies or originals if necessary and appropriate of (i) any such
proofs of citizenship or residence, taxpayer status, or exchange control
approval or copies of written representations and warranties which it receives
from Holders and Beneficial Owners, and (ii) any other information or documents
which the Company may reasonably request and which the Depositary shall request
and receive from any Holder or Beneficial Owner or any person presenting Shares
for deposit or ADSs for cancellation, transfer or withdrawal. Nothing
herein shall obligate the Depositary to (i) obtain any information for the
Company if not provided by the Holders or Beneficial Owners, or (ii) verify or
vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
Section
3.2 Liability for Taxes and
Other Charges. Any
tax or other governmental charge payable by the Custodian or by the Depositary
with respect to any ADR or any Deposited Securities or ADSs shall be payable by
the Holders and Beneficial Owners to the Depositary. The
Company, the Custodian and/or the Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell in a riskless
principal capacity in a public sale or if no public market is available, in a
private sale, for the account of a Holder and/or Beneficial Owner any or all of
the Deposited Securities and apply such distributions and sale proceeds in
payment of any taxes (including applicable interest and penalties) or charges
that are or may be payable by Holders or Beneficial Owners in respect of the
ADSs, Deposited Securities and ADRs, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the
deposit of Shares and the Depositary may refuse to issue ADSs, to deliver ADRs,
register the transfer of ADSs, register the split-up or combination of ADRs and
(subject to Section 7.8) the withdrawal of Deposited Securities until payment in
full of such tax, charge, penalty or interest is received. Every
Holder and Beneficial Owner agrees to indemnify the Depositary, the Company, the
Custodian, and any of their respective agents, officers, directors, employees
and Affiliates for, and to hold each of them harmless from, any claims with
respect to taxes (including applicable interest and penalties thereon) arising
from any tax benefit obtained for such Holder and/or Beneficial
Owner.
21
Section
3.3 Representations and
Warranties on Deposit of Shares. Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with respect
to such Shares have been validly waived or exercised, (iii) the person making
such deposit is duly authorized so to do, (iv) the Shares presented for deposit
are free and clear of any lien, encumbrance, security interest, charge, mortgage
or adverse claim, and (v) the Shares presented for deposit are not, and the ADSs
issuable upon such deposit will not be, Restricted Securities (except as
contemplated in Section 2.14), and (vi) the Shares presented for deposit
have not been stripped of any rights or entitlements. Such
representations and warranties shall survive the deposit and withdrawal of
Shares, the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If any such representations or warranties are
false in any way, the Company and the Depositary shall be authorized, at the
cost and expense of the person depositing Shares, to take any and all actions
necessary to correct the consequences thereof.
Section
3.4 Compliance with Information
Requests. Notwithstanding
any other provision of the Deposit Agreement or any ADR(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable law, the rules and requirements of the [Nasdaq Global Select Market],
and any other stock exchange on which the Shares or ADSs are, or will be,
registered, traded or listed or the Articles of Association of the Company,
which are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and Shares as the
case may be) and regarding the identity of any other person(s) interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such
request. The Depositary agrees to use its reasonable efforts to
forward, upon the request of the Company and at the Company’s expense, any such
request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
Section
3.5 Ownership
Restrictions. Notwithstanding
any other provision in the Deposit Agreement or any ADR, the Company may
restrict transfers of the Shares where such transfer might result in ownership
of Shares exceeding limits imposed by applicable law or the Articles of
Association of the Company. The Company may also restrict, in such
manner as it deems appropriate, transfers of the ADSs where such transfer may
result in the total number of Shares represented by the ADSs owned by a single
Holder or Beneficial Owner to exceed any such limits. The Company
may, in its sole discretion but subject to applicable law, instruct the
Depositary to take action with respect to the ownership interest of any Holder
or Beneficial Owner in excess of the limits set forth in the preceding sentence,
including, but not limited to, the imposition of restrictions on the transfer of
ADSs, the removal or limitation of voting rights or mandatory sale or
disposition on behalf of a Holder or Beneficial Owner of the Shares represented
by the ADSs held by such Holder or Beneficial Owner in excess of such
limitations, if and to the extent such disposition is permitted by applicable
law and the Articles of Association of the Company. Nothing herein
shall be interpreted as obligating the Depositary or the Company to ensure
compliance with the ownership restrictions described in this Section
3.5.
22
Section
3.6 Reporting Obligations and
Regulatory Approvals. Applicable
laws and regulations may require holders and beneficial owners of Shares,
including the Holders and Beneficial Owners of ADSs, to satisfy reporting
requirements and obtain regulatory approvals in certain
circumstances. Holders and Beneficial Owners of ADSs are solely
responsible for determining and complying with such reporting requirements and
obtaining such approvals. Each Holder and each Beneficial Owner
hereby agrees to make such determination, file such reports, and obtain such
approvals to the extent and in the form required by applicable laws and
regulations as in effect from time to time. Neither the Depositary,
the Custodian, the Company or any of their respective agents or affiliates shall
be required to take any actions whatsoever on behalf of Holders or Beneficial
Owners to determine or satisfy such reporting requirements or obtain such
regulatory approvals under applicable laws and regulations.
ARTICLE
IV
THE
DEPOSITED SECURITIES
Section
4.1 Cash
Distributions. Whenever
the Company intends to make a distribution of a cash dividend or other cash
distribution, the Company shall give notice thereof to the Depositary at least
twenty (20) days prior to the proposed distribution specifying, inter alia, the record date
applicable for determining the holders of Deposited Securities entitled to
receive such distribution. Upon the timely receipt of such notice,
the Depositary shall establish an ADS Record Date upon the terms described in
Section 4.9. Upon receipt of confirmation from the Custodian of the
receipt of any cash dividend or other cash distribution on any Deposited
Securities, or upon receipt of proceeds from the sale of any Deposited
Securities or any other entitlements held in respect of Deposited Securities
under the terms hereof, the Depositary will (i) if at the time of receipt
thereof any amounts received in a Foreign Currency can, in the judgment of the
Depositary (pursuant to Section 4.8), be converted on a practicable basis into
Dollars transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (on the
terms described in Section 4.8), (ii) if applicable and unless previously
established, establish the ADS Record Date upon the terms described in Section
4.9, and (iii) distribute promptly the amount thus received (net of (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes withheld) to the Holders entitled thereto as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date. The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs outstanding at the time of the
next distribution. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company,
the Custodian or the Depositary to the relevant governmental
authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
23
Section
4.2 Distribution in
Shares. Whenever
the Company intends to make a distribution that consists of a dividend in, or
free distribution of, Shares, the Company shall give notice thereof to the
Depositary at least twenty (20) days prior to the proposed distribution,
specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such
distribution. Upon the timely receipt of such notice from the
Company, the Depositary shall establish the ADS Record Date upon the terms
described in Section 4.9. Upon receipt of confirmation from the
Custodian of the receipt of the Shares so distributed by the Company, the
Depositary shall either (i) subject to Section 5.9, distribute to the Holders as
of the ADS Record Date in proportion to the number of ADSs held as of the ADS
Record Date, additional ADSs, which represent in the aggregate the number of
Shares received as such dividend, or free distribution, subject to the other
terms of the Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and expenses incurred by, the Depositary and (b)
taxes), or (ii) if additional ADSs are not so distributed, take all actions
necessary so that each ADS issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and
interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (net of (a) the applicable fees and
charges of, and expenses incurred by, the Depositary and (b)
taxes). In lieu of delivering fractional ADSs, the Depositary shall
sell the number of Shares or ADSs, as the case may be, represented by the
aggregate of such fractions, in a riskless principal capacity in a public sale
or if no public market is available, in a private sale, and distribute the net
proceeds upon the terms described in Section 4.1. In the event that
the Depositary determines that any distribution in property (including Shares)
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, if the Company in the fulfillment of its obligation
under Section 5.7, has furnished an opinion of U.S. counsel determining that
Shares must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective), the Depositary may dispose of all or a portion of such property
(including Shares and rights to subscribe therefor) in such amounts and in such
manner, including by public or private sale, as the Depositary deems necessary
and practicable, and the Depositary shall distribute the net proceeds of any
such sale (after deduction of (a) taxes and (b) reasonable fees and charges of,
and expenses incurred by, the Depositary) to Holders entitled thereto upon the
terms described in Section 4.1. The Depositary shall hold and/or
distribute any unsold balance of such property in accordance with the provisions
of the Deposit Agreement.
Section
4.3 Elective Distributions in
Cash or Shares. Whenever
the Company intends to make a distribution payable at the election of the
holders of Shares in cash or in additional Shares, the Company shall give notice
thereof to the Depositary at least sixty (60) days prior to the proposed
distribution specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such elective
distribution and whether or not it wishes such elective distribution to be made
available to Holders of ADSs. Upon the timely receipt of a notice
indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall
make such elective distribution available to Holders only if (i) the Company
shall have timely requested that the elective distribution be made available to
Holders, (ii) the Depositary shall have determined that such distribution
is reasonably practicable and (iii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall establish an ADS Record
Date on the terms described in Section 4.9 and, to the extent permitted by law,
distribute to the Holders, on the basis of the same determination as is made in
the Cayman Islands in respect of the Shares for which no election is made,
either (X) cash upon the terms described in Section 4.1 or (Y) additional ADSs
representing such additional Shares upon the terms described in Section
4.2. If the above conditions are satisfied, the Depositary shall
establish an ADS Record Date on the terms described in Section 4.9 and establish
procedures to enable Holders to elect the receipt of the proposed distribution
in cash or in additional ADSs. The Company shall assist the
Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed distribution
(X) in cash, the distribution shall be made upon the terms described in Section
4.1, or (Y) in ADSs, the distribution shall be made upon the terms
described in Section 4.2. Nothing herein shall obligate the
Depositary to make available to Holders a method to receive the elective
distribution in Shares (rather than ADSs). There can be no assurance
that Holders generally, or any Holder in particular, will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Shares.
24
Section
4.4 Distribution of Rights to
Purchase Additional ADSs.
(a) Distribution
to ADS Holders. Whenever the
Company intends to distribute to the holders of the Deposited Securities rights
to subscribe for additional Shares, the Company shall give notice thereof to the
Depositary at least
sixty (60) days prior to the proposed distribution specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such
distribution and whether or not it wishes such rights to be made available to
Holders of ADSs. Upon the timely receipt of a notice indicating that
the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The
Depositary shall make such rights available to Holders only if (i) the Company
shall have timely requested that such rights be made available to Holders, (ii)
the Depositary shall have received satisfactory documentation within the terms
of Section 5.7, and (iii) the Depositary shall have determined that such
distribution of rights is reasonably practicable. In the event any of
the conditions set forth above are not satisfied or if the Company requests that
the rights not be made available to Holders of ADSs, the Depositary shall
proceed with the sale of the rights as contemplated in Section 4.4(b)
below. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.9) and establish procedures to (x) distribute rights to purchase
additional ADSs (by means of warrants or otherwise), (y) to enable the
Holders to exercise such rights (upon payment of the subscription price and of
the applicable (a) fees and charges of, and expenses incurred by, the Depositary
and (b) taxes), and (z) to deliver ADSs upon the valid exercise of such
rights. The Company shall assist the Depositary to the extent
necessary in establishing such procedures. Nothing herein shall
obligate the Depositary to make available to the Holders a method to exercise
rights to subscribe for Shares (rather than ADSs).
25
(b) Sale of
Rights. If (i) the
Company does not timely request the Depositary to make the rights available to
Holders or requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive satisfactory documentation within the terms of
Section 5.7 or determines it is not reasonably practicable to make the rights
available to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall determine whether it is lawful
and reasonably practicable to sell such rights, in a riskless principal
capacity, at such place and upon such terms (including public or private sale)
as it may deem practicable. The Company shall assist the Depositary
to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in
Section 4.1.
(c) Lapse of
Rights. If the Depositary
is unable to make any rights available to Holders upon the terms described in
Section 4.4(a) or to arrange for the sale of the rights upon the terms described
in Section 4.4(b), the Depositary shall allow such rights to lapse.
The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or practicable to make such rights available to Holders in general or
any Holders in particular, (ii) any foreign exchange exposure or loss incurred
in connection with such sale, or exercise, or (iii) the content of any materials
forwarded to the Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding
anything to the contrary in this Section 4.4, if registration (under the
Securities Act or any other applicable law) of the rights or the securities to
which any rights relate may be required in order for the Company to offer such
rights or such securities to Holders and to sell the securities represented by
such rights, the Depositary will not distribute such rights to the Holders
(i) unless and until a registration statement under the Securities Act (or
other applicable law) covering such offering is in effect or (ii) unless
the Company furnishes the Depositary opinion(s) of counsel for the Company in
the United States and counsel to the Company in any other applicable country in
which rights would be distributed, in each case satisfactory to the Depositary,
to the effect that the offering and sale of such securities to Holders and
Beneficial Owners are exempt from, or do not require registration under, the
provisions of the Securities Act or any other applicable laws. A
liquid market for rights may not exist, and this may adversely affect (1) the
ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
In the
event that the Company, the Depositary or the Custodian shall be required to
withhold and does withhold from any distribution of property (including rights)
an amount on account of taxes or other governmental charges, the amount
distributed to the Holders of ADSs representing such Deposited Securities shall
be reduced accordingly. In the event that the Depositary determines
that any distribution in property (including Shares and rights to subscribe
therefor) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, the Depositary may dispose of all or a
portion of such property (including Shares and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or
charges.
26
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive or exercise rights on the same terms and
conditions as the holders of Shares or be able to exercise such
rights. Nothing herein shall obligate the Company to file any
registration statement in respect of any rights or Shares or other securities to
be acquired upon the exercise of such rights.
Section
4.5 Distributions Other Than
Cash, Shares or Rights to Purchase Shares.
(a) Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes
such distribution be made to Holders of ADSs, the Depositary shall consult with
the Company, and the Company shall assist the Depositary, to determine whether
such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7, and (iii) the Depositary shall have determined
that such distribution is reasonably practicable.
(b) Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
(c) If
(i) the Company does not request the Depositary to make such distribution to
Holders or requests not to make such distribution to Holders, (ii) the
Depositary does not receive satisfactory documentation within the terms of
Section 5.7, or (iii) the Depositary determines that all or a portion of such
distribution is not reasonably practicable, the Depositary shall sell or cause
such property to be sold in a public or private sale, at such place or places
and upon such terms as it may deem practicable and shall (i) cause the proceeds
of such sale, if any, to be converted into Dollars and (ii) distribute the
proceeds of such conversion received by the Depositary (net of applicable (a)
fees and charges of, and expenses incurred by, the Depositary and (b) taxes) to
the Holders as of the ADS Record Date upon the terms of Section
4.1. If the Depositary is unable to sell such property, the
Depositary may dispose of such property for the account of the Holders in any
way it deems reasonably practicable under the circumstances.
27
Section
4.6 Distributions with Respect
to Deposited Securities in Bearer Form. Subject
to the terms of this Article IV, distributions in respect of Deposited
Securities that are held by the Depositary in bearer form shall be made to the
Depositary for the account of the respective Holders of ADS(s) with respect to
which any such distribution is made upon due presentation by the Depositary or
the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of
such distributions. The Depositary or the Custodian shall promptly
present such coupons, talons or certificates, as the case may be, in connection
with any such distribution.
Section
4.7 Redemption. If
the Company intends to exercise any right of redemption in respect of any of the
Deposited Securities, the Company shall give notice thereof to the Depositary at
least sixty (60) days prior to the intended date of redemption which notice
shall set forth the particulars of the proposed redemption. Upon
timely receipt of (i) such notice and (ii) satisfactory documentation given
by the Company to the Depositary within the terms of Section 5.7, and only if
the Depositary shall have determined that such proposed redemption is
practicable, the Depositary shall provide to each Holder a notice setting forth
the intended exercise by the Company of the redemption rights and any other
particulars set forth in the Company’s notice to the Depositary. The
Depositary shall instruct the Custodian to present to the Company the Deposited
Securities in respect of which redemption rights are being exercised against
payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders
thereof and the terms set forth in Sections 4.1 and 6.2. If less than
all outstanding Deposited Securities are redeemed, the ADSs to be retired will
be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar
equivalent of the per share amount received by the Depositary (adjusted to
reflect the ADS(s)-to-Share(s) ratio) upon the redemption of the Deposited
Securities represented by ADSs (subject to the terms of Section 4.8 and the
applicable reasonable fees and charges of, and expenses incurred by, the
Depositary, and taxes) multiplied by the number of Deposited Securities
represented by each ADS redeemed.
