Exhibit 4.2
CHINA LIFE INSURANCE COMPANY LIMITED
AND
JPMORGAN CHASE BANK,
As Depositary
AND
HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
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Deposit Agreement
Dated as of [DATE], 2003
TABLE OF CONTENTS
Page
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PARTIES 4
RECITALS 4
Section 1. Certain Definitions
(a) ADR Register 4
(b) ADRs; Direct Registration ADRs 4
(c) ADS 4
(d) Custodian 4
(e) Deliver, execute, issue et al. 4
(f) Delivery Order 4
(g) Deposited Securities 4
(h) Direct Registration System 4
(i) Holder 5
(j) Securities Act of 1933 5
(k) Securities Exchange Act of 1934 5
(l) Shares 5
(m) Transfer Office 5
(n) Withdrawal Order 5
Section 2. ADRs 5
Section 3. Deposit of Shares 5
Section 4. Issue of ADRs 6
Section 5. Distributions on Deposited Securities 6
Section 6. Withdrawal of Deposited Securities 6
Section 7. Substitution of ADRs 7
Section 8. Cancellation and Destruction of ADRs 7
Section 9. The Custodian 7
Section 10. Co-Registrars and Co-Transfer Agents 7
Section 11. Lists of Holders. 7
Section 12. Depositary's Agents 7
Section 13. Successor Depositary 8
Section 14. Reports 8
Section 15. Additional Shares 8
Section 16. Indemnification 8
Section 17. Notices 9
Section 18. Miscellaneous 9
Section 19. Consent to Jurisdiction 10
TESTIMONIUM 12
SIGNATURES 12
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EXHIBIT A
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FORM OF FACE OF ADR A-1
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Introductory Paragraph A-1
(1) Issuance of ADRs A-1
(2) Withdrawal of Deposited Securities A-2
(3) Transfers of ADRs A-2
(4) Certain Limitations A-3
(5) Taxes A-3
(6) Disclosure of Interests; Limitations on Ownership A-4
(7) Charges of Depositary A-5
(8) Available Information A-5
(9) Execution A-6
Signature of Depositary A-6
Address of Depositary's Office A-6
FORM OF REVERSE OF ADR A-7
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(10) Distributions on Deposited Securities A-7
(11) Record Dates A-7
(12) Voting of Deposited Securities A-8
(13) Changes Affecting Deposited Securities A-8
(14) Exoneration A-8
(15) Resignation and Removal of Depositary; the
Custodian A-9
(16) Amendment A-9
(17) Termination A-10
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DEPOSIT AGREEMENT dated as of [DATE], 2003 (the "Deposit Agreement")
among CHINA LIFE INSURANCE COMPANY LIMITED and its successors (the "Company"),
JPMORGAN CHASE BANK, as depositary hereunder (the "Depositary"), and all holders
from time to time of American Depositary Receipts issued hereunder ("ADRs")
evidencing American Depositary Shares ("ADSs") representing deposited Shares
(defined below). The parties hereto agree as follows:
1. Certain Definitions.
(a) "ADR Register" is defined in paragraph (3) of the form of ADR.
(b) "ADRs" mean the American Depositary Receipts executed and delivered
hereunder. ADRs may be either in physical certificated form or Direct
Registration ADRs. ADRs in physical certificated form, and the terms and
conditions governing the Direct Registration ADRs (as hereinafter defined),
shall be substantially in the form of Exhibit A annexed hereto (the "form of
ADR"). The term "Direct Registration ADR" means an ADR, the ownership of which
is recorded on the Direct Registration System. References to "ADRs" shall
include certificated ADRs and Direct Registration ADRs, unless the context
otherwise requires. The form of ADR is hereby incorporated herein and made a
part hereof; the provisions of the form of ADR shall be binding upon the parties
hereto.
(c) Subject to paragraph (13) of the form of ADR, each "ADS" evidenced
by an ADR represents the right to receive fifty Shares and a pro rata share in
any other Deposited Securities.
(d) "Custodian" means the agent or agents of the Depositary (singly or
collectively, as the context requires) and any additional or substitute
Custodian appointed pursuant to Section 9.
