January 8, 2003
Securities and Exchange Commission
450 Fifth Street N.W.
Washington, D.C. 20549
Rule 424(b)(3) Filing in respect of Form F-6 Registration Statement No.
333-12010 for American Depositary Shares representing Ordinary Shares,
par value HK$0.05 per share, of PCCW Limited (formerly, "Pacific
Century CyberWorks Limited"), a company incorporated under the laws of
Hong Kong, SAR (the "Company").
Ladies & Gentlemen:
On behalf of Citibank, N.A., as Depositary (the "Depositary") and
acting on behalf of the legal entity created by the Amended and Restated Deposit
Agreement, dated as of August 7, 2000 (the "Deposit Agreement"), by and among
the Depositary, the Company and the Holders and Beneficial Owners of American
Depositary Receipts ("ADRs") evidencing American Depositary Shares ("ADSs"),
each representing 10 (ten) ordinary shares of the Company, I enclose for filing
with the Securities and Exchange Commission (the "Commission"), pursuant to Rule
424(b)(3) promulgated by the Commission under the Securities Act of 1933, as
amended (the "Act"), one (1) copy of a form of the ADRs which are to be issued
by the Depositary and which reflect the change in par value of the ordinary
shares of the Company from HK $0.05 to HK $0.25 and the resultant change in the
CUSIP Number for the ADRs from 70454G 10 8 to 70454G 20 7.
As required by Rule 424(e) under the Act, the cover of the enclosed ADR
has been marked to indicate the paragraph of Rule 424 under which the filing is
being made and the file number of the Form F-6 Registration Statement previously
filed and declared effective in respect of the ADRs.
In anticipation of any subsequent filings with, and/or submissions to,
the Commission that the Company and/or the Depositary may make, we respectfully
request that the Commission modify its records to reflect the change in par
value of the ordinary shares of the Company from HK $0.05 to HK $0.25 and the
resultant change in the CUSIP Number from 70454G108 to 70454G207.
In the event any member of the Staff of the Commission has any
questions or comments concerning this filing, such person should contact the
undersigned at (212) 657-2474.
Very truly yours,
/s/ Dana R. Lowe
Dana R. Lowe
Enclosures
By Courier
cc: Paul M. Dudek, Esq. (Securities and Exchange Commission - Office of
International Corporate Finance)
Amit Sibal, Esq. (Davis Polk & Wardwell)
Karin Young (Citibank, N.A. - ADR Department)
Mark Gherzo (Citibank, N.A. - ADR Department
[FORM OF RECEIPT]
Number CUSIP NUMBER: 70454G207
American Depositary Shares
(each American Depositary
Share representing ten (10)
Fully Paid Shares each par
value HK$0.25)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED SHARES
of
PCCW Limited
(Incorporated under the laws of Hong Kong)
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 shares,
each of Par Value HK$0.25, including evidence of rights to receive such shares
(the "Shares"), of PCCW Limited, a corporation incorporated under the laws of
Hong Kong (the "Company"). As of the date of the Deposit Agreement (as
hereinafter defined), each ADS represents ten (10) 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 Article IV of the Deposit
Agreement. The Depositary's Principal Office is located at 111 Wall Street, New
York, New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is one of
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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 August 7, 2000 (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 ADSs evidenced by Receipts issued thereunder. 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, 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 Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles
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.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
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The Holder of this Receipt (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 ADS(s) 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 Receipt)
for the purpose of withdrawal of the Deposited Securities represented thereby,
(ii) if so required by the Depositary,this Receipt 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 Receipt, of the Deposit Agreement, of the Company's
Articles of Association, of any applicable laws and the rules of the CCASS, and
to any provisions of or governing the Deposited Securities, in each case as in
effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt 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 (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this Receipt, of the Articles of
Association of the Company, of any applicable laws and the rules of the CCASS,
and to the terms and conditions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than one Share. In the case of Delivery to it of ADSs representing 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
ADS(s) so Surrendered 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 Receipt 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 distribution 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 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 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 Receipts. The Depositary
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shall cause the Registrar to register the transfer of this Receipt (and of the
ADSs represented hereby) on the books maintained for such purpose and the
Depositary shall cancel this Receipt and execute new Receipts evidencing the
same aggregate number of ADSs as those evidenced by this Receipt when canceled,
shall cause the Registrar to countersign such new Receipts, and shall Deliver
such new Receipts to or upon the order of the person entitled thereto, if each
of the following conditions has been satisfied: (i) this Receipt 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 Receipt has been properly endorsed or is accompanied by
proper instruments of transfer (including signature guarantees in accordance
with standard securities industry practice), (iii) this Receipt 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
Receipt, of the Deposit Agreement and of applicable law, in each case as in
effect at the time thereof.