Section
4.8 Conversion of Foreign
Currency. Whenever
the Depositary or the Custodian shall receive Foreign Currency, by way of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, which in the judgment of the Depositary can at
such time be converted on a practicable basis, by sale or in any other manner
that it may determine in accordance with applicable law, into Dollars
transferable to the United States and distributable to the Holders entitled
thereto, 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
shall distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses incurred in such conversion and any expenses incurred on
behalf of the Holders in complying with currency exchange control or other
governmental requirements) in accordance with the terms of the applicable
sections of the Deposit Agreement. If the Depositary shall have
distributed warrants or other instruments that entitle the holders thereof to
such Dollars, the Depositary shall distribute such Dollars to the holders of
such warrants and/or instruments upon surrender thereof for cancellation, in
either case without liability for interest thereon. Such distribution
may be made upon an averaged or other practicable basis without regard to any
distinctions among Holders on account of any application of exchange
restrictions or otherwise.
28
If such
conversion or distribution generally or with regard to a particular Holder can
be effected only with the approval or license of any government or agency
thereof, the Depositary shall have authority to file such application for
approval or license, if any, as it may deem desirable. In no event,
however, shall the Depositary be obligated to make such a filing.
If at any
time the Depositary shall determine that in its judgment the conversion of any
Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practicable or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the
Foreign Currency (or an appropriate document evidencing the right to receive
such Foreign Currency) to Holders for whom this is lawful and practicable or
(iii) hold (or cause the Custodian to hold) such Foreign Currency (without
liability for interest thereon) for the respective accounts of the Holders
entitled to receive the same.
Section
4.9 Fixing of ADS Record
Date. Whenever
the Depositary shall receive notice of the fixing of a record date by the
Company for the determination of holders of Deposited Securities entitled to
receive any distribution (whether in cash, Shares, rights, or other
distribution), or whenever for any reason the Depositary causes a change in the
number of Shares that are represented by each ADS, or whenever the Depositary
shall receive notice of any meeting of, or solicitation of consents or proxies
of, holders of Shares or other Deposited Securities, or whenever the Depositary
shall find it necessary or convenient in connection with the giving of any
notice, solicitation of any consent or any other matter, the Depositary shall
fix a record date (the “ADS Record Date”) for
the determination of the Holders of ADS(s) who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Shares represented by each
ADS. The Depositary shall make reasonable efforts to establish the
ADS Record Date as closely as possible to the applicable record date for the
Deposited Securities (if any) set by the Company in the Cayman
Islands. Subject to applicable law and the provisions of Section 4.1
through 4.8 and to the other terms and conditions of the Deposit Agreement, only
the Holders of ADSs at the close of business in New York on such ADS Record Date
shall be entitled to receive such distribution, to give such voting
instructions, to receive such notice or solicitation, or otherwise take
action.
Section
4.10 Voting of Deposited
Securities. As
soon as practicable after receipt of notice of any meeting at which the holders
of Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section 4.9. The Depositary shall, if requested by
the Company in writing in a timely manner (the Depositary having no obligation
to take any further action if the request shall not have been received by the
Depositary at least thirty (30) days prior to the date of such vote or meeting),
at the Company’s expense and provided no U.S. legal prohibitions exist,
distribute to Holders as of the ADS Record Date: (a) such notice of meeting or
solicitation of consent or proxy, (b) a statement that the Holders at the close
of business on the ADS Record Date will be entitled, subject to any applicable
law, the provisions of the Deposit Agreement, the Articles of Association of the
Company and the provisions of or governing the Deposited Securities (which
provisions, if any, shall be summarized in pertinent part by the Company), to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Deposited Securities represented by such Holder’s ADSs, and
(c) a brief statement as to the manner in which such voting instructions may be
given to the Depositary or in which voting instructions may be deemed to have
been given in accordance with this Section 4.10 if no instructions are received
prior to the deadline set for such purposes to the Depositary to give a
discretionary proxy to a person designated by the Company.
29
Notwithstanding anything contained in
the Deposit Agreement or any ADR, the Depositary may, to the extent not
prohibited by law or regulations, or by the requirements of the stock exchange
on which the ADSs are listed, in lieu of distribution of the materials provided
to the Depositary in connection with any meeting of, or solicitation of consents
or proxies from, holders of Deposited Securities, distribute to the Holders a
notice that provides Holders with, or otherwise publicize to Holders,
instructions on how to retrieve such materials or receive such materials upon
request (i.e., by
reference to a website containing the materials for retrieval or a contact for
requesting copies of the materials).
The
Depositary has been advised by the Company that under the Cayman Islands law as
in effect as of the date of the Deposit Agreement, voting at any meeting of
shareholders is by show of hands unless a poll is demanded. The
Depositary will not join in demanding a poll, whether or not requested to do so
by Holders of ADSs. The Company has informed the Depositary that
under the Articles of Association of the Company (as in effect on the date of
the Deposit Agreement) a poll may be demanded by (i) the chairman of the
meeting, (ii) at least three shareholders present in person or in the case of a
shareholder being a corporation by its duly authorized representative or by
proxy for the time being entitled to vote at the meeting, (iii) any shareholder
or shareholders present in person or in the case of a shareholder being a
corporation by its duly authorized representative or by proxy and representing
not less than one-tenth of the total voting rights of all shareholders having
the right to vote at the meeting, (iv) by a shareholder or shareholders present
in person or in the case of a shareholder being a corporation by its duly
authorized representative or by proxy and holding Shares in the Company
conferring a right to vote at a meeting being Shares on which an aggregate sum
has been paid up equal to not less than one-tenth of the total sum paid on all
shares conferring that right, or (v) if required by the rules of the [Nasdaq
Global Select Market], by any director or directors of the Company who,
individually or collectively, hold proxies in respect of Shares representing 5%
or more of the total voting rights at such meeting.
Voting instructions may be given only
in respect of a number of ADSs representing an integral number of Deposited
Securities. Upon the timely receipt from a Holder of ADSs as of the
ADS Record Date of voting instructions in the manner specified by the
Depositary, the Depositary shall endeavor, insofar as practicable and permitted
under applicable law, the provisions of the Deposit Agreement, Articles of
Association of the Company and the provisions of the Deposited Securities, to
vote, or cause the Custodian to vote, the Deposited Securities (in person or by
proxy) represented by such Holder’s ADSs as follows: In the event
voting takes place at a shareholders’ meeting by show of hands, the Depositary
will instruct the Custodian to vote all Deposited Securities in accordance with
the voting instructions received from a majority of Holders of ADSs who provided
voting instructions. In the event voting takes place at a
shareholders’ meeting by poll, the Depositary will instruct the Custodian to
vote the Deposited Securities in accordance with the voting instructions
received from the Holders of ADSs.
30
If
voting is by poll and the Depositary does not receive voting instructions from a
Holder as of the ADS Record Date on or before the date established by the
Depositary for such purpose, such Holder shall be deemed, and the Depositary
shall deem such Holder, to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company to vote the Deposited
Securities; provided, however, that no such discretionary proxy shall be given
by the Depositary with respect to any matter to be voted upon as to which the
Company informs the Depositary that (i) the Company does not wish such proxy to
be given, (ii) substantial opposition exists, or (iii) the rights of holders of
Deposited Securities may be adversely affected.
Neither the Depositary nor the
Custodian shall under any circumstances exercise any discretion as to voting and
neither the Depositary nor the Custodian shall vote, attempt to exercise the
right to vote, or in any way make use of for purposes of establishing a quorum
or otherwise, the Deposited Securities represented by ADSs, except pursuant to
and in accordance with the voting instructions timely received from Holders or
as otherwise contemplated herein. If the Depositary timely receives
voting instructions from a Holder which fail to specify the manner in which the
Depositary is to vote the Deposited Securities represented by such Holder’s
ADSs, the Depositary will deem such Holder (unless otherwise specified in the
notice distributed to Holders) to have instructed the Depositary to vote in
favor of the items set forth in such voting instructions. Deposited
Securities represented by ADSs for which no timely voting instructions are
received by the Depositary from the Holder shall not be voted (except (i) in the
case voting is by show of hands, in which case the Depositary will instruct the
Custodian to vote all Deposited Securities in accordance with the voting
instructions received from a majority of Holders of ADSs who provided voting
instructions and (ii) as contemplated in this Section
4.10). Notwithstanding anything else contained herein, the Depositary
shall, if so requested in writing by the Company, represent all Deposited
Securities (whether or not voting instructions have been received in respect of
such Deposited Securities from Holders as of the ADS Record Date) for the sole
purpose of establishing quorum at a meeting of shareholders.
Notwithstanding anything else contained
in the Deposit Agreement or any ADR, the Depositary shall not have any
obligation to take any action with respect to any meeting, or solicitation of
consents or proxies, of holders of Deposited Securities if the taking of such
action would violate U.S. laws. The Company agrees to take any and
all actions reasonably necessary to enable Holders and Beneficial Owners to
exercise the voting rights accruing to the Deposited Securities and to deliver
to the Depositary an opinion of U.S. counsel addressing any actions requested to
be taken if so requested by the Depositary.
There can be no assurance that Holders
generally or any Holder in particular will receive the notice described above
with sufficient time to enable the Holder to return voting instructions to the
Depositary in a timely manner.
31
Section
4.11 Changes Affecting Deposited
Securities. Upon
any change in nominal or par value, split-up, cancellation, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, consolidation or sale of assets affecting the Company or
to which it is a party, any securities which shall be received by the Depositary
or the Custodian in exchange for, or in conversion of or replacement of or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. In giving effect to such change,
split-up, cancellation, consolidation or other reclassification of Deposited
Securities, recapitalization, reorganization, merger, consolidation or sale of
assets, the Depositary may, with the Company’s approval, and shall, if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company satisfactory to the Depositary
that such actions are not in violation of any applicable laws or regulations,
(i) issue and deliver additional ADSs as in the case of a stock dividend on
the Shares, (ii) amend the Deposit Agreement and the applicable ADRs,
(iii) amend the applicable Registration Statement(s) on Form F-6 as filed
with the Commission in respect of the ADSs, (iv) call for the surrender of
outstanding ADRs to be exchanged for new ADRs, and (v) take such other
actions as are appropriate to reflect the transaction with respect to the
ADSs. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of ADRs. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some
or all Holders, the Depositary may, with the Company’s approval, and shall, if
the Company requests, subject to receipt of an opinion of Company’s counsel
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) reasonable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes) for the account of
the Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or practicable to make such securities available to Holders in general
or to any Holder in particular, (ii) any foreign exchange exposure or loss
incurred in connection with such sale, or (iii) any liability to the purchaser
of such securities.
Section
4.12 Available
Information. The
Company is subject to the periodic reporting requirements of the Exchange Act
and, accordingly, is required to file or submit certain reports with the
Commission. These reports can be retrieved from the Commission's
website (www.sec.gov) and can be inspected and copied at the public reference
facilities maintained by the Commission located (as of the date of the Deposit
Agreement) at 100 F Street, N.E., Washington D.C. 20549.
Section
4.13 Reports. The
Depositary shall make available for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Depositary shall also provide or make
available to Holders copies of such reports when furnished by the Company
pursuant to Section 5.6.
32
Section
4.14 List of
Holders. Promptly
upon written request by the Company, the Depositary shall furnish to it a list,
as of a recent date, of the names, addresses and holdings of ADSs of all
Holders.
Section
4.15 Taxation. The
Depositary will, and will instruct the Custodian to, forward to the Company or
its agents such information from its records as the Company may reasonably
request to enable the Company or its agents to file the necessary tax reports
with governmental authorities or agencies. The Depositary, the
Custodian or the Company and its agents may file such reports as are necessary
to reduce or eliminate applicable taxes on dividends and on other distributions
in respect of Deposited Securities under applicable tax treaties or laws for the
Holders and Beneficial Owners. In accordance with instructions from
the Company and to the extent practicable, the Depositary or the Custodian will
take reasonable administrative actions to obtain tax refunds, reduced
withholding of tax at source on dividends and other benefits under applicable
tax treaties or laws with respect to dividends and other distributions on the
Deposited Securities. As a condition to receiving such benefits,
Holders and Beneficial Owners of ADSs may be required from time to time, and in
a timely manner, to file such proof of taxpayer status, residence and beneficial
ownership (as applicable), to execute such certificates and to make such
representations and warranties, or to provide any other information or
documents, as the Depositary or the Custodian may deem necessary or proper to
fulfill the Depositary’s or the Custodian’s obligations under applicable
law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
If the
Company (or any of its agents) withholds from any distribution any amount on
account of taxes or governmental charges, or pays any other tax in respect of
such distribution (i.e., stamp duty tax, capital
gains or other similar tax), the Company shall (and shall cause such agent to)
remit promptly to the Depositary information about such taxes or governmental
charges withheld or paid, and, if so requested, the tax receipt (or other proof
of payment to the applicable governmental authority) therefor, in each
case, in a form satisfactory to the Depositary. The
Depositary shall, to the extent required by U.S. law, report to Holders any
taxes withheld by it or the Custodian, and, if such information is provided to
it by the Company, any taxes withheld by the Company. The Depositary
and the Custodian shall not be required to provide the Holders with any evidence
of the remittance by the Company (or its agents) of any taxes withheld, or of
the payment of taxes by the Company, except to the extent the evidence is
provided by the Company to the Depositary or the Custodian, as
applicable. Neither the Depositary nor the Custodian shall be liable
for the failure by any Holder or Beneficial Owner to obtain the benefits of
credits on the basis of non-U.S. tax paid against such Holder’s or Beneficial
Owner’s income tax liability.
33
The
Depositary is under no obligation to provide the Holders and Beneficial Owners
with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
ADSs, including without limitation, tax consequences resulting from the Company
(or any of its subsidiaries) being treated as a “Passive Foreign Investment
Company” (in each case as defined in the U.S. Internal Revenue Code and the
regulations issued thereunder) or otherwise.
ARTICLE
V
THE
DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section
5.1 Maintenance of Office and
Transfer Books by the Registrar. Until
termination of the Deposit Agreement in accordance with its terms, the Registrar
shall maintain in the Borough of Manhattan, the City of New York, an office and
facilities for the issuance and delivery of ADSs, the acceptance for surrender
of ADS(s) for the purpose of withdrawal of Deposited Securities, the
registration of issuances, cancellations, transfers, combinations and split-ups
of ADS(s) and, if applicable, to countersign ADRs evidencing the ADSs so issued,
transferred, combined or split-up, in each case in accordance with the
provisions of the Deposit Agreement.
The
Registrar shall keep books for the registration of ADSs which at all reasonable
times shall be open for inspection by the Company and by the Holders of such
ADSs, provided that such inspection shall not be, to the Registrar’s knowledge,
for the purpose of communicating with Holders of such ADSs in the interest of a
business or object other than the business of the Company or other than a matter
related to the Deposit Agreement or the ADSs.
The
Registrar may close the transfer books with respect to the ADSs, at any time or
from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties hereunder, or at the reasonable
written request of the Company subject, in all cases, to Section
7.8.
If any
ADSs are listed on one or more stock exchanges or automated quotation systems in
the United States, the Depositary shall act as Registrar or appoint a Registrar
or one or more co-registrars for registration of issuances, cancellations,
transfers, combinations and split-ups of ADSs and, if applicable, to countersign
ADRs evidencing the ADSs so issued, transferred, combined or split-up, in accordance with any
requirements of such exchanges or systems. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by the
Depositary. The Depositary shall as promptly as practicable notify
the Company at any such removal or appointment.