(e) The terms "deliver", "execute", "issue", "register", "surrender",
"transfer" or "cancel", when used with respect to Direct Registration ADRs,
shall refer to an entry or entries or an electronic transfer or transfers in the
Direct Registration System, and, when used with respect to ADRs in physical
certificated form, shall refer to the physical delivery, execution, issuance,
registration, surrender, transfer or cancellation of certificates representing
the ADRs.
(f) "Delivery Order" is defined in Section 3.
(g) "Deposited Securities" as of any time means all Shares at such time
deposited under this Deposit Agreement and any and all other Shares, securities,
property and cash at such time held by the Depositary or the Custodian in
respect or in lieu of such deposited Shares and other Shares, securities,
property and cash.
(h) "Direct Registration System" means the system for the
uncertificated registration of ownership of securities established by The
Depository Trust Company ("DTC") and utilized by the Depositary pursuant to
which the Depositary may record the ownership of ADRs without the issuance of a
certificate, which ownership shall be evidenced by periodic statements issued by
the Depositary to the Holders entitled thereto. For purposes hereof, the
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Direct Registration System shall include access to the Profile Modification
System maintained by DTC which provides for automated transfer of ownership
between DTC and the Depositary.
(i) "Holder" means the person or persons in whose name an ADR is
registered on the ADR Register.
(j) "Securities Act of 1933" means the United States Securities Act of
1933, as from time to time amended.
(k) "Securities Exchange Act of 1934" means the United States
Securities Exchange Act of 1934, as from time to time amended.
(l) "Shares" mean the overseas listed foreign-invested shares in
registered form of the Company, or interim certificates representing such
Shares, and shall include the rights to receive Shares specified in paragraph
(1) of the form of ADR.
(m) "Transfer Office" is defined in paragraph (3) of the form of ADR.
(n) "Withdrawal Order" is defined in Section 6.
2. ADRs. (a) ADRs in certificated form shall be engraved, printed or
otherwise reproduced at the discretion of the Depositary in accordance with its
customary practices in its American depositary receipt business, or at the
request of the Company typewritten and photocopied on plain or safety paper, and
shall be substantially in the form set forth in the form of ADR, with such
changes as may be required by the Depositary or the Company to comply with their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations or restrictions to which any particular ADRs are
subject. ADRs may be issued in denominations of any number of ADSs. ADRs in
certificated form shall be executed by the Depositary by the manual or facsimile
signature of a duly authorized officer of the Depositary. ADRs in certificated
form bearing the facsimile signature of anyone who was at the time of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that such officer has ceased to hold such office prior to the
delivery of such ADRs.
(b) Direct Registration ADRs. Notwithstanding anything in this Deposit
Agreement or in the form of ADR to the contrary, ADSs shall be evidenced by
Direct Registration ADRs, unless certificated ADRs are specifically requested by
the Holder.
(c) Holders shall be bound by the terms and conditions of this Deposit
Agreement and of the form of ADR, regardless of whether their ADRs are Direct
Registration ADRs or certificated ADRs.
3. Deposit of Shares. In connection with the deposit of Shares
hereunder, the Depositary or the Custodian may require the following in form
satisfactory to it: (a) a written order directing the Depositary to issue to, or
upon the written order of, the person or persons designated in such order a
Direct Registration ADR or ADRs evidencing the number of ADSs representing such
deposited Shares (a "Delivery Order"); (b) proper endorsements or
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duly executed instruments of transfer in respect of such deposited Shares; (c)
instruments assigning to the Custodian or its nominee any distribution on or in
respect of such deposited Shares or indemnity therefor; and (d) proxies
entitling the Custodian to vote such deposited Shares. As soon as practicable
after the Custodian receives Deposited Securities pursuant to any such deposit
or pursuant to paragraph (10) or (13) of the form of ADR, the Custodian shall
present such Deposited Securities for registration of transfer into the name of
the Custodian or its nominee, to the extent such registration is practicable, at
the cost and expense of the person making such deposit (or for whose benefit
such deposit is made) and shall obtain evidence satisfactory to it of such
registration. Deposited Securities shall be held by the Custodian for the
account and to the order of the Depositary at such place or places and in such
manner as the Depositary shall determine. Deposited Securities may be delivered
by the Custodian to any person only under the circumstances expressly
contemplated in this Deposit Agreement. To the extent that the provisions of or
governing the Shares make delivery of certificates therefor impracticable,
Shares may be deposited hereunder by such delivery thereof as the Depositary or
the Custodian may reasonably accept, including, without limitation, by causing
them to be credited to an account maintained by the Custodian for such purpose
with the Company or an accredited intermediary, such as a bank, acting as a
registrar for the Shares, together with delivery of the documents, payments and
Delivery Order referred to herein to the Custodian or the Depositary.
