INDEX TO EXHIBITS
Sequentially
Exhibit Number Numbered Page
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(a)(2) Supplemental Agreement to Deposit Agreement,
dated as of June 5, 2007, between the Company and
Deutsche Bank Trust Company Americas, as
depositary (the "Depositary") (including the form
of American Depositary Receipt to be issued
thereunder, attached as Exhibit A and B thereto).
SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT
SUPPLEMENTAL AGREEMENT TO DEPOSIT AGREEMENT, dated as of June 5, 2007 (this
"Agreement"), to the Deposit Agreement (as defined below), by and among New
Oriental Education & Technology Group Inc., a company incorporated and existing
under the laws of the Cayman Islands, and its successors (the "Company"),
Deutsche Bank Trust Company Americas, a New York banking corporation and an
indirect wholly owned subsidiary of Deutsche Bank AG, in its capacity as
depositary (the "Depositary"), and all Holders and Beneficial Owners from time
to time of American Depositary Shares evidenced by American Depositary Receipts
issued thereunder (as defined in the Deposit Agreement).
W I T N E S S E T H T H A T:
WHEREAS, the Company and the Depositary entered into a Deposit Agreement,
dated as of September 12, 2006 (the "Deposit Agreement"), for the purposes set
forth therein;
WHEREAS, the Company and the Depositary desire to amend and supplement the
Receipts and the form of Receipt, in accordance with Section 6.01 of the Deposit
Agreement to reflect changes to the fees and charges of the Depositary.
NOW, THEREFORE, the Company and the Depositary hereby amend and supplement
the Receipts and the form of Receipt, effective as of the Effective Date, as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions Generally. Unless otherwise defined in this
Agreement, terms used herein and defined in the Deposit Agreement are used
herein as so defined.
ARTICLE II
AMENDMENTS TO RECEIPTS AND FORM OF RECEIPT
SECTION 2.01 The Receipts are herby amended and supplemented by replacing
Condition 9(v) in its entirety with the following:
for the operation and maintenance costs in administering the ADSs an annual
fee of U.S.$0.02 or less per ADS: provided, however, that if the Depositary
imposes a fee under this clause (v), then the total of fees assessed under
this clause (v), combined with the total of fees assessed under clause
(iii) above, shall not exceed U.S.$0.02 per ADS in any calendar year; and
SECTION 2.02 The Receipts are herby amended and supplemented by replacing
Condition 9(vi) in its entirety with the following:
in connection with inspections of the relevant share register maintained by
the local registrar, if applicable undertaken by the Depositary, the
Custodian or their respective agents: an annual fee of U.S.$0.01 or less
per ADS (such fee to be assessed against Holders of record as of the date
or dates set by the Depositary as it sees fit and collected at the sole
discretion of the Depositary by billing such Holders for such fee or by
deducting such fee from one or more cash dividends or other cash
distributions).
SECTION 2.03 The Receipts are herby amended and supplemented by replacing
the fourth paragraph of Condition 13 in its entirety with the following:
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms
described in the Deposit Agreement, the Depositary shall, upon provision of
all documentation required under the Deposit Agreement, (including, without
limitation, any legal opinions of counsel the Depositary may request under
the Deposit Agreement) determine whether such distribution is lawful and
reasonably practicable. If so, the Depositary shall, subject to the terms
and conditions of the Deposit Agreement, establish an ADS Record Date
according to Article (14) hereof and establish procedures to enable the
Holder hereof to elect to receive the proposed distribution in cash or in
additional ADSs. If a Holder elects to receive the distribution in cash,
the dividend shall be distributed as in the case of a distribution in cash.
If the Holder hereof elects to receive the distribution in additional ADSs,
the distribution shall be distributed as in the case of a distribution in
Shares upon the terms described in the Deposit Agreement. If such elective
distribution is not lawful or reasonably practicable or if the Depositary
did not receive satisfactory documentation set forth in the Deposit
Agreement, the Depositary shall, to the extent permitted by law, distribute
to 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 or (y) additional ADSs representing such additional Shares, in each
case, upon the terms described in the Deposit Agreement. Nothing herein
shall obligate the Depositary to make available to the Holder hereof 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.