Section
5.2 Exoneration. Neither
the Depositary nor the Company shall be obligated to do or perform any act which
is inconsistent with the provisions of the Deposit Agreement or incur any
liability (i) if the Depositary or the Company shall be prevented or forbidden
from, or delayed in, doing or performing any act or thing required by the terms
of the Deposit Agreement, by reason of any provision of any present or future
law or regulation of the United States, the Cayman Islands or any other country,
or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Articles of
Association of the Company or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism,
revolutions, rebellions, explosions and computer failure), (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement or in the Articles of Association of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADSs, or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit
Agreement.
34
The
Depositary, its controlling persons, its agents, any Custodian and the Company,
its controlling persons and its agents may rely and shall be protected in acting
upon any written notice, request or other document believed by it to be genuine
and to have been signed or presented by the proper party or
parties.
No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement.
Section
5.3 Standard of
Care. The
Company and the Depositary assume no obligation and shall not be subject to any
liability under the Deposit Agreement or any ADRs to any Holder(s) or Beneficial
Owner(s), except that the Company and the Depositary agree to perform their
respective obligations specifically set forth in the Deposit Agreement or the
applicable ADRs without negligence or bad faith.
Without
limitation of the foregoing, neither the Depositary, nor the Company, nor any of
their respective controlling persons, or agents, shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the ADSs, which in its
opinion may involve it in expense or liability, unless indemnity satisfactory to
it against all expense (including fees and disbursements of counsel) and
liability be furnished as often as may be required (and no Custodian shall be
under any obligation whatsoever with respect to such proceedings, the
responsibility of the Custodian being solely to the Depositary).
The
Depositary and its agents shall not be liable for any failure to carry out any
instructions to vote any of the Deposited Securities, or for the manner in which
any vote is cast or the effect of any vote, provided that any such action or
omission is in good faith and in accordance with the terms of the Deposit
Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of the Deposit Agreement, for the failure or
timeliness of any notice from the Company, or for any action of or failure to
act by, or any information provided or not provided by, DTC or any DTC
Participant.
35
Section
5.4 Resignation and Removal of
the Depositary; Appointment of Successor Depositary. The
Depositary may at any time resign as Depositary hereunder by written notice of
resignation delivered to the Company, such resignation to be effective on the
earlier of (i) the 90th day after delivery thereof to the Company (whereupon the
Depositary shall be entitled to take the actions contemplated in Section 6.2),
or (ii) the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided.
The
Depositary may at any time be removed by the Company by written notice of such
removal, which removal shall be effective on the later of (i) the 90th day after
delivery thereof to the Depositary (whereupon the Depositary shall be entitled
to take the actions contemplated in Section 6.2), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
In case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use 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 be required by
the Company to execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its predecessor (other than as contemplated in
Sections 5.8 and 5.9). The predecessor depositary, upon payment
of all sums due it and on the written request of the Company shall, (i) execute
and deliver an instrument transferring to such successor all rights and powers
of such predecessor hereunder (other than as contemplated in Sections 5.8 and
5.9), (ii) duly assign, transfer and deliver all right, title and interest
to the Deposited Securities to such successor, and (iii) deliver to such
successor a list of the Holders of all outstanding ADSs and such other
information relating to ADSs and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly provide notice
of its appointment to such Holders.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
Section
5.5 The
Custodian. The
Depositary has initially appointed Citibank, N.A. - Hong Kong as Custodian for
the purpose of the Deposit Agreement. The Custodian or its successors
in acting hereunder shall be subject at all times and in all respects to the
direction of the Depositary for the Deposited Securities for which the Custodian
acts as custodian and shall be responsible solely to it. If any
Custodian resigns or is discharged from its duties hereunder with respect to any
Deposited Securities and no other Custodian has previously been appointed
hereunder, the Depositary shall promptly appoint a substitute
custodian. The Depositary shall require such resigning or discharged
Custodian to deliver, or cause the delivery of, the Deposited Securities held by
it, together with all such records maintained by it as Custodian with respect to
such Deposited Securities as the Depositary may request, to the Custodian
designated by the Depositary. Whenever the Depositary determines, in
its discretion, that it is appropriate to do so, it may appoint an additional
custodian with respect to any Deposited Securities, or discharge the Custodian
with respect to any Deposited Securities and appoint a substitute custodian,
which shall thereafter be Custodian hereunder with respect to the Deposited
Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of ADSs, each other Custodian and
the Company.
36
Citibank,
N.A. may at any time act as Custodian of the Deposited Securities pursuant to
the Deposit Agreement, in which case any reference to Custodian shall mean
Citibank, N.A. solely in its capacity as Custodian pursuant to the Deposit
Agreement. Notwithstanding anything contained in the Deposit
Agreement or any ADR, the Depositary shall not be obligated to give prior notice
to the Company, any Holders of ADSs or any other Custodian of its acting as
Custodian pursuant to the Deposit Agreement.
Upon the
appointment of any successor depositary, any Custodian then acting hereunder
shall, unless otherwise instructed by the Depositary, continue to be the
Custodian of the Deposited Securities without any further act or writing, and
shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section
5.6 Notices and
Reports. On
or before the first date on which the Company gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities, or
of any adjourned meeting of such holders, or of the taking of any action by such
holders other than at a meeting, or of the taking of any action in respect of
any cash or other distributions or the offering of any rights in respect of
Deposited Securities, the Company shall transmit to the Depositary and the
Custodian a copy of the notice thereof in the English language but otherwise in
the form given or to be given to holders of Shares or other Deposited
Securities. The Company shall also furnish to the Custodian and the Depositary a
summary, in English, of any applicable provisions or proposed provisions of the
Articles of Association of the Company that may be relevant or pertain to such
notice of meeting or be the subject of a vote thereat.
The
Company will also transmit to the Depositary (a) an English language version of
the other notices, reports and communications which are made generally available
by the Company to holders of its Shares or other Deposited Securities and (b)
the English-language versions of the Company’s annual and semi-annual reports
(if any) prepared in accordance with the applicable requirements of the
Commission, in each case only to the extent such material is not available on
the Company’s website or is not otherwise publicly available. The
Depositary shall arrange, at the request of the Company and at the Company’s
expense, to provide copies thereof to all Holders or make such notices, reports
and other communications available to all Holders on a basis similar to that for
holders of Shares or other Deposited Securities or on such other basis as the
Company may advise the Depositary or as may be required by any applicable law,
regulation or stock exchange requirement. The Company has delivered
to the Depositary and the Custodian a copy of the Company’s Articles of
Association along with the provisions of or governing the Shares and any other
Deposited Securities issued by the Company in connection with such Shares, and
promptly upon any amendment thereto or change therein, the Company shall deliver
to the Depositary and the Custodian a copy of such amendment thereto or change
therein to the extent such amendment or change is not available on the Company’s
website or is not otherwise publicly available. The Depositary may
rely upon such copy for all purposes of the Deposit Agreement.
37
The
Depositary will, at the expense of the Company, make available a copy of any
such notices, reports or communications issued by the Company and delivered to
the Depositary for inspection by the Holders of the ADSs at the Depositary’s
Principal Office, at the office of the Custodian and at any other designated
transfer office.
Section
5.7 Issuance of Additional
Shares, ADSs etc. The
Company agrees that in the event it or any of its Affiliates proposes (i) an
issuance, sale or distribution of additional Shares, (ii) an offering of rights
to subscribe for Shares or other Deposited Securities, (iii) an issuance or
assumption of securities convertible into or exchangeable for Shares, (iv) an
issuance of rights to subscribe for securities convertible into or exchangeable
for Shares, (v) an elective dividend of cash or Shares, (vi) a redemption of
Deposited Securities, (vii) a meeting of holders of Deposited Securities, or
solicitation of consents or proxies, relating to any reclassification of
securities, merger or consolidation or transfer of assets, (viii) any
assumption, reclassification, recapitalization, reorganization, merger,
consolidation or sale of assets which affects the Deposited Securities, or (ix)
a distribution of securities other than Shares, it will obtain U.S. legal advice
and take all steps necessary to ensure that the proposed transaction does not
violate the registration provisions of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the Exchange Act and the securities laws of the states of the
U.S.). In support of the foregoing, the Company will furnish to the
Depositary (a) a written opinion of U.S. counsel (reasonably satisfactory to the
Depositary) stating whether such transaction (1) requires a registration
statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of the Cayman
Islands counsel stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of the Cayman Islands
and (2) all requisite regulatory consents and approvals have been obtained in
the Cayman Islands. If the filing of a registration statement is
required, the Depositary shall not have any obligation to proceed with the
transaction unless it shall have received evidence reasonably satisfactory to it
that such registration statement has been declared effective. If,
being advised by counsel, the Company determines that a transaction is required
to be registered under the Securities Act, the Company will either (i) register
such transaction to the extent necessary, (ii) alter the terms of the
transaction to avoid the registration requirements of the Securities Act or
(iii) direct the Depositary to take specific measures, in each case as
contemplated in the Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act. The
Company agrees with the Depositary that neither the Company nor any of its
Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either upon original issuance or upon a sale of Shares or other
Deposited Securities previously issued and reacquired by the Company or by any
such Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction do not violate the registration provisions of the
Securities Act, or any other applicable laws (including, without limitation, the
Investment Company Act of 1940, as amended, the Exchange Act and the securities
laws of the states of the U.S.).
38
Notwithstanding
anything else contained in the Deposit Agreement, nothing in the Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
Section
5.8 Indemnification. The
Depositary agrees to indemnify the Company and its directors, officers,
employees, agents and Affiliates against, and hold each of them harmless from,
any direct loss, liability, tax, charge or expense of any kind whatsoever
(including, but not limited to, the reasonable fees and expenses of counsel)
which may arise out of acts performed or omitted by the Depositary and the
Custodian (for so long as the Custodian is a branch of Citibank, N.A. at the
time of such act or omission) under the terms hereof due to the negligence or
bad faith of the Depositary or such Custodian, as applicable.
The
Company agrees to indemnify the Depositary, the Custodian and any of their
respective directors, officers, employees, agents and Affiliates against, and
hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) that may arise (a) out of or in connection with
any offer, issuance, sale, resale, transfer, deposit or withdrawal of ADRs,
ADSs, the Shares, or other Deposited Securities, as the case may be, (b) out of
or as a result of any offering documents in respect thereof or (c) out of acts
performed or omitted, including, but not limited to, any delivery by the
Depositary on behalf of the Company of information regarding the Company in
connection with the Deposit Agreement, the ADRs, the ADSs, the Shares, or any
Deposited Securities, in any such case (i) by the Depositary, the Custodian or
any of their respective directors, officers, employees, agents and Affiliates,
except to the extent such loss, liability, tax, charge or expense is due to the
negligence or bad faith of any of them, or (ii) by the Company or any of its
directors, officers, employees, agents and Affiliates. The Company
shall not indemnify the Depositary or the Custodian (for so long as the
Custodian is a branch of Citibank, N.A.) against any liability or expense
arising out of information relating to the Depositary or such Custodian, as the
case may be, furnished in a signed writing to the Company, executed by the
Depositary or such Custodian expressly in use in any registration statement,
prospectus or preliminary prospectus or any other documents relating to the
Deposit Agreement, the ADRs, the ADSs or any Deposited Securities represented by
the ADSs.
The
obligations set forth in this Section shall survive the termination of the
Deposit Agreement and the succession or substitution of any party
hereto.
Any
person seeking indemnification hereunder (an “indemnified person”) shall notify
the person from whom it is seeking indemnification (the “indemnifying person”)
of the commencement of any indemnifiable action or claim promptly after such
indemnified person becomes aware of such commencement (provided that the failure
to make such notification shall not affect such indemnified person’s rights to
seek indemnification except to the extent the indemnifying person is materially
prejudiced by such failure) and shall consult in good faith with the
indemnifying person as to the conduct of the defense of such action or claim
that may give rise to an indemnity hereunder, which defense shall be reasonable
in the circumstances. No indemnified person shall compromise or
settle any action or claim that may give rise to an indemnity hereunder without
the consent of the indemnifying person, which consent shall not be unreasonably
withheld.
39
Section
5.9 Fees and Charges of
Depositary. The
Company, the Holders, the Beneficial Owners, and persons depositing Shares or
surrendering ADSs for cancellation and withdrawal of Deposited Securities shall
be required to pay to the Depositary the Depositary’s fees and related charges
identified as payable by them respectively in the Fee Schedule attached hereto
as Exhibit
B. All fees and charges so payable may, at any time and from
time to time, be changed by agreement between the Depositary and the Company,
but, in the case of fees and charges payable by Holders and Beneficial Owners,
only in the manner contemplated in Section 6.1. The Depositary shall
provide, without charge, a copy of its latest fee schedule to anyone upon
request.
Depositary
Fees payable upon (i) deposit of Shares against issuance of ADSs and
(ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC
or presented to the Depositary via DTC, the ADS issuance and cancellation fees
will be payable to the Depositary by the DTC Participant(s) receiving the ADSs
from the Depositary or the DTC Participant(s) surrendering the ADSs to the
Depositary for cancellation, as the case may be, on behalf of the Beneficial
Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the
applicable Beneficial Owner(s) in accordance with the procedures and practices
of the DTC participant(s) as in effect at the time. Depositary fees
in respect of distributions and the Depositary services fee are payable to the
Depositary by Holders as of the applicable ADS Record Date established by the
Depositary. In the case of distributions of cash, the amount of the
applicable Depositary fees is deducted by the Depositary from the funds being
distributed. In the case of distributions other than cash and the
Depositary service fee, the Depositary will invoice the applicable Holders as of
the ADS Record Date established by the Depositary. For ADSs held
through DTC, the Depositary fees for distributions other than cash and the
Depositary service fee are charged by the Depositary to the DTC Participants in
accordance with the procedures and practices prescribed by DTC from time to time
and the DTC Participants in turn charge the amount of such fees to the
Beneficial Owners for whom they hold ADSs.
The
Depositary may reimburse the Company for certain expenses incurred by the
Company in respect of the ADR program established pursuant to the Deposit
Agreement, by making available a portion of the Depositary fees charged in
respect of the ADR program or otherwise, upon such terms and conditions as the
Company and the Depositary may agree from time to time. The Company shall pay to
the Depositary such fees and charges and reimburse the Depositary for such
out-of-pocket expenses as the Depositary and the Company may agree from time to
time. Responsibility for payment of such charges and reimbursements
may from time to time be changed by agreement between the Company and the
Depositary. Unless otherwise agreed, the Depositary shall present its
statement for such expenses and fees or charges to the Company once every three
months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
40
The right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of the Deposit Agreement. As to
any Depositary, upon the resignation or removal of such Depositary as described
in Section 5.4, such right shall extend for those fees, charges and expenses
incurred prior to the effectiveness of such resignation or removal.
Section
5.10 Pre-Release and
Pre-Cancellation Transactions. Subject to the
further terms and provisions of this Section 5.10, the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its
capacity as Depositary, the Depositary shall not lend Shares or ADSs; provided,
however, that the Depositary may (i) issue ADSs prior to the receipt of Shares
pursuant to Section 2.3 (a “Pre-Release Transaction”) and (ii) Deliver Shares
prior to the receipt and cancellation of ADSs by the Depositary, but only where
the person or entity (the “Pre-Cancellation Applicant”) to whom shares are to be
Delivered represents to the Depositary that it is in the process of Delivering
ADSs to the Depositary for cancellation pursuant to Section 2.7 (a
“Pre-Cancellation Transaction”). The Depositary may receive ADSs in
lieu of Shares under (i) above.
Each Pre-Release Transaction will be
(a) subject to a written agreement whereby the person or entity (the “Pre-Release
Applicant”) to whom ADSs are to be Delivered (w) represents that at the
time of the Pre-Release Transaction the Pre-Release Applicant or its customer
owns the Shares that are to be Delivered by the Pre-Release Applicant under such
Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of such
Shares in its records and to hold such Shares in trust for the Depositary until
such Shares are Delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to Deliver such Shares to the Depositary or the
Custodian, as applicable, and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary on not more
than five (5) business days’ notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate.