4. Issue of ADRs. After any such deposit of Shares, the Custodian shall
notify the Depositary of such deposit and of the information contained in any
related Delivery Order by letter, first class airmail postage prepaid, or, at
the request, risk and expense of the person making the deposit, by cable, telex
or facsimile transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement, shall properly issue at the
Transfer Office, to or upon the order of any person named in such notice, an ADR
or ADRs registered as requested and evidencing the aggregate ADSs to which such
person is entitled.
5. Distributions on Deposited Securities. To the extent that the
Depositary determines in its discretion that any distribution pursuant to
paragraph (10) of the form of ADR is not practicable with respect to any Holder,
the Depositary may make such distribution as it so deems practicable, including
the distribution of foreign currency, securities or property (or appropriate
documents evidencing the right to receive foreign currency, securities or
property) or the retention thereof as Deposited Securities with respect to such
Holder's ADRs (without liability for interest thereon or the investment
thereof).
6. Withdrawal of Deposited Securities. In connection with any surrender
of an ADR for withdrawal of the Deposited Securities represented by the ADSs
evidenced thereby, the Depositary may require proper endorsement in blank of
such ADR (or duly executed instruments of transfer thereof in blank) and the
Holder's written order directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered to, or upon the written order of, any person designated in such order
(a "Withdrawal Order"). Directions from the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, or, at the request, risk and expense of the Holder, by cable,
telex or facsimile transmission. Delivery of Deposited Securities may be made by
the delivery of certificates (which, if required by law shall be properly
endorsed or accompanied by properly executed instruments
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of transfer or, if such certificates may be registered, registered in the name
of such Holder or as ordered by such Holder in any Withdrawal Order) or by such
other means as the Depositary may deem practicable, including, without
limitation, by transfer of record ownership thereof to an account designated in
the Withdrawal Order maintained either by the Company or an accredited
intermediary, such as a bank, acting as a registrar for the Deposited
Securities.
7. Substitution of ADRs. The Depositary shall execute and deliver a new
Direct Registration ADR in exchange and substitution for any mutilated
certificated ADR upon cancellation thereof or in lieu of and in substitution for
such destroyed, lost or stolen certificated ADR, unless the Depositary has
notice that such ADR has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary a request for such execution and delivery and
a sufficient indemnity bond and satisfying any other reasonable requirements
imposed by the Depositary.
8. Cancellation and Destruction of ADRs. All ADRs surrendered to the
Depositary shall be cancelled by the Depositary. The Depositary is authorized to
destroy ADRs in certificated form so cancelled in accordance with its customary
practices.
9. The Custodian. Any Custodian in acting hereunder shall be subject to
the directions of the Depositary and shall be responsible solely to it. The
Depositary may from time to time appoint one or more agents to act for it as
Custodian hereunder. Each Custodian so appointed (other than JPMorgan Chase
Bank) shall give written notice to the Company and the Depositary accepting such
appointment and agreeing to be bound by the applicable terms hereof. Any
Custodian may resign from its duties hereunder by at least 30 days written
notice to the Depositary. The Depositary may discharge any Custodian at any time
upon notice to the Custodian being discharged. Any Custodian ceasing to act
hereunder as Custodian shall deliver, upon the instruction of the Depositary,
all Deposited Securities held by it to a Custodian continuing to act.
10. Co-Registrars and Co-Transfer Agents. The Depositary may appoint
and remove (i) co-registrars to register ADRs and transfers, combinations and
split-ups of ADRs and to countersign ADRs in accordance with the terms of any
such appointment and (ii) co-transfer agents for the purpose of effecting
transfers, combinations and split-ups of ADRs at designated transfer offices in
addition to the Transfer Office on behalf of the Depositary. Each co-registrar
or co-transfer agent (other than JPMorgan Chase Bank) shall give notice in
writing to the Company and the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
11. Lists of Holders. The Company shall have the right to inspect
transfer records of the Depositary and its agents and the ADR Register, take
copies thereof and require the Depositary and its agents to supply copies of
such portions of such records as the Company may request. The Depositary or its
agent shall furnish to the Company promptly upon the written request of the
Company, a list of the names, addresses and holdings of ADSs by all Holders as
of a date within seven days of the Depositary's receipt of such request.