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SECTION 2.04 The form of Receipt attached as Exhibits A and B to the
Deposit Agreement is amended and restated in its entirety to read as Exhibits A
and B attached hereto, with such amendments reflecting the amended fees and
charges of the Depositary in Condition 9.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 REPRESENTATIONS AND WARRANTIES. The Company and the
Depositary mutually represent and warrant to each other and to the Holders, that
this Agreement, when executed and delivered by each of the Company and the
Depositary, and the Deposit Agreement, as amended and supplemented by this
Agreement and all other documentation executed and delivered by the Company and
the Depositary in connection therewith, will be duly and validly authorized,
executed and delivered by the Company and the Depositary, and constitute the
legal, valid and binding obligations of the Company and the Depositary,
enforceable against the Company and the Depositary in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01 EFFECTIVE DATE. This Agreement is dated as of the date first
set forth above and shall be effective on the date on which the U.S. Securities
and Exchange Commission declares effective the Registration Statement on Form
F-6/A to be filed by the Depositary, on behalf of the legal entity created by
the Deposit Agreement, as amended and supplemented by this Agreement (the
"Effective Date"). From and after the Effective Date, all references in the
Deposit Agreement, the Receipts and the form of Receipt shall be deemed to be
references to the Deposit Agreement, the Receipts and the form of Receipt, as
amended and supplemented by this Agreement.
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SECTION 4.02 OUTSTANDING RECEIPTS. Receipts issued prior to the date
hereof, which do not reflect the changes to the Receipts effected hereby, do not
need to be called in for exchange and may remain outstanding until such time as
the Holders thereof choose to surrender them for any reason under the Deposit
Agreement, as amended and supplemented by this Agreement. The Depositary is
authorized and directed to take any and all actions deemed necessary to effect
the foregoing.
The Company hereby instructs the Depositary (i) to promptly send notice of
the execution of the Deposit Agreement, as amended and supplemented by this
Agreement, to all holders of American Depositary Receipts outstanding under the
Deposit Agreement as of the date hereof and (ii) to promptly inform holders of
American Depositary Receipts outstanding under the Deposit Agreement as of the
date hereof that they have the opportunity, but are not required, to exchange
their Receipts for one or more Receipts issued pursuant to the Deposit
Agreement, as amended and supplemented by this Agreement.
Holders and Beneficial Owners of Receipts issued pursuant to the Deposit
Agreement issued prior to the date hereof and outstanding as of the date hereof,
shall, from and after the date hereof, be deemed Holders and Beneficial Owners
of Receipts issued pursuant and subject to all of the terms and conditions of
the Deposit Agreement, as amended and supplemented by this Agreement, in all
respects, provided, however, that any amendment to the Deposit Agreement
effectuated by this Agreement that prejudices any substantial existing right of
Holders or Beneficial Owners of Receipts issued under the Deposit Agreement
shall not become effective as to Holders and Beneficial Owners until 30 days
after notice of the amendment and supplement effectuated by this Agreement shall
have been given to holders of Receipts outstanding as of the date hereof.
SECTION 4.03 UNDERTAKING OF DEPOSITARY. The Depositary hereby undertakes
promptly to mail notice of the amendments set out in this Agreement to the
Holders of Receipts outstanding as of the date hereof.
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SECTION 4.04 INDEMNIFICATION. The parties hereto shall be entitled to the
benefits of the indemnification provisions of Section 5.8 of the Deposit
Agreement in connection with any and all liability it or they may incur as a
result of the terms of this Agreement and the amendments contemplated herein.
Nothing herein shall obligate Deutsche Bank Trust Company Americas to indemnify
or hold harmless the Company or any of its directors, employees, agents and
affiliates for any liability or expense arising out of acts performed or omitted
by the Custodian or its directors, employees, agents and affiliates.
SECTION 4.05 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.
SECTION 4.06 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this Agreement to
be executed by their respective representatives thereunto duly authorized as of
the date set forth above.
NEW ORIENTAL EDUCATION & TECHNOLOGY
GROUP INC., as the Company
By: /s/ Michael Minhong Yu
---------------------------------------
Name: Michael Minhong Yu
Title: Chairman and Chief Executive Officer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Depositary
By: /s/ Tom Murphy
---------------------------------
Name: Tom Murphy
Title: Vice President
By: /s/ Jeff Margolick
---------------------------------
Name: Jeff Margolick
Title: Director
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EXHIBIT A
[FORM OF FACE OF RECEIPT]
Number CUSIP Number________
American Depositary
Shares (Each American
Depositary Share
representing four Fully
Paid Common Shares)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
Of
NEW ORIENTAL EDUCATION & TECHNOLOGY GROUP INC.
(Incorporated under the laws of the Cayman Islands)
DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary (herein called the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited common
shares, each of Par Value of $0.01 including evidence of rights to receive such
ordinary shares (the "Shares") of New Oriental Education & Technology Group Inc.