Each Pre-Cancellation Transaction will
be (a) subject to a written agreement whereby the Pre-Cancellation Applicant (w)
represents that at the time of the Pre-Cancellation Transaction the
Pre-Cancellation Applicant owns the ADSs (the “Pre-Cancellation
ADSs”) that are to be Delivered by the Pre-Cancellation Applicant under
such Pre-Cancellation Transaction, (x) agrees to indicate the Depositary as
owner of such ADSs in its records and to hold such ADSs in trust for the
Depositary until such ADSs are Delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to Deliver such ADSs to the Depositary, and (z)
agrees to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days’ notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate.
The Depositary will normally limit the
aggregate number of ADSs involved in Pre-Release Transactions and
Pre-Cancellation Transactions at any one time to thirty percent (30%) of the
ADSs outstanding (without giving effect to ADSs outstanding as a result of
Pre-Release Transactions and Pre-Cancellation Transactions), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate.
41
The
Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions and Pre-Cancellation Transactions with any
one person on a case-by-case basis as it deems appropriate. The
Depositary may retain for its own account any compensation received by it in
conjunction with the foregoing. Collateral provided pursuant to the
Pre-Release Transactions and Pre-Cancellation Transactions above, but not the
earnings thereon, shall be held for the benefit of the Holders (other than the
Pre-Release Applicant or Pre-Cancellation Applicant).
Section
5.11 Restricted Securities
Owners. The
Company agrees to advise in writing each of the persons or entities who, to the
knowledge of the Company, holds Restricted Securities that such Restricted
Securities are ineligible for deposit hereunder (except under the circumstances
contemplated in Section 2.14) and, to the extent practicable, shall require each
of such persons to represent in writing that such person will not deposit
Restricted Securities hereunder (except under the circumstances contemplated in
Section 2.14).
ARTICLE
VI
AMENDMENT
AND TERMINATION
Section
6.1 Amendment/Supplement. Subject
to the terms and conditions of this Section 6.1 and applicable law, the ADRs
outstanding at any time, the provisions of the Deposit Agreement and the form of
ADR attached hereto and to be issued under the terms hereof may at any time and
from time to time be amended or supplemented by written agreement between the
Company and the Depositary in any respect which they may deem necessary or
desirable without the prior written consent of the Holders or Beneficial
Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than charges in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding ADSs until the expiration of thirty (30) days
after notice of such amendment or supplement shall have been given to the
Holders of outstanding ADSs. Notice of any amendment to the Deposit
Agreement or any ADR shall not need to describe in detail the specific
amendments effectuated thereby, and failure to describe the specific amendments
in any such notice shall not render such notice invalid, provided, however, that, in
each such case, the notice given to the Holders identifies a means for Holders
and Beneficial Owners to retrieve or receive the text of such amendment (i.e., upon retrieval from the
Commission’s, the Depositary’s or the Company’s website or upon request from the
Depositary). The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be settled solely in electronic book-entry
form and (ii) do not in either such case impose or increase any fees or charges
to be borne by Holders, shall be deemed not to materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such ADSs, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement and the ADR, if
applicable, as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such ADS and
receive therefor the Deposited Securities represented thereby, except in order
to comply with mandatory provisions of applicable
law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and any ADRs at
any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement
and any ADRs in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
42
Section
6.2 Termination. The
Depositary shall, at any time at the written direction of the Company, terminate
the Deposit Agreement by distributing notice of such termination to the Holders
of all ADSs then outstanding at least thirty (30) days prior to the date fixed
in such notice for such termination. If ninety (90) days shall have
expired after (i) the Depositary shall have delivered to the Company a written
notice of its election to resign, or (ii) the Company shall have delivered to
the Depositary a written notice of the removal of the Depositary, and, in either
case, a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4 of the Deposit Agreement, the Depositary
may terminate the Deposit Agreement by distributing notice of such termination
to the Holders of all ADSs then outstanding at least thirty (30) days prior to
the date fixed in such notice for such termination. The date so fixed
for termination of the Deposit Agreement in any termination notice so
distributed by the Depositary to the Holders of ADSs is referred to as the
“Termination
Date”. Until the Termination Date, the Depositary shall
continue to perform all of its obligations under the Deposit Agreement, and the
Holders and Beneficial Owners will be entitled to all of their rights under the
Deposit Agreement.
If any
ADSs shall remain outstanding after the Termination Date, the Registrar and the
Depositary shall not, after the Termination Date, have any obligation to perform
any further acts under the Deposit Agreement, except that the Depositary shall,
subject, in each case, to the terms and conditions of the Deposit Agreement,
continue to (i) collect dividends and other distributions pertaining to
Deposited Securities, (ii) sell securities and other property received in
respect of Deposited Securities, (iii) deliver Deposited Securities, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any securities or other property, in exchange for
ADSs surrendered to the Depositary (after deducting, or charging, as the case
may be, in each case, the fees and charges of, and expenses incurred by, the
Depositary, and all applicable taxes or governmental charges for the account of
the Holders and Beneficial Owners, in each case upon the terms set forth in
Section 5.9 of the Deposit Agreement), and (iv) take such actions as may be
required under applicable law in connection with its role as Depositary under
the Deposit Agreement.
43
At any
time after the Termination Date, the Depositary may sell the Deposited
Securities then held under the Deposit Agreement and shall after such sale hold
un-invested the net proceeds of such sale, together with any other cash then
held by it under the Deposit Agreement, in an un-segregated account and without
liability for interest, for the pro - rata benefit of the Holders whose ADSs
have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
except (i) to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the fees and charges of, and
expenses incurred by, the Depositary, and all applicable taxes or governmental
charges for the account of the Holders and Beneficial Owners, in each case upon
the terms set forth in Section 5.9 of the Deposit Agreement), and (ii) as may be
required at law in connection with the termination of the Deposit
Agreement. After the Termination Date, the Company shall be
discharged from all obligations under the Deposit Agreement, except for its
obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit
Agreement. The obligations under the terms of the Deposit Agreement
of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date
shall survive the Termination Date and shall be discharged only when the
applicable ADSs are presented by their Holders to the Depositary for
cancellation under the terms of the Deposit Agreement.
ARTICLE
VII
MISCELLANEOUS
Section
7.1 Counterparts. The
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of such counterparts together shall
constitute one and the same agreement. Copies of the Deposit
Agreement shall be maintained with the Depositary and shall be open to
inspection by any Holder during business hours.
Section
7.2 No Third-Party
Beneficiaries. The
Deposit Agreement is for the exclusive benefit of the parties hereto (and their
successors) and shall not be deemed to give any legal or equitable right, remedy
or claim whatsoever to any other person, except to the extent specifically set
forth in the Deposit Agreement. Nothing in the Deposit Agreement
shall be deemed to give rise to a partnership or joint venture among the parties
nor establish a fiduciary or similar relationship among the
parties. The parties hereto acknowledge and agree that (i) the
Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in the Deposit Agreement shall (a) preclude the Depositary or
any of its Affiliates from engaging in such transactions or establishing or
maintaining such relationships, and (b) obligate the Depositary or any of its
Affiliates to disclose such transactions or relationships or to account for any
profit made or payment received in such transactions or
relationships.
Section
7.3 Severability. In
case any one or more of the provisions contained in the Deposit Agreement or in
the ADRs should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
Section
7.4 Holders and Beneficial
Owners as Parties; Binding Effect. The
Holders and Beneficial Owners from time to time of ADSs issued hereunder shall
be parties to the Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of any ADR evidencing their ADSs by acceptance thereof or
any beneficial interest therein.
44
Section
7.5 Notices. Any
and all notices to be given to the Company shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex or
facsimile transmission, confirmed by letter personally delivered or sent by mail
or air courier, addressed to 5th
Floor, Block 57, No. 461 Hongcao Road, Xuhui District, Shangai 200233, People’s
Republic of China, Attention: Min
(Jenny) Zhang, or to any other address which the Company may specify in writing
to the Depositary.
Any and
all notices to be given to the Depositary shall be deemed to have been duly
given if personally delivered or sent by mail, air courier or cable, telex or
facsimile transmission, confirmed by letter personally delivered or sent by mail
or air courier, addressed to Citibank, N.A., 388 Greenwich Street, New York, New
York 10013, U.S.A., Attention: Depositary
Receipts Department (facsimile number: 212-816-6865), or to any other address
which the Depositary may specify in writing to the Company.
Any and
all notices to be given to any Holder shall be deemed to have been duly given if
(a) personally delivered or sent by mail or cable, telex or facsimile
transmission, confirmed by letter, addressed to such Holder at the address of
such Holder as it appears on the books of the Depositary or, if such Holder
shall have filed with the Depositary a request that notices intended for such
Holder be mailed to some other address, at the address specified in such
request, or (b) if a Holder shall have designated such means of
notification as an acceptable means of notification under the terms of the
Deposit Agreement, by means of electronic messaging addressed for delivery to
the e-mail address designated by the Holder for such purpose. Notice
to Holders shall be deemed to be notice to Beneficial Owners for all purposes of
the Deposit Agreement. Failure to notify a Holder or any defect in
the notification to a Holder shall not affect the sufficiency of notification to
other Holders or to the Beneficial Owners of ADSs held by such other
Holders.
Delivery
of a notice sent by mail, air courier or cable, telex or facsimile transmission
shall be deemed to be effective at the time when a duly addressed letter
containing the same (or a confirmation thereof in the case of a cable, telex or
facsimile transmission) is deposited, postage prepaid, in a post-office letter
box or delivered to an air courier service, without regard for the actual
receipt or time of actual receipt thereof by a Holder. The Depositary
or the Company may, however, act upon any cable, telex or facsimile transmission
received by it from any Holder, the Custodian, the Depositary, or the Company,
notwithstanding that such cable, telex or facsimile transmission shall not be
subsequently confirmed by letter.
Delivery
of a notice by means of electronic messaging shall be deemed to be effective at
the time of the initiation of the transmission by the sender (as shown on the
sender’s records), notwithstanding that the intended recipient retrieves the
message at a later date, fails to retrieve such message, or fails to receive
such notice on account of its failure to maintain the designated e-mail address,
its failure to designate a substitute e-mail address or for any other
reason.
Section
7.6 Governing Law and
Jurisdiction. The
Deposit Agreement and the ADRs shall be interpreted in accordance with, and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, the laws of the State of New York applicable to contracts made and
to be wholly performed in that State. Notwithstanding anything
contained in the Deposit Agreement, any ADR or any present or future provisions
of the laws of the State of New York, the rights of holders of Shares and of any
other Deposited Securities and the obligations and duties of the Company in
respect of the holders of Shares and other Deposited Securities, as such, shall
be governed by the laws of the Cayman Islands (or, if applicable, such other
laws as may govern the Deposited Securities).
45
Except as
set forth in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York shall
have jurisdiction to hear and determine any suit, action or proceeding and to
settle any dispute between them that may arise out of or in connection with the
Deposit Agreement and, for such purposes, each irrevocably submits to the
non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System (the “Agent”) now at 111
Eight Avenue, 13th
Floor, New York, New York 10011 as its authorized agent to receive and accept
for and on its behalf, and on behalf of its properties, assets and revenues,
service by mail of any and all legal process, summons, notices and documents
that may be served in any suit, action or proceeding brought against the Company
in any federal or state court as described in the preceding sentence or in the
next paragraph of this Section 7.6. If for any reason the Agent shall
cease to be available to act as such, the Company agrees to designate a new
agent in New York on the terms and for the purposes of this Section 7.6
reasonably satisfactory to the Depositary. The Company further hereby
irrevocably consents and agrees to the service of any and all legal process,
summons, notices and documents in any suit, action or proceeding against the
Company, by service by mail of a copy thereof upon the Agent (whether or not the
appointment of such Agent shall for any reason prove to be ineffective or such
Agent shall fail to accept or acknowledge such service), with a copy mailed to
the Company by registered or certified air mail, postage prepaid, to its address
provided in Section 7.5. The Company agrees that the failure of the
Agent to give any notice of such service to it shall not impair or affect in any
way the validity of such service or any judgment rendered in any action or
proceeding based thereon.
Notwithstanding
the foregoing, the Depositary and the Company unconditionally agree that in the
event that a Holder or Beneficial Owner brings a suit, action or proceeding
against (a) the Company, (b) the Depositary in its capacity as Depositary under
the Deposit Agreement or (c) against both the Company and the Depositary, in any
such case, in any state or federal court of the United States, and the
Depositary or the Company have any claim, for indemnification or otherwise,
against each other arising out of the subject matter of such suit, action or
proceeding, then the Company and the Depositary may pursue such claim against
each other in the state or federal court in the United States in which such
suit, action, or proceeding is pending and, for such purposes, the Company and
the Depositary irrevocably submit to the non-exclusive jurisdiction of such
courts. The Company agrees that service of process upon the Agent in
the manner set forth in the preceding paragraph shall be effective service upon
it for any suit, action or proceeding brought against it as described in this
paragraph.
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, any objection that it may now or hereafter have to the laying of venue
of any actions, suits or proceedings brought in any court as provided in this
Section 7.6, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient
forum.
46
The
Company irrevocably and unconditionally waives, to the fullest extent permitted
by law, and agrees not to plead or claim, any right of immunity from legal
action, suit or proceeding, from setoff or counterclaim, from the jurisdiction
of any court, from service of process, from attachment upon or prior to
judgment, from attachment in aid of execution or judgment, from execution of
judgment, or from any other legal process or proceeding for the giving of any
relief or for the enforcement of any judgment, and consents to such relief and
enforcement against it, its assets and its revenues in any jurisdiction, in each
case with respect to any matter arising out of, or in connection with, the
Deposit Agreement, any ADR or the Deposited Securities.
No
disclaimer of liability under the Securities Act is intended by any provision of
the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of the Deposit Agreement, in whole or in
part.
Section
7.7 Assignment. Subject
to the provisions of Section 5.4, the Deposit Agreement may not be assigned by
either the Company or the Depositary.
Section
7.8 Compliance with U.S.
Securities Laws. Notwithstanding
anything in the Deposit Agreement to the contrary, the withdrawal or delivery of
Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section
7.9 Cayman Islands Law
References. Any
summary of the laws and regulations of the Cayman Islands and of the terms of
the Company’s Articles of Association set forth in the Deposit Agreement have
been provided by the Company solely for the convenience of Holders, Beneficial
Owners and the Depositary. While such summaries are believed by the
Company to be accurate as of the date of the Deposit Agreement, (i) they
are summaries and as such may not include all aspects of the materials
summarized applicable to a Holder or Beneficial Owner, and (ii) these laws and
regulations and the Company’s Articles of Association may change after the date
of the Deposit Agreement. Neither the Depositary nor the Company has
any obligation under the terms of the Deposit Agreement to update any such
summaries.
Section
7.10 Titles and
References.
(a) Deposit
Agreement. All references in
the Deposit Agreement to exhibits, articles, sections, subsections, and other
subdivisions refer to the exhibits, articles, sections, subsections and other
subdivisions of the Deposit Agreement unless expressly provided
otherwise. The words “the Deposit Agreement”, “herein”, “hereof”,
“hereby”, “hereunder”, and words of similar import refer to the Deposit
Agreement as a whole as in effect at the relevant time between the Company, the
Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless
the context otherwise requires. Titles to sections of the Deposit
Agreement are included for convenience only and shall be disregarded in
construing the language contained in the Deposit
Agreement. References to “applicable laws and regulations” shall
refer to laws and regulations applicable to ADRs, ADSs or Deposited Securities
as in effect at the relevant time of determination, unless otherwise required by
law or regulation.
47
(b) ADRs. All references in
any ADR(s) to paragraphs, exhibits, articles, sections, subsections, and other
subdivisions refer to the paragraphs, exhibits, articles, sections, subsections
and other subdivisions of the ADR(s) in question unless expressly provided
otherwise. The words “the Receipt”, “the ADR”, “herein”, “hereof”,
“hereby”, “hereunder”, and words of similar import used in any ADR refer to the
ADR as a whole and as in effect at the relevant time, and not to any particular
subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender in any ADR shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless
the context otherwise requires. Titles to paragraphs of any ADR are
included for convenience only and shall be disregarded in construing the
language contained in the ADR. References to “applicable laws and
regulations” shall refer to laws and regulations applicable to ADRs, ADSs or
Deposited Securities as in effect at the relevant time of determination, unless
otherwise required by law or regulation.