The Depositary shall cause the Registrar to register the split-up or
combination of this Receipt (and of the ADSs represented hereby) on the books
maintained for such purpose and the Depositary shall cancel this Receipt and
execute new Receipts for the number of ADSs requested, but in the aggregate not
exceeding the number of ADSs evidenced by this Receipt (when canceled), shall
cause the Registrar to countersign such new Receipts, and shall Deliver such new
Receipts to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) this Receipt 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 Receipt, of
the Deposit Agreement and of applicable law, in each case as in effect at the
time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a
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condition precedent to the execution and delivery, registration of issuance or
transfer, split-up, combination or surrender of any Receipt, 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 a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charge and any stock transfer or registration fee with
respect thereto (including any such tax or charge and fee with respect to Shares
being deposited or withdrawn) and payment of any applicable fees 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 contemplated in the Deposit Agreement, and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts or ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary or the Company
may establish consistent with the provisions of this Receipt and the Deposit
Agreement and applicable law.
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 Receipts in particular
instances may be refused, or the registration of transfer of outstanding
Receipts 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 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 Shares or ADSs are listed, or under any
provision of the Deposit Agreement or this Receipt, 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 Article (24)
hereof. Notwithstanding any provision of the Deposit Agreement or this Receipt
to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw
the Deposited Securities at any time subject only to (i) temporary delays caused
by closing the transfer books of the Depositary or the Company 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.(1) 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
provisions 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 applicable Hong Kong law, the rules and requirements of Hong
Kong Stock Exchange, and of 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 matters, whether or not they are
Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of
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this Receipt 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 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, t he removal or limitation of voting rights or a
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.
(7) Liability of Holder for Taxes and Other Charges. Any tax or other
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governmental charge payable with respect to any Receipt or any Deposited
Securities or ADSs shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or Depositary may withhold or deduct
from any distributions made in respect of Deposited Securities and may sell for
the account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner hereof remaining liable for any deficiency. The Custodian
may refuse the deposit of Shares and the Depositary may refuse to issue ADSs, to
deliver ADRs, register the transfer, split-up or combination of ADRs and
(subject to Article (24) 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 any of their agents, employees and Affiliates for, and hold each
of then 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) Representation and Warranties of Depositors. Each person depositing
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Shares under the Deposit Agreement shall be deemed thereby to represent and
warrant that (i) such Shares and the certificates therefore 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 to do so, (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, 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
Depositary shall be authorized, at the cost and expense of the person depositing
Shares, to take any and all actions necessary to correct the consequences
thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
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presenting Shares for deposit, and 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 and the terms
of the Deposit Agreement 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 of Shares on the books 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. The Depositary and the Registrar, as
applicable, may withhold the execution or 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, to the extent not limited by Article
(24) hereof, the delivery of any Deposited Securities until such proof or other
information is filed or such certificates are executed, or such representations
are made or such information and documentation are provided, in each case to the
Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the
---------------------
following fees for the services performed under the terms of the Deposit
Agreement:
(i) to any person to whom ADSs are issued upon the
deposit of Shares, a fee not in excess of U.S. $ 5.00
per 100 ADSs (or portion thereof) so issued under the
terms of the Deposit Agreement (excluding issuances
pursuant to paragraphs (iii) and (iv) below);
(ii) 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 portion
thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S.
$ 2.00 per 100 ADSs (or portion thereof) held for the
distribution of cash proceeds (i e., upon the sale of
rights and other entitlements);
(iv) to any Holder of ADRs, a fee not in the excess of
U.S. $ 5.00 per 100 ADSs (or portion thereof) issued
upon the exercise of rights; and
(v) No Fee shall be payable upon distribution of (a) cash
dividends or (b) ADSs pursuant to stock dividends (or
other free distributions of stock) so long as the
charging of such fee is prohibited by the exchange
upon which the ADSs are listed. If charging of such
fees shall be payable in respect of ADS distribution
and the fees specified in (iii) above shall be
payable in respect of distributions of cash.
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 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 in
connection with the delivery of Deposited Securities.
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 (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
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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) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that the Receipt 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 Receipt (that is, the person in whose name this Receipt 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 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.
(12) Validity of Receipt. The Holder(s) of this Receipt (and the ADSs
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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 Receipt 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 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 delivery of such Receipt by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books. As
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of the Effective Date, the Company will be subject to the periodic reporting
requirements of the Exchange Act and accordingly will file 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
Judiciary Plaza, 450 Fifth Street, N. W., Washington D.C. 20549 and at the
Commission's New York City office located at Seven World Trade Center, 13th
Floor, New York, New York 10048. 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 cause the Registrar to keep books for the
registration of issuances 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 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 Registrar 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 (24) hereof.