(the "Company"), a company incorporated under the laws of the Cayman Islands
(the "Company"). As of the date of the Deposit Agreement (hereinafter referred
to), each ADS represents four Shares deposited under the Deposit Agreement with
the Custodian which at the date of execution of the Deposit Agreement is
Deutsche Bank AG, Hong Kong Branch (the "Custodian"). The ratio of Depositary
Shares to shares of stock is subject to subsequent amendment as provided in
Article IV of the Deposit Agreement. The Depositary's Principal Office is
located at 60 Wall Street, New York, New York 10005, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of an
issue of American Depositary Receipts ("Receipts"), all issued and to be issued
upon the terms and conditions set forth in the Deposit Agreement, dated as of
September 12, 2006 (as amended 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 Receipts issued thereunder, each of whom by accepting a
Receipt agrees to become a party thereto and becomes bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of Receipts 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, other 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 the Custodian.
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Each owner 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 Receipt are summaries
of certain provisions of the Deposit Agreement and the Company's Memorandum and
Articles of Association (as in effect on the date of the Deposit Agreement) and
are qualified by and subject to the detailed provisions of the Deposit
Agreement, 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 American Depositary Shares into DTC. Each
Beneficial Owner of American Depositary Shares 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 American Depositary Shares. The Receipt evidencing
the American Depositary Shares held through DTC will be registered in the name
of a nominee of DTC. So long as the American Depositary Shares are held through
DTC or unless otherwise required by law, ownership of beneficial interests in
the Receipt registered in the name of DTC (or its nominee) will be shown on, and
transfers of such ownership will be effected only through, records maintained by
(i) DTC (or its nominee), or (ii) DTC participants (or their nominees).
(2) Surrender of Receipts and Withdrawal of Deposited Securities. Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof and
in Section 5.9 and Exhibit A of the Deposit Agreement) and (ii) all fees, taxes
and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement,
the Company's Memorandum and Articles of Association, Section 7.9 of the Deposit
Agreement, Article (22) of this Receipt and the provisions of or governing the
Deposited Securities and other applicable laws, the Holder of the American
Depositary Shares evidenced hereby is entitled to delivery, to him or upon his
order, of the Deposited Securities represented by the ADS so surrendered.
Subject to the last sentence of this paragraph, such Deposited Securities may be
delivered in certificated form or by electronic delivery. ADS may be surrendered
for the purpose of withdrawing Deposited Securities by delivery of a Receipt
evidencing such ADS (if held in registered form) or by book-entry delivery of
such ADS to the Depositary.
A Receipt surrendered for such purposes shall, if so required by the
Depositary, be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon, the Depositary shall direct the Custodian to Deliver (without
unreasonable delay) at the designated office of the Custodian (subject to the
terms and conditions of the Deposit Agreement, to the Company's Memorandum and
Articles of Association, and to the provisions of or governing the Deposited
Securities and applicable laws, now or hereafter in effect), to or upon the
written order of the person or persons designated in the order delivered to the
Depositary as provided above, the Deposited Securities represented by such ADSs,
together with any certificate or other
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proper documents of or relating to title for the Deposited Securities or
evidence of the electronic transfer thereof (if available) as the case may be to
or for the account of such person. The Depositary may make delivery to such
person or persons at the Principal Office of the Depositary of any dividends or
distributions with respect to the Deposited Securities represented by such
Receipt, or of any proceeds of sale of any dividends, distributions or rights,
which may at the time be held by the Depositary.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number of Shares other than
a whole number of Shares. In the case of surrender of a Receipt evidencing a
number of ADSs representing 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) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes withheld) to the person surrendering the Receipt. At the request, risk
and expense of any Holder so surrendering a Receipt, 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 in
respect of, and any certificate or certificates and other proper documents of or
relating to title to, the Deposited Securities represented by such Receipt to
the Depositary for delivery at the Principal Office of the Depositary, and for
further delivery to such Holder. Such direction shall be given by letter or, at
the request, risk and expense of such Holder, by cable, telex or facsimile
transmission
(3) Transfers, Split-Ups and Combinations of Receipts. Subject to the
terms and conditions of the Deposit Agreement, the Registrar shall register
transfers of Receipts on its books, upon surrender at the Principal Office of
the Depositary of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard industry
practice) and duly stamped as may be required by the laws of the State of New
York and of the United States of America, of the Cayman Islands and of any other
applicable jurisdiction. Subject to the terms and conditions of the Deposit
Agreement, including payment of the applicable fees and charges of the
Depositary, the Depositary shall execute and deliver a new Receipt(s) (and if
necessary, cause the Registrar to countersign such Receipt(s)) and deliver same
to or upon the order of the person entitled to such Receipts evidencing the same
aggregate number of ADSs as those evidenced by the Receipts surrendered. Upon
surrender of a Receipt or Receipts for the purpose of effecting a split-up or
combination of such Receipt or Receipts upon payment of the applicable fees and
charges of the Depositary, and subject to the terms and conditions of the
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts for any authorized number of ADSs requested, evidencing the same
aggregate number of ADSs as the Receipt or Receipts surrendered.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt or withdrawal of any Deposited
Securities, the Depositary or the Custodian may require (i) payment from the
depositor of Shares or presenter of the Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with the Deposit Agreement and applicable law.