48
IN
WITNESS WHEREOF, CHINA LODGING GROUP, LIMITED and CITIBANK, N.A. have duly
executed the Deposit Agreement as of the day and year first above set forth and
all Holders and Beneficial Owners shall become parties hereto upon acceptance by
them of ADSs issued in accordance with the terms hereof, or upon acquisition of
any beneficial interest therein.
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CHINA LODGING GROUP,
LIMITED
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By:
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| Name: | ||||
| Title: | ||||
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CITIBANK,
N.A.
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By:
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| Name: | ||||
| Title: | ||||
49
EXHIBIT
A
[FORM
OF ADR]
| Number _______ | CUSIP NUMBER: _______ | |
|
American
Depositary Shares (each American Depositary Share representing the right
to receive four (4) ordinary shares, of China Lodging Group,
Limited)
|
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
of
CHINA
LODGING GROUP, LIMITED
(Incorporated
under the laws of the Cayman Islands)
CITIBANK,
N.A., a national banking association organized and existing under the laws of
the United States of America, as depositary (the “Depositary”), hereby certifies
that _____________is the owner of ______________ American Depositary Shares
(hereinafter “ADS”), representing deposited ordinary shares, including evidence
of rights to receive such ordinary shares (the “Shares”), of China Lodging
Group, Limited, a company incorporated under the laws of the Cayman Islands (the
“Company”). As of the date of the Deposit Agreement (as hereinafter
defined), each ADS represents the right to receive four (4) Shares
deposited under the Deposit Agreement with the Custodian, which at the date of
execution of the Deposit Agreement is Citibank, N.A. – Hong Kong (the
“Custodian”). The ADS(s)-to-Share(s) ratio is subject to amendment as
provided in Articles IV and VI of the Deposit Agreement. The
Depositary’s Principal Office is located at 388 Greenwich Street, New York, New
York 10013, U.S.A.
A-1
(1) The
Deposit Agreement. This American
Depositary Receipt is one of an issue of American Depositary Receipts (“ADRs”),
all issued and to be issued upon the terms and conditions set forth in the
Deposit Agreement, dated as of [date], 2010 (as amended and
supplemented from time to time, the “Deposit Agreement”), by and among the
Company, the Depositary, and all Holders and Beneficial Owners from time to time
of ADSs issued thereunder. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners of ADSs and the rights
and duties of the Depositary in respect of the Shares deposited thereunder and
any and all other securities, property and cash from time to time received in
respect of such Shares and held thereunder (such Shares, securities, property
and cash are herein called “Deposited Securities”). Copies of the
Deposit Agreement are on file at the Principal Office of the Depositary and with
the Custodian. Each Holder and each Beneficial Owner, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and
conditions of the Deposit Agreement, shall be deemed for all purposes to (a) be
a party to and bound by the terms of the Deposit Agreement and applicable
ADR(s), and (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on its behalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to carry out
the purposes of the Deposit Agreement and the applicable ADR(s), the taking of
such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
The
statements made on the face and reverse of this ADR are summaries of certain
provisions of the Deposit Agreement and the Articles of Association of the Company (as in
effect on the date of the signing of the Deposit Agreement) and are qualified by
and subject to the detailed provisions of the Deposit Agreement and the Articles
of Association, to which reference is hereby made. All capitalized
terms used herein which are not otherwise defined herein shall have the meanings
ascribed thereto in the Deposit Agreement. The Depositary makes no
representation or warranty as to the validity or worth of the Deposited
Securities. The Depositary has made arrangements for the acceptance
of the ADSs into DTC. Each Beneficial Owner of ADSs held through DTC
must rely on the procedures of DTC and the DTC Participants to exercise and be
entitled to any rights attributable to such ADSs. The Depositary may
issue Uncertificated ADSs subject, however, to the terms and conditions of
Section 2.13 of the Deposit Agreement.
(2) Withdrawal
of Deposited Securities. The Holder of
this ADR (and of the ADSs evidenced hereby) shall be entitled to Delivery (at
the Custodian’s designated office) of the Deposited Securities at the time
represented by the ADSs evidenced hereby upon satisfaction of each of the
following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered to the Depositary at its Principal Office the ADSs
evidenced hereby (and, if applicable, this ADR) for the purpose of withdrawal of
the Deposited Securities represented thereby, (ii) if applicable and so required
by the Depositary, this ADR Delivered to the Depositary for such purpose has
been properly endorsed in blank or is accompanied by proper instruments of
transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be
Delivered to or upon the written order of the person(s) designated in such
order, and (iv) all applicable fees and charges of, and expenses incurred by,
the Depositary and all applicable taxes and governmental charges (as are set
forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement) have been
paid, subject, however, in
each case, to the terms and conditions of this ADR evidencing the
surrendered ADSs, of the Deposit Agreement, of the Company’s Articles of
Association, of any applicable laws and the rules of the applicable book-entry
settlement entity, and to any provisions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
A-2
Upon
satisfaction of each of the conditions specified above, the Depositary (i) shall
cancel the ADSs Delivered to it (and, if applicable, the ADRs evidencing the
ADSs so Delivered), (ii) shall direct the Registrar to record the
cancellation of the ADSs so Delivered on the books maintained for such purpose,
and (iii) shall direct the Custodian to Deliver, or cause the Delivery of,
in each case, without unreasonable delay, the Deposited Securities
represented by the ADSs so canceled together with any certificate or other
document of title for the Deposited Securities, or evidence of the electronic
transfer thereof (if available), as the case may be, to or upon the written
order of the person(s) designated in the order delivered to the Depositary for
such purpose, subject however,
in each case, to the terms and conditions of the Deposit Agreement, of
this ADR evidencing the ADS so cancelled, of the Articles of Association of the Company, of any
applicable laws and of the rules of the applicable book-entry settlement entity,
and to the terms and conditions of or governing the Deposited
Securities, in each case as in effect at the time thereof.
The
Depositary shall not accept for surrender ADSs representing less than one (1)
Share. In the case of Delivery to it of ADSs representing a number
other than a whole number of Shares, the Depositary shall cause ownership of the
appropriate whole number of Shares to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return
to the person surrendering such ADSs the number of ADSs representing any
remaining fractional Share, or (ii) sell or cause to be sold the fractional
Share represented by the ADSs so surrendered in a riskless capacity, in a public
sale or if no public sale market is available, in a private sale, and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes withheld) to the person
surrendering the ADSs. Notwithstanding anything else contained in
this ADR or the Deposit Agreement, the Depositary may make delivery at the
Principal Office of the Depositary of (i) any cash dividends or cash
distributions, or (ii) any proceeds from the sale of any distributions of
shares or rights, which are at the time held by the Depositary in respect of the
Deposited Securities represented by the ADSs surrendered for cancellation and
withdrawal. At the request, risk and expense of any Holder so
surrendering ADSs represented by this ADR, and for the account of such Holder,
the Depositary shall direct the Custodian to forward (to the extent permitted by
law) any cash or other property (other than securities) held by the Custodian in
respect of the Deposited Securities represented by such ADSs to the Depositary
for delivery at the Principal Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfer,
Combination and Split-Up of ADRs. The Registrar
shall register the transfer of this ADR (and of the ADSs represented hereby) on
the books maintained for such purpose and the Depositary shall (x) cancel
this ADR and execute new ADRs evidencing the same aggregate number of ADSs as
those evidenced by this ADR when canceled by the Depositary, (y) cause the
Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or
upon the order of the person entitled thereto, if each of the following
conditions has been satisfied: (i) this ADR has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) this surrendered ADR has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this surrendered
ADR has been duly stamped (if required by the laws of the State of New York or
of the United States), and (iv) all applicable fees and charges of, and
expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this ADR, of the Deposit Agreement
and of applicable law, in each case as in effect at the time
thereof.
A-3
The
Registrar shall register the split-up or combination of this ADR (and of the
ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall (x) cancel this ADR and execute new ADRs for the number of
ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced
by this ADR canceled by the Depositary, (y) cause the Registrar to
countersign such new ADRs, and (z) Deliver such new ADRs to or upon the
order of the Holder thereof, if each of the following conditions has been
satisfied: (i) this ADR has been duly Delivered by the Holder
(or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination hereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and government charges (as are set forth in
Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each
case, to the terms and conditions of this ADR, of the Deposit Agreement
and of applicable law, in each case as in effect at the time
thereof.
The
Depositary may appoint one or more co-transfer agents for the purpose of
effecting transfers, combinations and split-ups of ADRs at designated transfer
offices on behalf of the Depositary and the Depositary shall notify the Company
in writing upon such appointment. In carrying out its functions, a
co-transfer agent may require evidence of authority and compliance with
applicable laws and other requirements by Holders or persons entitled to such
ADRs and will be entitled to protection and indemnity to the same extent as the
Depositary. Such co-transfer agents may be removed and substitutes
appointed by the Depositary and the Depositary shall notify the Company at any
such removal or substitution. Each co-transfer agent appointed under
Section 2.6 of the Deposit Agreement (other than the Depositary) shall give
notice in writing to the Depositary accepting such appointment and agreeing to
be bound by the applicable terms of the Deposit Agreement.
(4) Pre-Conditions
to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of issuance, transfer,
split-up, combination or surrender, of any ADS, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Shares or presenter of
ADSs or of an ADR of a sum sufficient to reimburse it for any tax or other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares being
deposited or withdrawn) and payment of any applicable fees and charges of the
Depositary as provided in Section 5.9 and Exhibit B to the
Deposit Agreement and in this ADR, (ii) the production of proof satisfactory to
it as to the identity and genuineness of any signature or any other matters
contemplated in Section 3.1 of the Deposit Agreement, and (iii) compliance with
(A) any laws or governmental regulations relating to the execution and delivery
of ADRs or ADSs or to the withdrawal of Deposited Securities and (B) such
reasonable regulations as the Depositary and the Company may establish
consistent with the provisions of this ADR, if applicable, the Deposit Agreement
and applicable law.
A-4
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the deposit of particular Shares may be
refused, or the registration of transfer of ADSs in particular instances may be
refused, or the registration of transfer of ADSs generally may be suspended,
during any period when the transfer books of the Company, the Depositary, a
Registrar or the Share Registrar are closed or if any such action is deemed
necessary or advisable by the Depositary (whereupon the Depositary shall notify
the Company) or the Company, in good faith, at any time or from time to time
because of any requirement of law or regulation, any government or governmental
body or commission or any securities exchange on which the Shares or ADSs are
listed, or under any provision of the Deposit Agreement or this ADR, if
applicable, or under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases to paragraph (24) and Section 7.8 of the Deposit
Agreement. Notwithstanding any provision of the Deposit Agreement or
this ADR to the contrary, Holders are entitled to surrender outstanding ADSs to
withdraw the Deposited Securities associated therewith at any time subject only
to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Shares in connection with voting at
a shareholders’ meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign laws or
governmental regulations relating to the ADSs or the withdrawal of the Deposited
Securities, and (iv) other circumstances specifically contemplated by
Instruction I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
(5) Compliance
With Information Requests. Notwithstanding
any other provision of the Deposit Agreement or this ADR, each Holder and
Beneficial Owner of the ADSs represented hereby agrees to comply with requests
from the Company pursuant to applicable law, the rules and requirements of the
[Nasdaq Global Select Market], and any stock exchange on which Shares or ADSs
are, or will be, registered, traded or listed, or the Articles of Association of
the Company, which are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and Shares, as the
case may be) and regarding the identity of any other person(s) interested in
such ADSs and the nature of such interest and various other matters, whether or
not they are Holders and/or Beneficial Owners at the time of such
request. The Depositary agrees to use its reasonable efforts to
forward, upon the request of the Company and at the Company's expense, any such
request from the Company to the Holders and to forward to the Company any such
responses to such requests received by the Depositary.
(6) Ownership
Restrictions. Notwithstanding
any provision of this ADR or of the Deposit Agreement, the Company may restrict
transfers of the Shares where such transfer might result in ownership of Shares
exceeding limits imposed by applicable law or the Articles of Association of the
Company. The Company may also restrict, in such manner as it deems
appropriate, transfers of the ADSs where such transfer may result in the total
number of Shares represented by the ADSs owned by a single Holder or Beneficial
Owner to exceed any such limits. The Company may, in its sole
discretion but subject to applicable law, instruct the Depositary to take action
with respect to the ownership interest of any Holder or Beneficial Owner in
excess of the limits set forth in the preceding sentence, including but not
limited to, the imposition of restrictions on the transfer of ADSs, the removal
or limitation of voting rights or mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Shares represented by the ADSs held by such
Holder or Beneficial Owner in excess of such limitations, if and to the extent
such disposition is permitted by applicable law and the Articles of Association
of the Company. Nothing herein or in the Deposit Agreement shall be
interpreted as obligating the Depositary or the Company to ensure compliance
with the ownership restrictions described herein or in Section 3.5 of the
Deposit Agreement.
A-5
Applicable laws and regulations may
require holders and beneficial owners of Shares, including the Holders and
Beneficial Owners of ADSs, to satisfy reporting requirements and obtain
regulatory approvals in certain circumstances. Holders and Beneficial
Owners of ADSs are solely responsible for determining and complying with such
reporting requirements, and for obtaining such approvals. Each Holder
and each Beneficial Owner hereby agrees to make such determination, file such
reports, and obtain such approvals to the extent and in the form required by
applicable laws and regulations as in effect from time to
time. Neither the Depositary, the Custodian, the Company or any of
their respective agents or affiliates shall be required to take any actions
whatsoever on behalf of Holders or Beneficial Owners to determine or satisfy
such reporting requirements or obtain such regulatory approvals under applicable
laws and regulations.
(7) Liability
of Holder for Taxes and Other Charges. Any tax or other
governmental charge payable by the Custodian or by the Depositary with respect
to any ADR or any Deposited Securities or ADSs shall be payable by the Holders
and Beneficial Owners to the Depositary. The Company, the Custodian
and/or Depositary may withhold or deduct from any distributions made in respect
of Deposited Securities and may sell in a riskless principal capacity in a
public sale or if no public market is available, in a private sale, for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of any
taxes (including applicable interest and penalties) or charges that are payable
by Holders or Beneficial Owners in respect of the ADSs, Deposited Securities and
ADRs, the Holder and the Beneficial Owner hereof remaining liable for any
deficiency. The Custodian may refuse the deposit of Shares and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer of
ADSs, register the split-up or combination of ADRs and (subject to paragraph
(24) hereof and Section 7.8 of the Deposit Agreement) the withdrawal of
Deposited Securities until payment in full of such tax, charge, penalty or
interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their
respective agents, officers, directors, employees and Affiliates for, and hold
each of them harmless from, any claims with respect to taxes (including
applicable interest and penalties thereon) arising from any tax benefit obtained
for such Holder and/or Beneficial Owner.
(8) Representations
and Warranties of Depositors. Each person
depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares and the certificates therefor are
duly authorized, validly issued, fully paid, non-assessable and legally obtained
by such person, (ii) all preemptive (and similar) rights, if any, with
respect to such Shares have been validly waived or exercised, (iii) the
person making such deposit is duly authorized so to do, (iv) the Shares
presented for deposit are free and clear of any lien, encumbrance, security
interest, charge, mortgage or adverse claim, and (v) the Shares presented for
deposit are not, and the ADSs issuable upon such deposit will not be, Restricted
Securities (except as contemplated in Section 2.14 of the Deposit Agreement),
and (vi) the Shares presented for deposit have not been stripped of any
rights or entitlements. Such representations and warranties shall
survive the deposit and withdrawal of Shares, the issuance and cancellation of
ADSs in respect thereof and the transfer of such ADSs. If any such
representations or warranties are false in any way, the Company and the
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
A-6
(9) Proofs,
Certificates and Other Information. Any person
presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws, the terms of
the Deposit Agreement or the ADR(s) evidencing the ADSs and the provisions of,
or governing, the Deposited Securities, to execute such certifications and to
make such representations and warranties, and to provide such other information
and documentation (or, in the case of Shares in registered form presented for
deposit, such information relating to the registration on the books of the
Company or of the Shares Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement
and the applicable ADR(s). The Depositary and the Registrar, as
applicable, may withhold the execution or delivery or registration of transfer
of any ADR or ADS or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by paragraph
(24) and Section 7.8 of the Deposit Agreement, the delivery of any Deposited
Securities until such proof or other information is filed or such certifications
are executed, or such representations are made or such other information or
documentation are provided, in each case to the Depositary’s, the Registrar’s
and the Company’s satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval or copies of written representations and warranties
which it receives from Holders and Beneficial Owners, and (ii) any other
information or documents which the Company may reasonably request and which the
Depositary shall request and receive from any Holder or Beneficial Owner or any
person presenting Shares for deposit or ADSs for cancellation, transfer or
withdrawal. Nothing herein shall obligate the Depositary to (i)
obtain any information for the Company if not provided by the Holders or
Beneficial Owners, or (ii) verify or vouch for the accuracy of the information
so provided by the Holders or Beneficial Owners.