12. Depositary's Agents. The Depositary may perform its obligations
under this Deposit Agreement through any agent appointed by it, provided that
the Depositary shall notify the Company of such appointment and shall remain
responsible for the performance of
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such obligations as if no agent were appointed.
13. Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by written notice of its election so to do delivered to the
Company. The Depositary may at any time be removed by the Company by written
notice of such removal. Notwithstanding anything to the contrary contained
herein, in case at any time the Depositary acting hereunder shall resign or be
removed, it shall continue to act as Depositary for the purpose of terminating
this Deposit Agreement pursuant to paragraph (17) of the form of ADR. Any bank
or trust company into or with which the Depositary may be merged or
consolidated, or to which the Depositary shall transfer substantially all its
American depositary receipt business, shall be the successor of the Depositary
without the execution or filing of any document or any further act.
14. Reports. On or before the first date on which the Company makes any
communication available to holders of Deposited Securities or any securities
regulatory authority or stock exchange, by publication or otherwise, the Company
shall transmit to the Depositary a copy thereof in English or with an English
translation or summary. The Company has delivered to the Depositary, the
Custodian and any Transfer Office, a copy of all provisions of or governing the
Shares and any other Deposited Securities issued by the Company or any affiliate
of the Company and, promptly upon any change thereto, the Company shall deliver
to the Depositary, the Custodian and any Transfer Office, a copy (in English or
with an English translation) of such provisions as so changed. The Depositary
and its agents may rely upon the Company's delivery thereof for all purposes of
this Deposit Agreement.
15. Additional Shares. Neither the Company nor any company controlling,
controlled by or under common control with the Company shall issue additional
Shares, rights to subscribe for Shares, securities convertible into or
exchangeable for Shares or rights to subscribe for any such securities or shall
deposit any Shares under this Deposit Agreement, except under circumstances
complying in all respects with the Securities Act of 1933. The Depositary will
use reasonable efforts to comply with written instructions of the Company not to
accept for deposit hereunder any Shares identified in such instructions at such
times and under such circumstances as may reasonably be specified in such
instructions in order to facilitate the Company's compliance with securities
laws in the United States.
16. Indemnification. The Company shall indemnify, defend and save
harmless each of the Depositary and its agents against any loss, liability or
expense (including reasonable fees and expenses of counsel) which may arise out
of acts performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the ADRs, as the same may be amended, modified or supplemented
from time to time in accordance herewith (i) by either the Depositary or its
agents or their respective directors, employees, agents and affiliates, except,
subject to the penultimate paragraph of this Section 16, for any liability or
expense directly arising out of the negligence or bad faith of such person, or
(ii) by the Company or any of its directors, employees, agents or affiliates.
The indemnities set forth in the preceding paragraph shall apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement
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memorandum), or preliminary prospectus (or preliminary placement memorandum)
relating to the offer or sale of ADSs, except to the extent any such liability
or expense arises out of (i) information relating to the Depositary or its
agents (other than the Company), as applicable, furnished in writing by the
Depositary and not changed or altered by the Company expressly for use in any
of the foregoing documents or (ii) if such information is provided, the failure
to state a material fact necessary to make the information provided not
misleading.
Except as provided in the next succeeding paragraph, the Depositary
shall indemnify, defend and save harmless the Company against any loss,
liability or expense (including reasonable fees and expenses of counsel)
incurred by the Company in respect of this Deposit Agreement to the extent such
loss, liability or expense is due to the negligence or bad faith of the
Depositary and its agents appointed and acting hereunder.
Notwithstanding any other provision of this Deposit Agreement or the
form of ADR to the contrary, neither the Company nor the Depositary, nor any of
their agents, shall be liable to the other for any indirect, special, punitive
or consequential damages (collectively "Special Damages") except (i) to the
extent such Special Damages arise from the gross negligence or willful
misconduct of the party from whom indemnification is sought or (ii) to the
extent Special Damages arise from or out of a claim brought by a third party
(including, without limitation, Holders) against the Depositary or its agents,
except to the extent such Special Damages arise out of the fraud, gross
negligence or willful misconduct of the party seeking indemnification hereunder.