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The issuance of ADSs against deposits of Shares generally or against
deposits of particular Shares may be suspended, or the issuance of ADSs against
the deposit of particular Shares may be withheld, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange upon which the
Receipts or Share are listed, or under any provision of the Deposit Agreement or
provisions of, or governing, the Deposited Securities or any meeting of
shareholders of the Company or for any other reason, subject in all cases to
Article (22) hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, the Holders of Receipts are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company 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 Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time). Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under the
Deposit Agreement any Shares or other Deposited Securities required to be
registered under the provisions of the Securities Act of 1933, as amended,
unless a registration statement is in effect as to such Shares.
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to the laws of the Cayman Islands, the rules and requirements
of The New York Stock Exchange and any other stock exchange on which the Shares
are, or will be registered, traded or listed, the Company's Memorandum and
Articles of Association, which are made to provide information as to the
capacity in which such Holder or Beneficial Owner owns ADSs and regarding the
identity of any other person interested in such ADSs and the nature of such
interest and various other matters whether or not they are Holders and/or
Beneficial Owner at the time of such request. The Depositary agrees to use
reasonable efforts to forward any such requests to the Holders and to forward to
the Company any such responses to such requests received by the Depositary.
(6) Liability of Holder for Taxes, Duties and Other Charges. If any tax
or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Receipt or any Deposited Securities or ADSs, such
tax, or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of the Holder and/or Beneficial Owner
any or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, with the Holder and the Beneficial Owner hereof remaining fully
liable for any deficiency. The Custodian may refuse the deposit of Shares, and
the Depositary may refuse to issue ADSs, to deliver Receipts, register the
transfer, split-up or combination of ADRs and (subject to Article (22) hereof)
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 each 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.
Holders understand that in converting Foreign Currency, amounts received on
conversion are calculated at a rate which may exceed the number of decimal
places used by the Depositary to report
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distribution rates (which in any case will not be less than two decimal places).
Any excess amount may be retained by the Depositary as an additional cost of
conversion, irrespective of any other fees and expenses payable or owing
hereunder and shall not be subject to escheatment.
(7) 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 were 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 are not, and the ADSs issuable upon such deposit will not
be, Restricted Securities and (v) 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 and the issuance,
cancellation and transfer of ADSs. If any such representations or warranties are
false in any way, the Company and 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.
(8) Filing 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 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 and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or other
information as the Depositary 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. Subject to Article (22) hereof and the
terms of the Deposit Agreement, the Depositary and the Registrar, as applicable,
may withhold the delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or the delivery of any Deposited Securities until such proof or
other information is filed, or such certifications are executed, or such
representations and warranties made, or such information and documentation are
provided.
(9) Charges of Depositary. The Depositary shall charge the following fees
for the services performed under the terms of the Deposit Agreement, unless
otherwise agreed in writing by the Company and the Depositary; provided,
however, that no fees shall be payable upon distribution of cash dividends so
long as the charging of such fee is prohibited by the exchange, if any, upon
which the ADSs are listed:
(i) to any person to whom ADSs are issued or to any person to whom a
distribution is made in respect of ADS distributions pursuant to stock
dividends or other free distributions of stock, bonus distributions, stock
splits or other distributions (except where converted to cash), 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 to be determined by the Depositary;
(ii) to any person surrendering ADSs for cancellation and withdrawal
of Deposited Securities including, inter alia, cash distributions made
pursuant to a cancellation or withdrawal, a fee not in excess of
U.S. $ 5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii) to any Holder of ADSs, a fee not in excess of U.S. $ 2.00 per
100 ADS held for the distribution of cash proceeds, including cash
dividends or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal;
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(iv) to any holder of ADSs, a fee not in excess of U.S. $ 5.00 per 100
ADSs (or portion thereof) issued upon the exercise of rights;
(v) for the operation and maintenance costs in administering the ADSs
an annual fee of U.S.$0.02 or less per ADS: provided, however, that if the
Depositary imposes a fee under this clause (v), then the total of fees
assessed under this clause (v), combined with the total of fees assessed
under clause (iii) above, shall not exceed U.S.$0.02 per ADS in any
calendar year; and
(vi) in connection with inspections of the relevant share register
maintained by the local registrar, if applicable undertaken by the
Depositary, the Custodian or their respective agents: an annual fee of
U.S.$0.01 or less per ADS (such fee to be assessed against Holders of
record as of the date or dates set by the Depositary as it sees fit and
collected at the sole discretion of the Depositary by billing such Holders
for such fee or by deducting such fee from one or more cash dividends or
other cash distributions.