(10) Charges
of Depositary. The Depositary
shall charge the following fees:
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(i)
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Issuance
Fee: to any person depositing Shares or to whom ADSs are
issued upon the deposit of Shares, a fee not in excess of U.S. $5.00 per
100 ADSs (or fraction thereof) so issued under the terms of the Deposit
Agreement (excluding issuances as a result of distributions described in
paragraph (iv) below);
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A-7
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(ii)
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Cancellation
Fee: to any person surrendering ADSs for cancellation
and withdrawal of Deposited Securities, a fee not in excess of U.S. $5.00
per 100 ADSs (or fraction thereof)
surrendered;
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(iii)
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Cash Distribution
Fee: to any Holder of ADS(s), a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of
cash dividends or other cash distributions (i.e., sale of rights
and other entitlements); and
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(iv)
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Stock
Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction
thereof) held for (i) stock dividends or other free stock distributions or
(ii) exercise of rights to purchase additional
ADSs;
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(v)
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Other Distribution
Fee: to any Holder of ADS(s), a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of
securities other than ADSs or rights to purchase additional ADSs;
and
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(vi)
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Depositary Services
Fee: to any Holder of ADS(s), a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable
record date(s) established by the
Depositary.
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Holders, Beneficial Owners, persons
depositing Shares and persons surrendering ADSs for cancellation and for the
purpose of withdrawing Deposited Securities shall be responsible for the
following charges:
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(i)
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taxes
(including applicable interest and penalties) and other governmental
charges;
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(ii)
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such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals,
respectively;
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(iii)
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such
cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
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(iv)
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the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
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(v)
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such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
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A-8
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(vi)
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the
fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the delivery or servicing of Deposited
Securities.
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The
Company, the Holders, the Beneficial Owners, and persons depositing Shares or
surrendering ADSs for cancellation and withdrawal of Deposited Securities shall
be required to pay to the Depositary the Depositary's fees and all related
charges identified as payable by them respectively in the Fee Schedule attached
as Exhibit B to
the Deposit Agreement. All fees and charges may, at any time and from
time to time, be changed by agreement between the Depositary and Company but, in
the case of fees and charges payable by Holders or Beneficial Owners, only in
the manner contemplated by paragraph (22) of this ADR and as contemplated in
Section 6.1 of the Deposit Agreement. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon
request.
Depositary
Fees payable upon (i) deposit of Shares against issuance of ADSs and
(ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC
or presented to the Depositary via DTC, the ADS issuance and cancellation fees
will be payable to the Depositary by the DTC Participant(s) receiving the ADSs
from the Depositary or the DTC Participant(s) surrendering the ADSs to the
Depositary for cancellation, as the case may be, on behalf of the Beneficial
Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the
applicable Beneficial Owner(s) in accordance with the procedures and practices
of the DTC participant(s) as in effect at the time. Depositary fees
in respect of distributions and the Depositary services fee are payable to the
Depositary by Holders as of the applicable ADS Record Date established by the
Depositary. In the case of distributions of cash, the amount of the
applicable Depositary fees is deducted by the Depositary from the funds being
distributed. In the case of distributions other than cash and the
Depositary service fee, the Depositary will invoice the applicable Holders as of
the ADS Record Date established by the Depositary. For ADSs held
through DTC, the Depositary fees for distributions other than cash and the
Depositary service fee are charged by the Depositary to the DTC Participants in
accordance with the procedures and practices prescribed by DTC from time to time
and the DTC Participants in turn charge the amount of such fees to the
Beneficial Owners for whom they hold ADSs.
The
Depositary may reimburse the Company for certain expenses incurred by the
Company in respect of the ADR program established pursuant to the Deposit
Agreement, by making available a portion of the Depositary fees charged in
respect of the ADR program or otherwise, upon such terms and conditions as the
Company and the Depositary may agree from time to time. The Company shall pay to
the Depositary such fees and charges and reimburse the Depositary for such
out-of-pocket expenses as the Depositary and the Company may agree from time to
time. Responsibility for payment of such charges and reimbursements
may from time to time be changed by agreement between the Company and the
Depositary. Unless otherwise agreed, the Depositary shall present its
statement for such expenses and fees or charges to the Company once every three
months. The charges and expenses of the Custodian are for the sole
account of the Depositary.
A-9
The right
of the Depositary to receive payment of fees, charges and expenses as provided
above shall survive the termination of the Deposit Agreement. As to
any Depositary, upon the resignation or removal of such Depositary as described
in Section 5.4 of the Deposit Agreement, such right shall extend for those fees,
charges and expenses incurred prior to the effectiveness of such resignation or
removal.
(11) Title to
ADRs. It is a condition
of this ADR, and every successive Holder of this ADR by accepting or holding the
same consents and agrees, that title to this ADR (and to each ADS evidenced
hereby) shall be transferable upon the same terms as a certificated security
under the laws of the State of New York, provided that, in the case of
Certificated ADSs, such ADR has been properly endorsed or is accompanied by
proper instruments of transfer. Notwithstanding any notice to the
contrary, the Depositary and the Company may deem and treat the Holder of this
ADR (that is, the person in whose name this ADR is registered on the books of
the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
ADR to any holder of this ADR or any Beneficial Owner unless, in the case of a
holder of ADSs, such holder is the Holder of this ADR registered on the books of
the Depositary or, in the case of a Beneficial Owner, such Beneficial Owner or
the Beneficial Owner’s representative is the Holder registered on the books of
the Depositary.
(12) Validity
of ADR. The Holder(s) of this ADR (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this ADR has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly-authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly-authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of ADRs. An ADR bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such ADR by the Depositary.
(13) Available
Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and, accordingly, is required to file or submit certain reports with the
Commission. These reports can be retrieved from the Commission's
website (www.sec.gov) and can be inspected and copied at the public reference
facilities maintained by the Commission located (as of the date of the Deposit
Agreement) at 100 F Street, N.E., Washington
D.C. 20549. The Depositary shall make available for
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either of
them as the holder of the Deposited Securities and (b) made generally available
to the holders of such Deposited Securities by the Company. The
Depositary shall also provide or make available to Holders copies of such
reports when furnished by the Company pursuant to Section 5.6 of the Deposit
Agreement.
The
Registrar shall keep books for the registration of ADSs which at all reasonable
times shall be open for inspection by the Company and by the Holders of such
ADSs, provided that such inspection shall not be, to the Registrar’s knowledge,
for the purpose of communicating with Holders of such ADSs in the interest of a
business or object other than the business of the Company or other than a matter
related to the Deposit Agreement or the ADSs.
A-10
The
Registrar may close the transfer books with respect to the ADSs, at any time or
from time to time, when deemed necessary or advisable by it in good faith in
connection with the performance of its duties hereunder, or at the reasonable
written request of the Company subject, in all cases, to paragraph (24) and
Section 7.8 of the Deposit Agreement.
Dated:
|
CITIBANK,
N.A.
Transfer
Agent and Registrar
|
CITIBANK,
N.A.
as
Depositary
|
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|
By:
|
|
By: |
|
|
|
Authorized
Signatory
|
Authorized
Signatory
|
|||
The
address of the Principal Office of the Depositary is 388 Greenwich Street, New
York, New York 10013, U.S.A.
A-11
[FORM
OF REVERSE OF ADR]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE DEPOSIT AGREEMENT
(14) Dividends
and Distributions in Cash, Shares, etc. Whenever the
Company intends to make a distribution of a cash dividend or other cash
distribution, the Company shall give notice thereof to the Depositary at least
twenty (20) days prior to the proposed distribution specifying, inter alia, the
record date applicable for determining the holders of Deposited Securities
entitled to receive such distribution. Upon timely receipt of such
notice, the Depositary shall establish an ADS Record Date upon the terms
described in Section 4.9 of the Deposit Agreement . Upon receipt of
confirmation from the Custodian of receipt of any cash dividend or other cash
distribution on any Deposited Securities, or upon receipt of proceeds from the
sale of any Deposited Securities or of any entitlements held in respect of
Deposited Securities under the terms of the Deposit Agreement, the Depositary
will (i) if at the time of receipt thereof any amounts received in a
Foreign Currency can in the judgment of the Depositary (upon the terms of
Section 4.8 of the Deposit Agreement), be converted on a practicable basis into
Dollars transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (upon the
terms of Section 4.8 of the Deposit Agreement), (ii) if applicable and
unless previously established, establish the ADS Record Date upon the terms
described in Section 4.9 of the Deposit Agreement, and (iii) distribute
promptly the amount thus received (net of (a) applicable fees and charges of,
and expenses incurred by, the Depositary and (b) taxes withheld) to the Holders
entitled thereto as of the ADS Record Date in proportion to the number of ADSs
held as of the ADS Record Date. The Depositary shall distribute only
such amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs outstanding at the time of the next distribution. If
the Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs representing such
Deposited Securities shall be reduced accordingly. Such withheld
amounts shall be forwarded by the Company, the Custodian or the Depositary to
the relevant governmental authority. Evidence of payment thereof by
the Company shall be forwarded by the Company to the Depositary upon
request.
A-12
Whenever
the Company intends to make a distribution that consists of a dividend in, or
free distribution of Shares, the Company shall give notice thereof to the
Depositary at least twenty (20) days prior to the proposed distribution,
specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such
distribution. Upon the timely receipt of such notice from the
Company, the Depositary shall establish an ADS Record Date upon the terms
described in Section 4.9 of the Deposit Agreement. Upon receipt of
confirmation from the Custodian of the receipt of the Shares so distributed by
the Company, the Depositary shall either (i) subject to Section 5.9 of the
Deposit Agreement, distribute to the Holders as of the ADS Record Date in
proportion to the number of ADSs held as of the ADS Record Date, additional
ADSs, which represent in the aggregate the number of Shares received as such
dividend, or free distribution, subject to the other terms of the Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, take all actions necessary so that each
ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Shares distributed upon the Deposited Securities
represented thereby (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary, and (b) taxes). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the
case may be, represented by the aggregate of such fractions, in a riskless
principal capacity in a public sale or if no public market is available, in a
private sale, and distribute the net proceeds upon the terms set forth in
Section 4.1 of the Deposit Agreement.
In the
event that the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, if the Company in the fulfillment of
its obligations under Section 5.7 of the Deposit Agreement, has furnished an
opinion of U.S. counsel determining that Shares must be registered under the
Securities Act or other laws in order to be distributed to Holders (and no such
registration statement has been declared effective), the Depositary may dispose
of all or a portion of such property (including Shares and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of (a) taxes
and (b) reasonable fees and charges of, and the expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms of Section 4.1 of the
Deposit Agreement. The Depositary shall hold and/or distribute any
unsold balance of such property in accordance with the provisions of the Deposit
Agreement.
Whenever
the Company intends to make a distribution payable at the election of the
holders of Shares in cash or in additional Shares, the Company shall give notice
thereof to the Depositary at least sixty (60) days prior to the proposed
distribution specifying, inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such elective
distribution whether or not it wishes such elective distribution to be made
available to Holders of ADSs. Upon the timely receipt of a notice
indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determinations,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADS. The Depositary shall
make such elective distribution available to Holders only if (i) the Company
shall have timely requested that the elective distribution be made available to
Holders, (ii) the Depositary shall have determined that such distribution
is reasonably practicable and (iii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7 of the Deposit
Agreement. If the above conditions are not satisfied, the Depositary
shall establish an ADS Record Date on the terms described in Section 4.9 of the
Deposit Agreement and, to the extent permitted by law, distribute to the
Holders, on the basis of the same determination as is made in the Cayman Islands
in respect of the Shares for which no election is made, either (X) cash upon the
terms described in Section 4.1 of the Deposit Agreement or (Y) additional ADSs
representing such additional Shares upon the terms described in Section 4.2 of
the Deposit Agreement. If the above conditions are satisfied, the
Depositary shall establish an ADS Record Date on the terms described in Section
4.9 of the Deposit Agreement and establish procedures to enable Holders to elect
the receipt of the proposed distribution in cash or in additional
ADSs. The Company shall assist the Depositary in establishing such
procedures to the extent necessary. If a Holder elects to receive the
proposed distribution (X) in cash, the distribution shall be made upon the terms
described in Section 4.1 of the Deposit Agreement, or (Y) in ADSs, the
distribution shall be made upon the terms described in Section 4.2 of the
Deposit Agreement. Nothing herein or in the Deposit Agreement shall
obligate the Depositary to make available to Holders a method to receive the
elective distribution in Shares (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Shares.
A-13
Whenever
the Company intends to distribute to the holders of the Deposited Securities
rights to subscribe for additional Shares, the Company shall give notice thereof
to the Depositary at least sixty (60) days prior to the proposed distribution
specifying inter alia, the record date
applicable to holders of Deposited Securities entitled to receive such
distribution and whether or not it wishes such rights to be made available to
Holders of ADSs. Upon the timely receipt of a notice indicating that
the Company wishes such rights to be made available to Holders of ADSs, the
Depositary upon consultation with the Company to determine, and the Company
shall assist the Depositary in its determination whether it is lawful and
reasonably practicable to make such rights available to the
Holders. The Depositary shall make such rights available to any
Holders only if (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received satisfactory
documentation contemplated in Section 5.7 of the Deposit Agreement, and (iii)
the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth
above are not satisfied or if the Company requests that the rights not be made
available to Holders of ADSs, the Depositary shall proceed with the sale of the
rights as contemplated in Section 4.4(b) of the Deposit Agreement. In
the event all conditions set forth above are satisfied, the Depositary shall
establish an ADS Record Date (upon the terms described in Section 4.9 of the
Deposit Agreement) and establish procedures (x) to distribute rights to
purchase additional ADSs (by means of warrants or otherwise), (y) to enable
the Holders to exercise such rights (upon payment of the subscription price and
of the applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes), and (z) to deliver ADSs upon the valid exercise
of such rights. The Company shall assist the Depositary to the extent
necessary in establishing such procedures. Nothing herein or in the
Deposit Agreement shall obligate the Depositary to make available to the Holders
a method to exercise rights to subscribe for Shares (rather than
ADSs). If (i) the Company does not timely request the Depositary to
make the rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive satisfactory
documentation within the terms of Section 5,7 of the Deposit Agreement or
determines it is not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine whether it is lawful and
reasonably practicable to sell such rights, in a riskless principal capacity, at
such place and upon such terms (including public and private sale) as it may
deem practicable. The Company shall assist the Depositary to the
extent necessary to determine such legality and practicability. The
Depositary shall, upon such sale, convert and distribute proceeds of such sale
(net of applicable (a) fees and charges of, and expenses incurred by, the
Depositary and (b) taxes) upon the terms hereof and of Section 4.1 of the
Deposit Agreement. If the Depositary is unable to make any rights
available to Holders upon the terms described in Section 4.4(a) of the Deposit
Agreement or to arrange for the sale of the rights upon the terms described in
Section 4.4(b) of the Deposit Agreement, the Depositary shall allow such rights
to lapse. The Depositary shall not be responsible for (i) any failure
to determine that it may be lawful or practicable to make such rights available
to Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale or exercise, or (iii) the
content of any materials forwarded to the ADS Holders on behalf of the Company
in connection with the rights distribution.