The obligations set forth in this Section 16 shall survive the
termination of this Deposit Agreement and the succession or substitution of any
indemnified person.
17. Notices. Notice to any Holder shall be deemed given when first
mailed, first class postage prepaid, to the address of such Holder on the ADR
Register or received by such Holder. Notice to the Depositary or the Company
shall be deemed given when first received by it at the address or facsimile
transmission number set forth in (a) or (b), respectively, or at such other
address or facsimile transmission number as either may specify to the other by
written notice:
(a) JPMorgan Chase Bank
Four New York Plaza
New York, New York 10004
Attention: ADR Administration
Fax: (212) 623-0079
(b) China Life Insurance Company Limited
16 Chaowai Avenue
Chaoyang District
Beijing 100020, China
Attention: [CONTACT PERSON]
Fax: [FACSIMILE]
18. Miscellaneous. This Deposit Agreement is for the exclusive benefit
of the Company, the Depositary, the Holders, and their respective successors
hereunder, and shall
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not give any legal or equitable right, remedy or claim whatsoever to any other
person. The Holders and owners of ADRs from time to time shall be parties to
this Deposit Agreement and shall be bound by all of the provisions hereof. If
any such provision is invalid, illegal or unenforceable in any respect, the
remaining provisions shall in no way be affected thereby. This Deposit Agreement
may be executed in any number of counterparts, each of which shall be deemed an
original and all of which shall constitute one instrument.
19. Consent to Jurisdiction. The Company hereby (i) designates and
appoints CT Corporation System, 111 Eighth Avenue, New York, New York 10019, in
the State of New York, as the Company's authorized agent upon which process may
be served in any suit, action or proceeding arising out of or based upon this
Deposit Agreement or the transactions contemplated hereby, and (ii) agrees that
the service of process upon said authorized agent shall be deemed in every
respect effective service of process upon the Company in any such suit, action
or proceeding. The Company agrees to deliver, upon the execution and delivery of
this Deposit Agreement, a written acceptance by such agent of its appointment as
such agent. The Company further agrees to take any and all action, including the
filing of any and all documents and instruments, that may be necessary to
continue such appointment in full force and effect for so long as any ADSs or
ADRs remain outstanding or this Deposit Agreement remains in force. The Company
also irrevocably agrees that any legal suit, action or proceeding against the
Company brought by the Depositary or any Holder, arising out of or based upon
this Deposit Agreement or the transactions contemplated hereby, may be
instituted in any state or federal court in New York, New York, and, with
respect to any legal suit, action or proceeding involving the Depositary or its
agents, irrevocably waives any objection which it may now or hereafter have to
the laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company expressly consents to the non-exclusive jurisdiction of
any such court in respect of any such action, and waives any other requirements
of or objections to personal jurisdiction with respect thereto. If, for any
reason, the agent named above or its successor shall no longer serve as agent
of the Company to receive service of process in New York, the Company shall
promptly appoint a successor acceptable to the Depositary, so as to serve and
will promptly advise the Depositary thereof. In the event the Company fails to
continue such designation and appointment in full force and effect, the Company
hereby waives personal service of process upon it and consents that any such
service of process may be made by certified or registered mail, return receipt
requested, directed to the Company at its address last specified for notices
hereunder, and service so made shall be deemed completed five (5) days after
the same shall have been so mailed. Notwithstanding the foregoing, any action
based on this Agreement may be instituted by the Depositary or any Holder in
any competent court in The People's Republic of China.
To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter be entitled to, or have attributed to it, any
right of immunity, on the grounds of sovereignty or otherwise, from any legal
action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its
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obligations, liabilities or other matter under or arising out of or in
connection with the Shares or Deposited Securities, the ADSs, the ADRs or this
Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
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IN WITNESS WHEREOF, CHINA LIFE INSURANCE COMPANY LIMITED and JPMORGAN
CHASE BANK have duly executed this Deposit Agreement as of the day and year
first above set forth and all holders of ADRs shall become parties hereto upon
acceptance by them of ADRs issued in accordance with the terms hereof.