In addition, Holders, Beneficial Owners, persons depositing Shares for
deposit and persons surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay 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 with the Foreign
Registrar 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, facsimile and electronic 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;
(vi) the fees and expenses incurred by the Depositary in connection
with the delivery of Deposited Securities, including any fees of a central
depository for securities in the local market, where applicable; and
(vii) any additional fees, charges, costs or expenses that may be
incurred by the Depositary from time to time.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. 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 Article (20) of this Receipt.
(10) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) is
transferable by delivery of the Receipt, provided it has been properly endorsed
or
A-6
accompanied by proper instruments of transfer, such Receipt being a certificated
security under the laws of the State of New York. Notwithstanding any notice to
the contrary, the Depositary may deem and treat the Holder of this Receipt (that
is, the person in whose name this Receipt is registered on the books of the
Depositary) as the absolute owner hereof for all purposes. The Depositary shall
have no obligation or be subject to any liability under the Deposit Agreement or
this Receipt to any holder of this Receipt or any Beneficial Owner unless such
holder is the Holder of this Receipt 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.
(11) Validity of Receipt. This Receipt shall not be entitled to any
benefits under the Deposit Agreement or be valid or enforceable for any purpose,
unless this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) if a Registrar
for the Receipts shall have been appointed, countersigned by the manual or
facsimile signature of a duly authorized signatory of the Registrar and
(iv) registered in the books maintained by the Depositary or the Registrar, as
applicable, for the issuance and transfer of Receipts. Receipts 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 execution and delivery of such Receipt by the Depositary or did not
hold such office on the date of issuance of such Receipts.
(12) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
applicable to foreign private issuers (as defined in Rule 405 under the
Securities Act) and accordingly files certain information with the Commission.
These reports and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at 100 F Street, N.E.,
Washington, D.C. 20549. The Depositary shall make available during normal
business hours on any Business Day 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 or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary's or the
Registrar's knowledge, for the purpose of communicating with Holders of such
Receipts 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 Receipts.
The Depositary or the Registrar, as applicable, may close the transfer
books with respect to the Receipts, 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 Article (22) hereof.
Dated: DEUTSCHE BANK TRUST
COMPANY AMERICAS, as Depositary
By:
----------------------------
Vice President
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The address of the Principal Office of the Depositary is 60 Wall Street,
New York, New York 10005, U.S.A.
A-8
EXHIBIT B
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) Dividends and Distributions in Cash, Shares, etc. Whenever the
Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, 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 the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of ADS representing such Deposited Securities held by such Holders
respectively 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. Any such fractional amounts shall be rounded to the
nearest whole cent and so distributed to Holders entitled thereto. 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. Any foreign currency received by the Depositary shall be
converted upon the terms and conditions set forth in the Deposit Agreement.
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall or cause such Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their nominees. Upon receipt of confirmation
of such deposit, the Depositary shall, subject to and in accordance with the
Deposit Agreement, establish the ADS Record Date and either (i) 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 aggregate the
number of Shares received as such dividend, or free distribution, subject to the
terms of the Deposit Agreement (including, without limitation, the applicable
fees and charges of, and expenses incurred by, the Depositary, and taxes), or
(ii) if additional ADSs are not so distributed, each ADS issued and outstanding
after the ADS Record Date shall, to the extent permissible by law, thenceforth
also represent rights and interest in the additional Shares distributed upon the
Deposited Securities represented thereby (net of the applicable fees and charges
of, and the expenses incurred by, the Depositary, and taxes). In lieu of
delivering fractional ADSs, the Depositary shall sell the number of Shares
represented by the aggregate of such fractions and distribute the proceeds upon
the terms set forth in the Deposit Agreement.