Dated:
CITIBANK, N .A. CITIBANK, N .A.,
Transfer Agent and Registrar as Depositary
By: ____________________ By: __________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 111 Wall
Street, New York, New York 10043, U.S.A.
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distribution in Cash, Shares, etc. Whenever the
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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 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 the
Deposit Agreement), be converted on a practicable basis into Dollars
transferable to the United States, as promptly as practicable convert or cause
to be converted such cash dividend, distribution or proceeds into Dollars (upon
the terms of the Deposit Agreement), (ii) if applicable, establish the ADS
Record Date upon the terms described in Section 4.9, and (iii) will 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 ADS
held as of the ADS Record Date. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder a
fraction of one cent, and any balance not so distributed shall be held by the
Depositary (without liability for interest thereon) and shall be added to and
become part of the next sum received by the Depositary for distribution to
Holders of ADSs then outstanding at the time of the next distribution. If the
Company, the Custodian or the Depositary is required to withhold and does
withhold from any cash dividend or other cash distribution in respect of any
Deposited Securities an amount on account of taxes, duties or other governmental
charges, the amount distributed to Holders on the ADSs represented such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company to the relevant governmental authority,
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Company shall 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 respective nominees. Upon
receipt of confirmation of such deposit from the Custodian, the Depositary
shall, subject to and in accordance with the Deposit Agreement, establish the
ADS Record Date and either (i) the Depositary shall 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, (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, 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 (a) of the
applicable fees and charges of, and the 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 and distribute the net proceeds upon the terms set forth in
the Deposit Agreement.
In the event that the Depositary determines that any distribution in
property (including Shares) is subject to any tax or other governmental charges
which the Depositary is obligated to withhold, or, if the Company has failed to
deliver an opinion of U.S. counsel under Section 5.7 determining that Shares are
registered or exempt from registration under the Securities Act or other laws in
order to be distributed to Holders, 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 fees and
(b) 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 Company and the Depositary shall 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 paragraph (16) 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. If
such elective distribution is not lawful or not reasonably practicable, the
Depositary shall, to the extent permitted by law, distribute to Holders, on the
basis of the same determination as is made in Hong Kong 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 or in the Deposit Agreement 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 then holders of Shares.
Upon timely 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 Depositary upon consultation with 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 (i) the Company shall have timely requested that such rights be
made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is 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 (upon the terms
described in 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 the 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. 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 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 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 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 of the Deposit Agreement. If the
Depositary is unable to make any rights to Shares 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 ADR Holders on behalf of the Company in connection with the rights
distribution.
Notwithstanding anything herein or in 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. 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 exercise rights on the same terms
and conditions as the holders of Shares or 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.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Shares or rights to purchase additional Shares, to be made to
Holders of ADSs, the Depositary shall 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 the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution is reasonably practicable. Upon
satisfaction of such conditions, the Depositary shall establish the ADS Record
Date and 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 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 (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 (a)
applicable fees and 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 for the account of the Holders in any way it deems reasonably
practicable under the circumstances.
(15) Redemption. Upon timely receipt of notice from the Company that it
----------
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) 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. Upon receipt of confirmation 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 upon
delivery of such ADSs by Holders thereof upon the terms 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 per share amount received by the Depositary upon the redemption of
the Deposited Securities represented by American Depositary Shares (subject to
the terms of the Deposit Agreement and the applicable fees and charges of, and
expenses incurred by, the Depositary, and taxes) multiplied by the number of
Units or Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
-------------------------
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Shares, rights or other distribution), or whenever for any reason the
Depositary causes a change in the number of Shares that are represented by each
ADS, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or proxies of, holders of Shares or other Deposited
Securities, or whenever the Depositary shall fmd 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
of Receipts 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 Receipts at the close of business in New York on such ADS Record Date
shall be entitled to receive such distributions, to give such instructions, to
receive such notice or solicitation, or otherwise take action.
(17) Voting of Deposited Securities. As soon as practicable after
------------------------------
receipt of notice of any meeting at which the holders of Deposited Securities
are entitled to vote, or of solicitation of consents or proxies from holders of
Deposited Securities, the Depositary shall fix the ADS Record Date in respect of
such meeting or solicitation of such consent or proxy. The Depositary shall (if
requested in writing in a timely manner by the Company, 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
proxies, (b) a statement that the Holders as of the ADS Record Date will be
entitled, subject to any applicable law, the Company's Articles of Association
and the provisions of or governing Deposited Securities (which provisions, if
any, shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by such Holder's ADSs and (c) a brief statement
as to the manner in which such voting instructions may be given. Upon the timely
receipt of voting instructions from a Holder of ADSs as of the ADS Record Date
in the manner specified by the Depositary, the Depositary shall endeavor,
insofar as practicable and permitted under applicable law and the provisions of
the Articles of Association of the Company and the provisions of the Deposited
Securities, to vote, or cause the Custodian to vote, the Deposited Securities
represented by such Holder's ADSs in accordance with such instructions.