CHINA LIFE INSURANCE COMPANY LIMITED
By:
---------------------------------
Name:
Title:
JPMORGAN CHASE BANK
By:
---------------------------------
Name:
Title: Vice President
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EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
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[FORM OF FACE OF ADR]
No. of ADSs:
Number
Each ADS represents
. Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
CLASS H ORDINARY SHARES
of
CHINA LIFE INSURANCE COMPANY LIMITED
(Incorporated under the
laws of The People's Republic of China)
JPMORGAN CHASE BANK, a New York corporation, as depositary hereunder (the
"Depositary"), hereby certifies that is the registered owner (a "Holder")
of American Depositary Shares ("ADSs"), each (subject to paragraph (13))
representing . overseas listed foreign-invested shares, or H shares (including
the rights to receive Shares described in paragraph (1), "Shares" and, together
with any other securities, cash or property from time to time held by the
Depositary in respect or in lieu of deposited Shares, the "Deposited
Securities"), of China Life Insurance Company Limited, a corporation organized
under the laws of The People's Republic of China (the "Company"), deposited
under the Deposit Agreement dated as of [DATE] , 2003 (as amended from time to
time, the "Deposit Agreement") among the Company, the Depositary and all Holders
from time to time of American Depositary Receipts issued thereunder ("ADRs"),
each of whom by accepting an ADR becomes a party thereto. The Deposit Agreement
and this ADR (which includes the provisions set forth on the reverse hereof)
shall be governed by and construed in accordance with the laws of the State of
New York.
(1) Issuance of ADRs. This ADR is one of the ADRs issued under the Deposit
A-1
Agreement. Subject to paragraph (4), the Depositary may so issue ADRs
for delivery at the Transfer Office (defined in paragraph (3)) only against
deposit with the Custodian of: (a) Shares in form satisfactory to the Custodian;
(b) rights to receive Shares from the Company or any registrar, transfer agent,
clearing agent or other entity recording Share ownership or transactions; or,
(c) other rights to receive Shares (until such Shares are actually deposited
pursuant to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs
are fully collateralized (marked to market daily) with cash or U.S. government
securities held by the Depositary for the benefit of Holders (but such
collateral shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs agrees in writing with the Depositary that such recipient (a)
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary, (c) holds such Shares for the account of the Depositary and
(d) will deliver such Shares to the Custodian as soon as practicable and
promptly upon demand therefor and (iii) all Pre-released ADRs evidence not more
than 30% of all ADSs (excluding those evidenced by Pre-released ADRs), provided,
however, that the Depositary reserves the right to change or disregard such
limit from time to time as it deems appropriate. The Depositary may retain for
its own account any earnings on collateral for Pre-released ADRs and its charges
for issuance thereof. At the request, risk and expense of the person depositing
Shares, the Depositary may accept deposits for forwarding to the Custodian and
may deliver ADRs at a place other than its office. Every person depositing
Shares under the Deposit Agreement represents and warrants that such Shares are
validly issued and outstanding, fully paid, nonassessable and free of
pre-emptive rights, that the person making such deposit is duly authorized so to
do and that such Shares (A) are not "restricted securities" as such term is
defined in Rule 144 under the Securities Act of 1933 unless at the time of
deposit they may be freely transferred in accordance with Rule 144(k) and may
otherwise be offered and sold freely in the United States or (B) have been
registered under the Securities Act of 1933. Such representations and warranties
shall survive the deposit of Shares and issuance of ADRs. The Depositary will
not knowingly accept for deposit under the Deposit Agreement any Shares required
to be registered under the Securities Act of 1933 and not so registered; the
Depositary may refuse to accept for such deposit any Shares identified by the
Company in order to facilitate the Company's compliance with such Act.
(2) Withdrawal of Deposited Securities. Subject to paragraphs (4) and (5),
upon surrender of (i) a certificated ADR in form satisfactory to the Depositary
at the Transfer Office or (ii) proper instructions and documentation in the case
of a Direct Registration ADR, the Holder hereof is entitled to delivery at the
Custodian's office of the Deposited Securities at the time represented by the
ADSs evidenced by this ADR. At the request, risk and expense of the Holder
hereof, the Depositary may deliver such Deposited Securities at such other place
as may have been requested by the Holder. Notwithstanding any other provision of
the Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of Form
F-6 (as such instructions may be amended from time to time) under the Securities
Act of 1933.