In the event that (x) 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, (y) if the Company, in the
fulfillment of its obligations under the Deposit Agreement, has either
(a) 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), or
(b) fails to timely deliver the documentation contemplated in the Deposit
Agreement, the Depositary
B-1
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 taxes and fees and charges of, and expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms 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.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Depositary shall, upon provision of all
documentation required under the Deposit Agreement, (including, without
limitation, any legal opinions of counsel the Depositary may request under the
Deposit Agreement) determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and conditions of
the Deposit Agreement, establish an ADS Record Date according to Article (14)
hereof and establish procedures to enable the Holder hereof to elect to receive
the proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be distributed as in the
case of a distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably practicable
or if the Depositary did not receive satisfactory documentation set forth in the
Deposit Agreement, the Depositary shall, to the extent permitted by law,
distribute to 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 or (y) additional ADSs representing such additional Shares, in each
case, upon the terms described in the Deposit Agreement. Nothing herein shall
obligate the Depositary to make available to the Holder hereof 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.
Upon receipt by the Depositary of a notice indicating that the Company
wishes rights to subscribe for additional Shares to be made available to Holders
of ADSs, the Company shall determine 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 the Company shall have timely
requested that such rights be made available to Holders, the Depositary shall
have received the documentation required by the Deposit Agreement, and the
Depositary shall have determined that such distribution of rights is lawful and
reasonably practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date and
establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes). Nothing herein or in the Deposit Agreement shall obligate the Depositary
to make available to the Holders a method to exercise such 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 if the Company requests
that the rights not be made available to Holders, (ii) the Depositary fails to
receive the documentation required by the Deposit Agreement or determines it is
not lawful or 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 or otherwise,
at such place and upon such terms (including public and private sale) as it may
deem proper. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable fees and charges of, and expenses
incurred by, the Depositary and taxes) upon the terms hereof and in the
B-2
Deposit Agreement. If the Depositary is unable to make any rights available to
Holders or to arrange for the sale of the rights upon the terms described above,
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 feasible
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 herein 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 covering
such offering is in effect or (ii) unless the Company furnishes to 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 satisfactorily to the Depositary, to the effect that
the offering and sale of such securities to Holders and Beneficial Owners are
exempt from, or do not require registration under, the provisions of the
Securities Act or any other applicable laws. In the event that the Company, the
Depositary or the Custodian shall be required to withhold and does withhold from
any distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders 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 exercise rights on the same terms
and conditions as the holders of Shares or 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.
Upon receipt of a notice regarding property other than cash, Shares or
rights to purchase additional Shares, to be made to Holders of ADSs, the
Depositary shall determine, upon consultation with the Company, whether such
distribution to Holders is lawful and reasonably practicable. The Depositary
shall not make such distribution unless (i) the Company shall have timely
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received the documentation required by the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is lawful and reasonably practicable. Upon satisfaction of such conditions, 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 such Holders
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 the conditions above are not satisfied, 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 proper and shall distribute the
proceeds of such sale received by the Depositary (net of (a) applicable fees and
B-3
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders upon the terms hereof and of the Deposit Agreement. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances.
(14) Fixing of Record Date. Whenever necessary in connection with 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 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, or any other matter, the Depositary shall fix a record
date ("ADS Record Date") for the determination of the Holders who shall be
entitled to receive such distribution, to give instructions for the exercise of
voting rights at any such meeting, or to give or withhold such consent, or 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. Subject to applicable law and the terms and conditions of this
Receipt and the Deposit Agreement, only the Holders of record at the close of
business in New York on such ADS Record Date shall be entitled to receive such
distributions, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action.
(15) Voting of Deposited Securities. As soon as practicable after receipt
of notice of any meeting at which the holders of Shares are entitled to vote, or
of solicitation of consents or proxies from holders of Shares or other Deposited
Securities, the Depositary shall fix the ADS Record Date in respect of such
meeting or solicitation of such consent or proxy. 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 21 Business Days prior to the date of such
vote or meeting), at the Company's expense, unless otherwise agreed in writing
by the Company and the Depositary and provided no U.S. legal prohibitions exist,
mail by ordinary, regular mail delivery or by electronic transmission (if agreed
by the Company and the Depositary), unless otherwise agreed in writing by the
Company and the Depositary, to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxies; (b) a statement that
the Holders as of the ADS Record Date will be entitled, subject to any
applicable law, the provisions of the Deposit Agreement, the Company's
Memorandum and Articles of Association 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 Shares or other Deposited Securities
represented by such Holder's ADSs; and (c) a brief statement as to the manner in
which such instructions may be given. Upon the timely receipt of written
instructions of a Holder of ADSs on the ADS Record Date, the Depositary shall
endeavor, insofar as practicable and permitted under applicable law and the
provisions of the Company's Memorandum and Articles of Association and the
provisions of the Deposit Agreement, to vote or cause the Custodian to vote the
Shares and/or other Deposited Securities represented by ADSs held by such Holder
in accordance with such instructions.