A-14
Notwithstanding
anything herein or in Section 4.4 of the Deposit Agreement to the contrary, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under
the Securities Act (or other applicable law) covering such offering is in effect
or (ii) unless the Company furnishes the Depositary opinion(s) of counsel
for the Company in the United States and counsel to the Company in any other
applicable country in which rights would be distributed, in each case
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws. A liquid market for rights may not exist, and this may
adversely affect (1) the ability of the Depositary to dispose of such rights or
(2) the amount the Depositary would realize upon disposal of rights. In the event that the
Company, the Depositary or the Custodian shall be required to withhold and does
withhold from any distribution of property (including rights) an amount on
account of taxes or other governmental charges, the amount distributed to the
Holders of ADSs representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any
distribution in property (including Shares and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to receive or exercise rights on the same terms and
conditions as the holders of Shares or be able to exercise such
rights. Nothing herein or in the Deposit Agreement shall obligate the
Company to file any registration statement in respect of any rights or Shares or
other securities to be acquired upon the exercise of such rights.
Whenever
the Company intends to distribute to the holders of Deposited Securities
property other than cash, Shares or rights to purchase additional Shares, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of
ADSs. Upon receipt of a notice indicating that the Company wishes
such distribution be made to Holders of ADSs, the Depositary shall consult with
the Company, and the Company shall assist the Depositary, to determine whether
such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7 of the Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution is reasonably
practicable.
A-15
Upon
receipt of satisfactory documentation and the request of the Company to
distribute property to Holders of ADSs and after making the requisite
determinations set forth in (a) above, the Depositary shall distribute the
property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including public or private sale)
as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
If (i)
the Company does not request the Depositary to make such distribution to Holders
or requests not to make such distribution to Holders, (ii) the Depositary does
not receive satisfactory documentation within the terms of Section 5.7 of the
Deposit Agreement, or (iii) the Depositary determines that all or a portion of
such distribution is not reasonably practicable, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem practicable and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of applicable
(a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes)
to the Holders as of the ADS Record Date upon the terms of Section 4.1 of the
Deposit Agreement. If the Depositary is unable to sell such property,
the Depositary may dispose of such property for the account of the Holders in
any way it deems reasonably practicable under the circumstances.
(15) Redemption. If the Company
intends to exercise any right of redemption in respect of any of the Deposited
Securities, the Company shall give notice thereof to the Depositary at least
sixty (60) days prior to the intended date of redemption which notice shall set
forth the particulars of the proposed redemption. Upon timely receipt
of (i) such notice and (ii) satisfactory documentation given by the Company to
the Depositary within the terms of Section 5.7 of the Deposit Agreement, and
only if the Depositary shall have determined that such proposed redemption is
practicable, the Depositary shall provide to each Holder a notice setting forth
the Company’s intention to exercise the redemption rights and any other
particulars set forth in the Company’s notice to the Depositary. The
Depositary shall instruct the Custodian to present to the Company the Deposited
Securities in respect of which redemption rights are being exercised against
payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, distribute the proceeds (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs, if applicable, upon delivery of such ADSs by Holders
thereof upon the terms set forth in Sections 4.1 and 6.2 of the Deposit
Agreement. If less than all outstanding Deposited Securities are
redeemed, the ADSs to be retired will be selected by lot or on a pro rata basis,
as may be determined by the Depositary. The redemption price per ADS
shall be the dollar equivalent of the per share amount received by the
Depositary (adjusted to reflect the ADS(s)-to-Share(s) ratio) upon the
redemption of the Deposited Securities represented by ADSs (subject to the terms
of Section 4.8 of the Deposit Agreement and the applicable reasonable fees and
charges of, and expenses incurred by, the Depositary, and taxes) multiplied by
the number of Deposited Securities represented by each ADS
redeemed.
A-16
(16) Fixing of
ADS Record Date. Whenever the
Depositary shall receive notice of the fixing of a record date by the Company
for the determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Shares, rights or other distribution), or
whenever for any reason the Depositary causes a change in the number of Shares
that are represented by each ADS, or whenever the Depositary shall receive
notice of any meeting of, or solicitation of consents or proxies of, holders of
Shares or other Deposited Securities, or whenever the Depositary shall find it
necessary or convenient in connection with the giving of any notice,
solicitation of any consent or any other matter, the Depositary shall fix a
record date (“ADS
Record Date”) for the determination of the Holders of ADSs who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, to give or withhold such consent, to receive
such notice or solicitation or to otherwise take action, or to exercise the
rights of Holders with respect to such changed number of Shares represented by
each ADS. The Depositary shall make reasonable efforts to establish
the ADS Record Date as closely as possible to the applicable record date for the
Deposited Securities (if any) set by the Company in the Cayman
Islands. Subject to applicable law and the terms and conditions of
this ADR and Sections 4.1 through 4.8 and to the other terms and conditions of
the Deposit Agreement, only the Holders of ADSs at the close of business in New
York on such ADS Record Date shall be entitled to receive such distributions, to
give such instructions, to receive such notice or solicitation, or otherwise
take action.
(17) Voting of
Deposited Securities. As
soon as practicable after receipt of notice of any meeting at which the holders
of Deposited Securities are entitled to vote, or of solicitation of consents or
proxies from holders of Deposited Securities, the Depositary shall fix the ADS
Record Date in respect of such meeting or solicitation of consent or proxy in
accordance with Section 4.9 of the Deposit Agreement. The Depositary
shall, if requested by the Company in writing in a timely manner (the Depositary
having no obligation to take any further action if the request shall not have
been received by the Depositary at least thirty (30) days prior to the date of
such vote or meeting), at the Company’s expense and provided no U.S. legal
prohibitions exist, distribute to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxy, (b) a statement that the
Holders at the close of business on the ADS Record Date will be entitled,
subject to any applicable law, the provisions of the Deposit Agreement, the
Articles of Association of the Company and the provisions of or governing the
Deposited Securities (which provisions, if any, shall be summarized in pertinent
part by the Company), to instruct the Depositary as to the exercise of the
voting rights, if any, pertaining to the Deposited Securities represented by
such Holder’s ADSs, and (c) a brief statement as to the manner in which such
voting instructions may be given to the Depositary or in which voting
instructions may be deemed to have been given in accordance with Section 4.10 of
the Depositary if no instructions are received prior to the deadline set for
such purposes to the Depositary to give a discretionary proxy to a person
designated by the Company.
A-17
Notwithstanding anything contained in
the Deposit Agreement or any ADR, the Depositary may, to the extent not
prohibited by law or regulations, or by the requirements of the stock exchange
on which the ADSs are listed, in lieu of distribution of the materials provided
to the Depositary in connection with any meeting of, or solicitation of consents
or proxies from, holders of Deposited Securities, distribute to the Holders a
notice that provides Holders with, or otherwise publicize to Holders,
instructions on how to retrieve such materials or receive such materials upon
request (i.e., by
reference to a website containing the materials for retrieval or a contact for
requesting copies of the materials).
The Depositary has been
advised by the Company that under the Cayman Islands law as in effect as of the
date of the Deposit Agreement, voting at any meeting of shareholders is by show
of hands unless a poll is demanded. The Depositary will not join in
demanding a poll, whether or not requested to do so by Holders of
ADSs. The Company has informed the Depositary that under the Articles
of Association of the Company (as in effect on the date of the Deposit
Agreement) a poll may be demanded by (i) the chairman of the meeting,
(ii) at least three shareholders present in person or in the case of a
shareholder being a corporation by its duly authorized representative or by
proxy for the time being entitled to vote at the meeting, (iii) any shareholder
or shareholders present in person or in the case of a shareholder being a
corporation by its duly authorized representative or by proxy and representing
not less than one-tenth of the total voting rights of all shareholders having
the right to vote at the meeting, (iv) by a shareholder or shareholders present
in person or in the case of a shareholder being a corporation by its duly
authorized representative or by proxy and holding Shares in the Company
conferring a right to vote at a meeting being Shares on which an aggregate sum
has been paid up equal to not less than one-tenth of the total sum paid on all
shares conferring that right, or (v) if required by the rules of the [Nasdaq Global Select Market],
by any director or directors of the Company who, individually or collectively,
hold proxies in respect of Shares representing 5% or more of the total voting
rights at such meeting.
Voting
instructions may be given only in respect of a number of ADSs representing an
integral number of Deposited Securities. Upon the timely receipt from
a Holder of ADSs as of the ADS Record Date of voting instructions in the manner
specified by the Depositary, the Depositary shall endeavor, insofar as
practicable and permitted under applicable law, the provisions of the Deposit
Agreement, Articles of Association of the Company and the provisions of the
Deposited Securities, to vote, or cause the Custodian to vote, the Deposited
Securities (in person or by proxy) represented by such Holder’s ADSs as
follows: In the event voting takes place at a shareholders’ meeting
by show of hands, the Depositary will instruct the Custodian to vote all
Deposited Securities in accordance with the voting instructions received from a
majority of Holders of ADSs who provided voting instructions. In the
event voting takes place at a shareholders’ meeting by poll, the Depositary will
instruct the Custodian to vote the Deposited Securities in accordance with the
voting instructions received from the Holders of ADSs. If voting is
by poll and the Depositary does not receive instructions from a Holder as of the
ADS Record Date on or before the date established by the Depositary for such
purpose, such Holder shall be deemed, and the Depositary shall deem such Holder,
to have instructed the Depositary to give a discretionary proxy to a person
designated by the Company to vote the Deposited Securities; provided, however,
that no such discretionary proxy shall be given by the Depositary with respect
to any matter to be voted upon as to which the Company informs the Depositary
that (i) the Company does not wish such proxy to be given, (ii) substantial
opposition exists, or (iii) the rights of holders of Deposited Securities may be
adversely affected.
A-18
Neither
the Depositary nor the Custodian shall under any circumstances exercise any
discretion as to voting and neither the Depositary nor the Custodian shall vote,
attempt to exercise the right to vote, or in any way make use of for purposes of
establishing a quorum or otherwise, the Deposited Securities represented by
ADSs, except pursuant to and in accordance with the voting instructions timely
received from Holders or as otherwise contemplated herein. If the
Depositary timely receives voting instructions from a Holder which fail to
specify the manner in which the Depositary is to vote the Deposited Securities
represented by such Holder’s ADSs, the Depositary will deem such Holder (unless
otherwise specified in the notice distributed to Holders) to have instructed the
Depositary to vote in favor of the items set forth in such voting
instructions. Deposited Securities represented by ADSs for which no
timely voting instructions are received by the Depositary from the Holder shall
not be voted (except (i) in the case voting is by show of hands, in which case
the Depositary will instruct the Custodian to vote all Deposited Securities in
accordance with the voting instructions received from a majority of Holders of
ADSs who provided voting instructions and (ii) as contemplated in Section 4.10
of the Deposit Agreement). Notwithstanding anything else contained
herein or in the Deposit Agreement, the Depositary shall, if so requested in
writing by the Company, represent all Deposited Securities (whether or not
voting instructions have been received in respect of such Deposited Securities
from Holders as of the ADS Record Date) for the sole purpose of establishing
quorum at a meeting of shareholders.
Notwithstanding
anything else contained in the Deposit Agreement or any ADR, the Depositary
shall not have any obligation to take any action with respect to any meeting, or
solicitation of consents or proxies, of holders of Deposited Securities if the
taking of such action would violate U.S. laws. The Company agrees to
take any and all actions reasonably necessary to enable Holders and Beneficial
Owners to exercise the voting rights accruing to the Deposited Securities and to
deliver to the Depositary an opinion of U.S. counsel addressing any actions
requested to be taken if so requested by the Depositary. There can be
no assurance that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable the Holder to return
voting instructions to the Depositary in a timely manner.
(18) Changes
Affecting Deposited Securities. Upon any change
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger, consolidation or sale of assets affecting the Company or
to which it is a party, any securities which shall be received by the Depositary
or the Custodian in exchange for, or in conversion of or replacement of or
otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the ADRs shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. In giving effect to such change,
split-up, cancellation, consolidation or other reclassification of Deposited
Securities, recapitalization, reorganization, merger, consolidation or sale of
assets, the Depositary may, with the Company’s approval, and shall, if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company satisfactory to the Depositary
that such actions are not in violation of any applicable laws or regulations,
(i) issue and deliver additional ADSs as in the case of a stock dividend on
the Shares, (ii) amend the Deposit Agreement and the applicable ADRs, (iii)
amend the applicable Registration Statement(s) on Form F-6 as filed with the
Commission in respect of the ADSs, (iv) call for the surrender of
outstanding ADRs to be exchanged for new ADRs, and (v) take such other actions
as are appropriate to reflect the transaction with respect to the
ADSs. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit the
issuance of such new form of ADRs. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some
or all Holders, the Depositary may, with the Company’s approval, and shall, if
the Company requests, subject to receipt of an opinion of Company’s counsel
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, sell such securities at public or private sale,
at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of (a) reasonable fees and charges
of, and expenses incurred by, the Depositary and (b) taxes) for the account of
the Holders otherwise entitled to such securities upon an averaged or other
practicable basis without regard to any distinctions among such Holders and
distribute the net proceeds so allocated to the extent practicable as in the
case of a distribution received in cash pursuant to Section 4.1 of the Deposit
Agreement. The Depositary shall not be responsible for (i) any
failure to determine that it may be lawful or practicable to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
A-19
(19) Exoneration. Neither the
Depositary nor the Company shall be obligated to do or perform any act which is
inconsistent with the provisions of the Deposit Agreement or incur any liability
(i) if the Depositary or the Company shall be prevented or forbidden from, or
delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement and this ADR, by reason of any provision of any present or
future law or regulation of the United States, the Cayman Islands or any other
country, or of any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint, or by reason of any provision, present or future, of the Articles of
Association of the Company or any provision of or governing any Deposited
Securities, or by reason of any act of God or war or other circumstances beyond
its control (including, without limitation, nationalization, expropriation,
currency restrictions, work stoppage, strikes, civil unrest, acts of terrorism,
revolutions, rebellions, explosions and computer failure), (ii) by reason of any
exercise of, or failure to exercise, any discretion provided for in the Deposit
Agreement or in the Articles of Association of the Company or provisions of or
governing Deposited Securities, (iii) for any action or inaction in reliance
upon the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for the inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of the Deposit Agreement, made available to Holders of ADSs or
(v) for any consequential or punitive damages for any breach of the terms of the
Deposit Agreement. The Depositary, its controlling persons, its
agents, any Custodian and the Company, its controlling persons and its agents
may rely and shall be protected in acting upon any written notice, request or
other document believed by it to be genuine and to have been signed or presented
by the proper party or parties. No disclaimer of liability under the
Securities Act is intended by any provision of the Deposit Agreement or this
ADR.
A-20
(20) Standard
of Care. The Company and
the Depositary assume no obligation and shall not be subject to any liability
under the Deposit Agreement or this ADR to any Holder(s) or Beneficial Owner(s),
except that the Company and Depositary agree to perform their respective
obligations specifically set forth in the Deposit Agreement and this ADR without
negligence or bad faith. Without limitation of the foregoing, neither
the Depositary, nor the Company, nor any of their respective controlling
persons, or agents, shall be under any obligation to appear in, prosecute or
defend any action, suit or other proceeding in respect of any Deposited
Securities or in respect of the ADSs, which in its opinion may involve it in
expense or liability, unless indemnity satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnished as
often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary). The Depositary and its agents shall
not be liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of the Deposit Agreement. The Depositary
shall not incur any liability for any failure to determine that any distribution
or action may be lawful or reasonably practicable, for the content of any
information submitted to it by the Company for distribution to the Holders or
for any inaccuracy of any translation thereof, for any investment risk
associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of the Deposit Agreement, for the failure or timeliness of any notice from
the Company, or for any action or failure to act by, or any information provided
or not provided by, DTC or any DTC participant.