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, 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 instructions. Deposited Securities
represented by ADSs for which no timely voting instructions are received by the
Depositary from the Holder shall not be voted. Notwithstanding anything else
contained in the Deposit Agreement or this Receipt, the Depositary shall not
have any obligation to take any action with respect to any meeting, or
solicitation or consents or proxies, of holders of Shares or other 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 or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipt shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. 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 accordance with procedures established by the
Depositary, using its reasonable judgment including, but not limited to,
suspending distributions of dividends and voting rights in respect of
unsurrendered Receipts, in either case, as well as in the event of newly
deposited Shares, with necessary modifications to the form of Receipt contained
in this Exhibit A to the Deposit Agreement, specifically describing such new
Deposited Securities or corporate change. Notwithstanding the foregoing, in the
event that any security so received may not be lawfully distributed to some or
all Holders, the Depositary may, with the Company's approval, and shall if the
Company requests, 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) fees and charges of, and expenses incurred
by, the Depositary and (b) 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.
(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 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, Hong Kong 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 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, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the 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 deposi1t, 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 this Deposit
Agreement, made available to Holders of ADSs (v) for the limitation of any
rights under this Deposit Agreement resulting from a Holder's failure to
surrender outstanding Receipts when required under this Deposit Agreement or for
any other actions, in accordance with market practice, as may be required in
connection with a corporate action relating to the Deposited Securities, or (vi)
for any consequential or punitive damages for any breach of the terms of this
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 Receipt.
(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 Receipt 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 Receipt without negligence or bad faith.
The Depositary and its agents shall not be liable for any failure to carry out
any instructions to vote .my 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 this 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 this Deposit Agreement or for the failure
or timeliness of any notice from the Company.
(21) Resignation and Removal of the Depositary; Appointment of
---------------------------------------------------------
Successor Depositary. The Depositary, may at any time resign as Depositary
--------------------
under the Deposit Agreement by written notice of resignation delivered to the
Company, such resignation to be effective on the earlier of (i) the 60th day
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. The Depositary may at any time be removed by the Company by
written notice of such removal which notice shall be effective on the earlier of
(i) the 60th 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. 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 (except as required by
applicable law), 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 provide notice
of its appointment to such Holders. Any corporation into or with which the
Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further act.
(22) Amendment/Supplement. Subject to the terms and conditions of this
--------------------
Article 22, the Deposit Agreement 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
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other that the
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outst4mding
Receipts until the expiration of 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 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 materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), 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 adopt new laws, rules or regulations
which should 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 this 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.
(23) Termination. The Depositary shall, at any time at the written
-----------
direction of the Company, terminate the Deposit Agreement by providing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 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 herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by providing 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
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs 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 1that 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 six months from the date of termination of the
Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
whose 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, the Deposited Securities
and the ADSs, except to account for such net proceeds and other cash (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of 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.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
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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 I.A. (1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitation. Subject to the
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further terms and provisions of this Article (25), the Depositary, its Affiliate
and their agents, on their 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. 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 of ADSs for withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement, including ADSs
which were issued under (i) above but for which Shares may not have been
received (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 (w) 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, (x) 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, (y)
unconditionally guarantees to deliver to the Depositary or the Custodian, as
applicable, such Shares or ADSs and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collaterized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, (c) terminable by the Depositary or not more
than five (5) business days' notice and (d) subject to such further indemnities
and credit regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate. The Depositary may also set limits with
respect to the number of ADSs and Shares involved in Pre-Release Transactions
with anyone 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).
(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, if not on file with
the Depositary, must be
forwarded with this Receipt.
All endorsement or assignments
of Receipts must be guaranteed
by a member of a Medallion
Signature Program approved by
the Securities Transfer
Association, Inc.
SIGNATURE GUARANTEED
Legends
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The Receipts issued in respect of Partial Entitlement American Depositary Shares
shall bear the following legend on the face of the Receipt: "This Receipt
evidences American Depositary Shares representing "partial entitlement" Shares
of Pacific Century CyberWorks Limited and as such do not entitle the holders
thereof to the same per-share Entitlement as other Shares (which are "full
entitlement" Shares) issued and outstanding at such time. The American
Depositary Shares represented by this Receipt shall entitle holders to
distributions and entitlements identical to other American Depositary Shares
when the Shares represented by such American Depositary Shares become "full
entitlement" Shares.