In the event that the Depositary i) 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 or ii) if no
instructions are received by the Depositary from a Holder with respect to any of
the Deposited Securities represented by the ADSs evidenced by such Holder's ADRs
on or before the ADS Record Date established by the Depositary for such purpose,
the Depositary shall (unless otherwise specified in the notice distributed to
Holders) deem such Holder to have instructed the Depositary to give a
discretionary proxy to a person designated by the Company with respect to such
Deposited Securities and the Depositary shall give a discretionary proxy to a
person designated by the Company to vote such
B-4
Deposited Securities, provided, however, that no such instruction shall be
deemed given and no such discretionary proxy shall be given with respect to any
matter as to which the Company informs the Depositary (and the Company agrees to
provide such information as promptly as practicable in writing, if applicable)
that (x) the Company does not wish to give such proxy, (y) the Company is aware
or should reasonably be aware that substantial opposition exists from Holders
against the outcome for which the person designated by the Company would
otherwise vote or (z) the outcome for which the person designated by the Company
would otherwise vote would materially and adversely affect the rights of holders
of Shares, provided, further, that the Company will have no liability to any
Holder or Beneficial Owner resulting from such notification.
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 Shares or other
Deposited Securities represented by American Depositary Shares except pursuant
to and in accordance with such written instructions from Holders, including the
deemed instruction to the Depositary to give a discretionary proxy to a person
designated by the Company. Shares or other Deposited Securities represented by
ADSs for which no specific voting instructions are received by the Depositary
from the Holder shall not be voted.
Notwithstanding the above, and in accordance with Section 5.3 of the
Deposit Agreement, the Depositary 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 such vote is cast or the effect of any such vote.
(16) Changes Affecting Deposited Securities. Upon any change in par value,
split-up, cancellation, consolidation or any other reclassification of Deposited
Securities, or upon any recapitalization, reorganization, merger or
consolidation or sale of assets affecting the Company or to which it otherwise
is a party, any securities which shall be received by the Depositary or a
Custodian in exchange for, or in conversion of or replacement 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
Receipts shall, subject to the provisions of the Deposit Agreement and
applicable law, evidence ADSs representing the right to receive such additional
securities. Alternatively, 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 satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a stock
dividend on the Shares, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to this form of Receipt
specifically describing such new Deposited Securities and/or corporate change.
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
satisfactory legal documentation contemplated in the Deposit Agreement, 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 fees and charges of, and expenses incurred by, the Depositary and taxes) for
the account of the Holders otherwise entitled to such securities and distribute
the net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to the Deposit Agreement. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
B-5
(17) Exoneration. Neither the Depositary, the Custodian or the Company
shall be obligated to do or perform any act which is inconsistent with the
provisions of the Deposit Agreement or shall incur any liability (i) if the
Depositary, the Custodian or the Company or their respective controlling persons
or agents shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, 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 by reason
of any provision, present or future of the Company's Memorandum and Articles of
Association 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, 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
Company's Memorandum and Articles of Association or provisions of or governing
Deposited Securities, (iii) for any action or inaction of the Depositary, the
Custodian or the Company or their respective controlling persons or agents 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 any 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 ADS 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, opinion 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.
(18) Standard of Care. The Company and the Depositary and their respective
agents assume no obligation and shall not be subject to any liability under the
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except in accordance with Section 5.8 of the Deposit Agreement,
provided, that the Company and the Depositary and their respective agents agree
to perform their respective obligations specifically set forth in the Deposit
Agreement without gross negligence or bad faith. 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 or for the failure or timeliness of any notice
from the Company. In no event shall the Depositary or any of its Agents be
liable for any indirect, special, punitive or consequential damage.
(19) 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 90(th) day
B-6
after delivery thereof to the Company, or (ii) upon the appointment of a
successor depositary and its acceptance of such appointment as provided in the
Deposit Agreement, save that, any amounts, fees, costs or expenses owed to the
Depositary under the Deposit Agreement or in accordance with any other
agreements otherwise agreed in writing between the Company and the Depositary
from time to time shall be paid to the Depositary prior to such resignation. The
Company shall use reasonable efforts to appoint such successor depositary, and
give notice to the Depositary of such appointment, not more than 90 days after
delivery by the Depositary of written notice of resignation as provided in the
Deposit Agreement. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the later of
(i) the 90(th) day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement save that, any amounts, fees, costs or
expenses owed to the Depositary under the Deposit Agreement or in accordance
with any other agreements otherwise agreed in writing between the Company and
the Depositary from time to time shall be paid to the Depositary prior to such
removal. In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary which shall be a bank or trust company having an office in the
Borough of Manhattan, the City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor. 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 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
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation into or
with which the Depositary may be merged or consolidated shall be the successor
of the Depositary without the execution or filing of any document or any further
act.