(21) Resignation
and Removal of the Depositary; Appointment of Successor Depositary. The Depositary
may at any time resign as Depositary under the Deposit Agreement by written
notice of resignation delivered to the Company, such resignation to be effective
on the earlier of (i) the 90th day after delivery thereof to the Company
(whereupon the Depositary shall be entitled to take the actions contemplated in
Section 6.2 of the Deposit Agreement), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may at any time be
removed by the Company by written notice of such removal, which removal shall be
effective on the later of (i) the 90th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as provided in the Deposit Agreement. In case at any time
the Depositary acting hereunder shall resign or be removed, the Company shall
use 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 be required by the Company to
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its predecessor (other than as contemplated in Sections 5.8 and
5.9 of the Deposit Agreement). The predecessor depositary, upon
payment of all sums due it and on the written request of the Company shall,
(i) execute and deliver an instrument transferring to such successor all
rights and powers of such predecessor hereunder (other than as contemplated in
Sections 5.8 and 5.9 of the Deposit Agreement), (ii) duly assign, transfer and
deliver all right, title and interest to the Deposited Securities to such
successor, and (iii) deliver to such successor a list of the Holders of all
outstanding ADSs and such other information relating to ADSs and Holders thereof
as the successor may reasonably request. Any such successor depositary shall
promptly provide notice of its appointment to such Holders. Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing of any
document or any further act.
A-21
(22) Amendment/Supplement. Subject to the
terms and conditions of this paragraph 22 and Section 6.1 of the Deposit
Agreement, and applicable law, this ADR and any provisions of the Deposit
Agreement may at any time and from time to time be amended or supplemented by
written agreement between the Company and the Depositary in any respect which
they may deem necessary or desirable without the prior written consent of the
Holders or Beneficial Owners. Any amendment or supplement which shall
impose or increase any fees or charges (other than charges in connection with
foreign exchange control regulations, and taxes and other governmental charges,
delivery and other such expenses), or which shall otherwise materially prejudice
any substantial existing right of Holders or Beneficial Owners, shall not,
however, become effective as to outstanding ADSs until the expiration of thirty
(30) days after notice of such amendment or supplement shall have been given to
the Holders of outstanding ADSs. Notice of any amendment to the
Deposit Agreement or any ADR shall not need to describe in detail the specific
amendments effectuated thereby, and failure to describe the specific amendments
in any such notice shall not render such notice invalid, provided, however, that, in
each such case, the notice given to the Holders identifies a means for Holders
and Beneficial Owners to retrieve or receive the text of such amendment (i.e., upon retrieval from the
Commission’s, the Depositary’s or the Company’s website or upon request from the
Depositary). The parties hereto agree that any amendments or
supplements which (i) are reasonably necessary (as agreed by the Company and the
Depositary) in order for (a) the ADSs to be registered on Form F-6 under the
Securities Act or (b) the ADSs to be settled solely in electronic book-entry
form and (ii) do not in either such case impose or increase any fees or charges
to be borne by Holders, shall be deemed not to materially prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such ADSs, to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement and this ADR,
if applicable, as amended or supplemented thereby. In no event shall
any amendment or supplement impair the right of the Holder to surrender such ADS
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable
law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment of, or
supplement to, the Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement the Deposit Agreement and this ADR at
any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement
and this ADR in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, rules or regulations.
A-22
(23) Termination. The Depositary
shall, at any time at the written direction of the Company, terminate the
Deposit Agreement by distributing notice of such termination to the Holders of
all ADSs then outstanding at least thirty (30) days prior to the date fixed in
such notice for such termination. If ninety (90) days shall have
expired after (i) the Depositary shall have delivered to the Company a written
notice of its election to resign, or (ii) the Company shall have delivered to
the Depositary a written notice of the removal of the Depositary, and, in either
case, a successor depositary shall not have been appointed and accepted its
appointment as provided in Section 5.4 of the Deposit Agreement, the Depositary
may terminate the Deposit Agreement by distributing notice of such termination
to the Holders of all ADSs then outstanding at least thirty (30) days prior to
the date fixed in such notice for such termination. The date so fixed
for termination of the Deposit Agreement in any termination notice so
distributed by the Depositary to the Holders of ADSs is referred to as the
“Termination
Date”. Until the Termination Date, the Depositary shall
continue to perform all of its obligations under the Deposit Agreement, and the
Holders and Beneficial Owners will be entitled to all of their rights under the
Deposit Agreement. If any ADSs shall remain outstanding after the
Termination Date, the Registrar and the Depositary shall not, after the
Termination Date, have any obligation to perform any further acts under the
Deposit Agreement, except that the Depositary shall, subject, in each case, to
the terms and conditions of the Deposit Agreement, continue to (i) collect
dividends and other distributions pertaining to Deposited Securities, (ii) sell
securities and other property received in respect of Deposited Securities, (iii)
deliver Deposited Securities, together with any dividends or other distributions
received with respect thereto and the net proceeds of the sale of any securities
or other property, in exchange for ADSs surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the fees and charges
of, and expenses incurred by, the Depositary, and all applicable taxes or
governmental charges for the account of the Holders and Beneficial Owners, in
each case upon the terms set forth in Section 5.9 of the Deposit Agreement), and
(iv) take such actions as may be required under applicable law in connection
with its role as Depositary under the Deposit Agreement. At any time
after the Termination Date, the Depositary may sell the Deposited Securities
then held under the Deposit Agreement and shall after such sale hold un-invested
the net proceeds of such sale, together with any other cash then held by it
under the Deposit Agreement, in an un-segregated account and without liability
for interest, for the pro - rata benefit of the Holders whose ADSs have not
theretofore been surrendered. After making such sale, the Depositary
shall be discharged from all obligations under the Deposit Agreement except (i)
to account for such net proceeds and other cash (after deducting, or charging,
as the case may be, in each case, the fees and charges of, and expenses incurred
by, the Depositary, and all applicable taxes or governmental charges for the
account of the Holders and Beneficial Owners, in each case upon the terms set
forth in Section 5.9 of the Deposit Agreement), and (ii) as may be required at
law in connection with the termination of the Deposit
Agreement. After the Termination Date, the Company shall be
discharged from all obligations under the Deposit Agreement, except for its
obligations to the Depositary under Sections 5.8, 5.9 and 7.6 of the Deposit
Agreement. The obligations under the terms of the Deposit Agreement
of Holders and Beneficial Owners of ADSs outstanding as of the Termination Date
shall survive the Termination Date and shall be discharged only when the
applicable ADSs are presented by their Holders to the Depositary for
cancellation under the terms of the Deposit Agreement.
A-23
(24) Compliance
with U.S. Securities Laws. Notwithstanding
any provisions in this ADR or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
(25) Certain
Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this paragraph (25) and Section 5.10 of the
Deposit Agreement, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary
shall not lend Shares or ADSs; provided, however, that the
Depositary may (i) issue ADSs prior to the receipt of Shares pursuant to Section
2.3 (a "Pre-Release
Transaction") of the Deposit Agreement and (ii) Deliver Shares prior to
the receipt and cancellation of ADSs by the Depositary, but only where the
person or entity (the "Pre-Cancellation
Applicant") to whom shares are to be Delivered represents to the
Depositary that it is in the process of Delivering ADSs to the Depositary for
cancellation pursuant to Section 2.7 of the Deposit Agreement (a "Pre-Cancellation
Transaction"). The Depositary may receive ADSs in lieu of
Shares under (i) above. Each such Pre-Release Transaction will be (a)
subject to a written agreement whereby the person or entity (the “Pre-Release Applicant”) to whom
ADSs are to be Delivered (w) represents that at the time of the Pre-Release
Transaction the Pre-Release Applicant or its customer owns the Shares that are
to be Delivered by the Pre-Release Applicant under such Pre-Release Transaction,
(x) agrees to indicate the Depositary as owner of such Shares in its records and
to hold such Shares in trust for the Depositary until such Shares are Delivered
to the Depositary or the Custodian, (y) unconditionally guarantees to Deliver
such Shares to the Depositary or the Custodian as applicable, and (z) agrees to
any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days’ notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. Each Pre-Cancellation Transaction will be (a)
subject to a written agreement whereby the Pre-Cancellation Applicant (w)
represents that at the time of the Pre-Cancellation Transaction the
Pre-Cancellation Applicant owns the ADSs (the “Pre-Cancellation
ADSs”) that are to be Delivered by the Pre-Cancellation Applicant under
such Pre-Cancellation Transaction, (x) agrees to indicate the Depositary as
owner of such ADSs in its records and to hold such ADSs in trust for the
Depositary until such ADSs are Delivered to the Depositary or the Custodian, (y)
unconditionally guarantees to Deliver such ADSs to the Depositary, and (z)
agrees to any additional restrictions or requirements that the Depositary deems
appropriate, (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate, (c)
terminable by the Depositary on not more than five (5) business days’ notice and
(d) subject to such further indemnities and credit regulations as the Depositary
deems appropriate. The Depositary will normally limit the aggregate
number of ADSs involved in Pre-Release Transactions and Pre-Cancellation
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding as a result of Pre-Release
Transactions and Pre-Cancellation Transactions), 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 also set limits with
respect to the number of ADSs and Shares involved in Pre-Release Transactions
and Pre-Cancellation Transactions with any one person on a case-by-case basis as
it deems appropriate. The Depositary may retain for its own account
any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to the Pre-Release
Transactions and Pre-Cancellation Transactions above, but not earnings thereon,
shall be held for the benefit of the Holders (other than the Pre-Release
Applicant or Pre-Cancellation Applicant).
A-24
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
________________, the within ADS and all rights thereunder, hereby irrevocably
constituting and appointing ________________________ attorney-in-fact to
transfer said ADS on the books of the Depositary with full power of substitution
in the premises.
|
Dated:
|
Name:
|
||
|
By:
|
|||
|
Title:
|
|||
|
NOTICE:
The signature of the Holder to this assignment must correspond with the
name as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatsoever.
|
|||
|
If
the endorsement be executed by an attorney, executor, administrator,
trustee or guardian, the person executing the endorsement must give
his/her full title in such capacity and proper evidence of authority to
act in such capacity, if not on file with the Depositary, must be
forwarded with this
ADR.
|
|||
|
__________________________
SIGNATURE
GUARANTEED
|
|||
|
All
endorsements or assignments of ADRs must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer
Association,
Inc.
|
|||
Legends
[The
ADRs issued in respect of Partial Entitlement American Depositary Shares shall
bear the following legend on the face of the ADR: “This ADR evidences
ADSs representing ‘partial entitlement’ common shares of China
Lodging Group, Limited and as such do not entitle the holders thereof to the
same per-share entitlement as other common shares (which are ‘full entitlement’
common shares) issued and outstanding at such time. The ADSs
represented by this ADR shall entitle holders to distributions and entitlements
identical to other ADSs when the common shares represented by such ADSs become
‘full entitlement’ common shares.”]
A-25
EXHIBIT
B
FEE
SCHEDULE
DEPOSITARY
FEES AND RELATED CHARGES
All
capitalized terms used but not otherwise defined herein shall have the meaning
given to such terms in the Deposit Agreement.
|
I.
|
Depositary
Fees
|
The
Company, the Holders, the Beneficial Owners and the persons depositing Shares or
surrendering ADSs for cancellation agree to pay the following fees of the
Depositary:
| Service |
Rate
|
By
Whom Paid
|
|
| (1) |
Issuance
of ADSs upon deposit of Shares (excluding issuances as a result of
distributions described in paragraph (4) below).
|
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof) issued.
|
Person
depositing Shares or person receiving ADSs.
|
| (2) |
Delivery
of Deposited Securities against surrender of ADSs.
|
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof)
surrendered.
|
Person
surrendering ADSs for the purpose of withdrawal of Deposited Securities or
person to whom Deposited Securities are delivered.
|
| (3) |
Distribution
of cash dividends or other cash distributions (i.e., sale of rights
and other entitlements).
|
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof) held.
|
Person
to whom distribution is made.
|
| (4) |
Distribution
of ADSs pursuant to (i) stock dividends or other free stock distributions,
or (ii) exercise of rights to purchase additional
ADSs.
|
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof) held.
|
Person
to whom distribution is made.
|
| (5) |
Distribution
of securities other than ADSs or rights to purchase additional ADSs (i.e., spin-off
shares).
|
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof) held.
|
Person
to whom distribution is made.
|
| (6) |
Depositary
Services.
|
Up
to U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable
record date(s) established by the Depositary.
|
Person
holding ADSs on the applicable record date(s) established by the
Depositary.
|
B-1
|
II.
|
Charges
|
Holders,
Beneficial Owners, persons depositing Shares and persons surrendering ADSs for
cancellation and for the purpose of withdrawing Deposited Securities shall be
responsible for the following charges:
|
(i)
|
taxes
(including applicable interest and penalties) and other governmental
charges;
|
|
(ii)
|
such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share register
and applicable to transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals,
respectively;
|
|
(iii)
|
such
cable, telex and facsimile transmission and delivery expenses as are
expressly provided in the Deposit Agreement to be at the expense of the
person depositing or withdrawing Shares or Holders and Beneficial Owners
of ADSs;
|
|
(iv)
|
the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
|
|
(v)
|
such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and ADRs;
and
|
|
(vi)
|
the
fees and expenses incurred by the Depositary, the Custodian, or any
nominee in connection with the servicing or delivery of Deposited
Securities.
|
B-2
Exhibit
(d)
March 11,
2010
Citibank,
N.A. – ADR Department
388
Greenwich Street
New York,
New York 10013
Ladies
and Gentlemen:
We refer
to the Registration Statement on Form F-6 (the “Registration
Statement”) to be filed with the Securities and Exchange Commission (the
“SEC”) by the
legal entity to be created by the Deposit Agreement (as hereinafter defined) for
the purpose of registering under the United States Securities Act of 1933, as
amended (the “Securities Act”),
100,000,000 American Depositary Shares (the “ADSs”) to be issued
under the Deposit Agreement, by and among Citibank, N.A., as Depositary, China
Lodging Group, Limited, a company incorporated under the laws of the Cayman
Islands (the “Company”), and all
Holders and Beneficial Owners (each as defined in the Deposit Agreement and
hereinafter used as so defined) from time to time of ADSs issued thereunder, a
draft copy of which is being filed as Exhibit (a) to the Registration Statement
(the “Deposit
Agreement”). Each ADS will represent, subject to the terms and
conditions of the Deposit Agreement and, if applicable, the American Depositary
Receipt (“ADR”)
representing such ADS, the right to receive four (4) ordinary shares, of the Company (the “Shares”).
Nothing
contained herein or in any document referred to herein is intended by this firm
to be used, and the addressees hereof cannot use anything contained herein or in
any document referred to herein, as “tax advice” (within the meaning given to
such term by the United States Internal Revenue Service (“IRS”) in IRS Circular
230 and any related interpretative advice issued by the IRS in respect of IRS
Circular 230 prior to the date hereof, and hereinafter used within such meaning
and interpretative advice). Without admitting that anything contained
herein or in any document referred to herein constitutes “tax advice” for any
purpose, notice is hereby given that, to the extent anything contained herein or
in any document referred to herein constitutes, or is or may be interpreted by
any court, by the IRS or by any other administrative body to constitute, “tax
advice,” such “tax advice” is not intended or written to be used, and cannot be
used, for the purpose of (i) avoiding penalties under the United States
Internal Revenue Code of 1986, as amended, or (ii) promoting, marketing or
recommending to any party any transaction or matter addressed
herein.
Assuming
that, at the time of their issuance, the Registration Statement will have been
declared effective by the SEC, the Deposit Agreement will have been duly
executed and delivered, and the Shares will have been legally issued, we are of
the opinion that the ADSs, when issued in accordance with the terms of the
Deposit Agreement and the Registration Statement, will be legally issued and
will entitle the Holders to the rights specified in the Deposit Agreement and,
if applicable, the ADR(s) evidencing the ADS(s).
This
opinion is limited to the laws of the State of New York and the Federal laws of
the United States. Without admitting that we are within the category
of persons whose consent is required under Section 7 of the Securities Act,
we hereby consent to the use of this opinion as Exhibit (d) to the Registration
Statement.
|
Very
truly yours,
PATTERSON BELKNAP WEBB &
TYLER LLP
|
|||
|
|
By:
|
/s/
Herman H. Raspe
|
|
|
A
Member of the Firm
|
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