(20) Amendment/Supplement. Subject to the terms and conditions of this
Article (20), and applicable law, this Receipt 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 consent of the Holders or
Beneficial Owners. Any amendment or supplement which shall impose or increase
any fees or charges (other than the charges of the Depositary 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 Receipts until 30 days after notice
of such amendment or supplement shall have been given to the Holders of
outstanding Receipts. 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 or Shares to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to prejudice any
substantial rights of Holders or Beneficial Owners. Every Holder and Beneficial
Owner at the time any amendment or supplement so becomes effective shall be
deemed, by continuing to hold such ADS, to consent and agree to such amendment
or supplement and to be bound by the Deposit Agreement as amended or
supplemented thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender such Receipt 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
B-7
adopt new laws, rules or regulations which would require amendment or supplement
of the Deposit Agreement to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt at any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Holders or
within any other period of time as required for compliance with such laws, or
rules or regulations.
(21) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 90
days prior to the date fixed in such notice for such termination provided that,
the Depositary shall be reimbursed for any amounts, fees, costs or expenses owed
to it in accordance with the terms of the Deposit Agreement and in accordance
with any other agreements as otherwise agreed in writing between the Company and
the Depositary from time to time, prior to such termination shall take effect.
If 90 days shall have expired after (i) the Depositary shall have delivered to
the Company a written notice of its election to resign, or (ii) the Company
shall have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holder's Receipt at the Principal Office of the Depositary, upon the payment of
the charges of the Depositary for the surrender of Receipts referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of the Deposit Agreement,
the Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of one year from the date of termination of the
Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
of Receipts whose Receipts have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under the
Deposit Agreement with respect to the Receipts and the Shares, Deposited
Securities and ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case the charges of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Holder in accordance with the terms and conditions of the Deposit Agreement
and any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
B-8
(22) Compliance with U.S. Securities Laws; Regulatory Compliance.
Notwithstanding any provisions in this Receipt 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
Section I.A.(1) of the General Instructions to the Form F-6 Registration
Statement, as amended from time to time, under the Securities Act.
(23) Certain Rights of the Depositary; Limitations. Subject to the further
terms and provisions of this Article (23), 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. 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 on behalf of the holder thereof. 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 of the Deposit Agreement and (ii) deliver Shares prior
to the receipt and cancellation of ADSs pursuant to Section 2.6 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which Shares
may not have been received (each such transaction a "Pre-Release Transaction").
The Depositary may receive ADSs in lieu of Shares under (i) above and receive
Shares in lieu of ADSs under (ii) above. Each such Pre-Release Transaction will
be (a) accompanied by or subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs or Shares are to be delivered
(1) represents that at the time of the Pre-Release Transaction the Applicant or
its customer owns the Shares or ADSs that are to be delivered by the Applicant
under such Pre-Release Transaction, (2) agrees to indicate the Depositary as
owner of such Shares or ADSs in its records and to hold such Shares or ADSs in
trust for the Depositary until such Shares or ADSs are delivered to the
Depositary or the Custodian, (3) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Shares or ADSs and (4) agrees
to any additional restrictions or requirements that the Depositary deems
appropriate; (b) at all times fully collateralized with cash, U.S. government
securities or such other collateral as the Depositary deems appropriate;
(c) terminable by the Depositary on not more than five (5) business days'
notice; and (d) subject to such further indemnities and credit regulations as
the Depositary deems appropriate. The Depositary will normally limit the number
of ADSs and Shares involved in such Pre-Release Transactions at any one time to
thirty percent (30%) of the ADSs outstanding (without giving effect to ADSs
outstanding under (i) above), provided, however, that the Depositary reserves
the right to change or disregard such limit from time to time as it deems
appropriate, including (i) due to a decrease in the aggregate number of ADSs
outstanding that causes existing Pre-Release Transactions to temporarily exceed
the limit stated above or (ii) where otherwise required by market conditions.
The Depositary may also set limits with respect to the number of ADSs and Shares
involved in Pre-Release Transactions with any one person on a case by case basis
as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not earnings thereon, shall be held for the
benefit of the Holders (other than the Applicant).
(24) Ownership Restrictions. Owners and Beneficial Owners shall comply with
any limitations on ownership of Shares under the Memorandum and Articles of
Association of the Company or applicable Cayman Islands law as if they held the
number of Shares their American Depositary Shares represent. The Company shall
inform the Owners, Beneficial Owners and the Depositary of any such ownership
restrictions in place from time to time.
B-9
(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 Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt 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 Receipt.
SIGNATURE GUARANTEED
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B-10