(3) Transfers of ADRs. The Depositary or its agent will keep, at a
designated transfer office in the Borough of Manhattan, The City of New York
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include the Direct Registration
System, which at all reasonable times will be open for inspection by Holders and
the Company for the purpose of communicating with Holders in the interest of the
business
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of the Company or a matter relating to the Deposit Agreement and (b) facilities
for the delivery and receipt of ADRs. The term ADR Register includes the Direct
Registration System. Title to this ADR (and to the Deposited Securities
represented by the ADSs evidenced hereby), when properly endorsed (in the case
of ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer, is transferable by delivery with the same effect as in
the case of negotiable instruments under the laws of the State of New York;
provided that the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this ADR is registered on the ADR Register as the
absolute owner hereof for all purposes. Subject to paragraphs (4) and (5), this
ADR is transferable on the ADR Register and may be split into other ADRs or
combined with other ADRs into one ADR, evidencing the same number of ADSs
evidenced by this ADR, by the Holder hereof or by duly authorized attorney upon
surrender of this ADR at the Transfer Office properly endorsed (in the case of
ADRs in certificated form) or upon delivery to the Depositary of proper
instruments of transfer and duly stamped as may be required by applicable law;
provided that the Depositary may close the ADR Register at any time or from time
to time when deemed expedient by it or requested by the Company. At the request
of a Holder, the Depositary shall, for the purpose of substituting a
certificated ADR with a Direct Registration ADR, or vice versa, execute and
deliver a certificated ADR or a Direct Registration ADR, as the case may be, for
any authorized number of ADSs requested, evidencing the same aggregate number of
ADSs as those evidenced by the certificated ADR or Direct Registration ADR, as
the case may be, substituted.
(4) Certain Limitations. Prior to the issue, registration, registration of
transfer, split-up or combination of any ADR, the delivery of any distribution
in respect thereof, or, subject to the last sentence of paragraph (2), the
withdrawal of any Deposited Securities, and from time to time in the case of
clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require: (a) payment with respect thereto of (i) any stock
transfer or other tax or other governmental charge, (ii) any stock transfer or
registration fees in effect for the registration of transfers of Shares or other
Deposited Securities upon any applicable register and (iii) any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory to it of (i) the identity and genuineness of any signature and (ii)
such other information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial ownership of any
securities, compliance with applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this ADR,
as it may deem necessary or proper; and (c) compliance with such regulations as
the Depositary may establish consistent with the Deposit Agreement. The issuance
of ADRs, the acceptance of deposits of Shares, the registration, registration of
transfer, split-up or combination of ADRs or, subject to the last sentence of
paragraph (2), the withdrawal of Deposited Securities may be suspended,
generally or in particular instances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed advisable by
the Depositary or the Company.
(5) Taxes. If any tax or other governmental charge shall become payable by
or on behalf of the Custodian or the Depositary with respect to this ADR, any
Deposited Securities represented by the ADSs evidenced hereby or any
distribution thereon, such tax or other governmental charge shall be paid by the
Holder hereof to the Depositary. The Depositary
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may refuse to effect any registration, registration of transfer, split-up or
combination hereof or, subject to the last sentence of paragraph (2), any
withdrawal of such Deposited Securities until such payment is made. The
Depositary may also deduct from any distributions on or in respect of Deposited
Securities, or may sell by public or private sale for the account of the Holder
hereof any part or all of such Deposited Securities (after attempting by
reasonable means to notify the Holder hereof prior to such sale), and may apply
such deduction or the proceeds of any such sale in payment of such tax or other
governmental charge, the Holder hereof remaining liable for any deficiency, and
shall reduce the number of ADSs evidenced hereby to reflect any such sales of
Shares. In connection with any distribution to Holders, the Company will remit
to the appropriate governmental authority or agency all amounts (if any)
required to be withheld and owing to such authority or agency by the Company;
and the Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing to
such authority or agency by the Depositary or the Custodian. If the Depositary
determines that any distribution in property other than cash (including Shares
or rights) on Deposited Securities is subject to any tax that the Depositary or
the Custodian is obligated to withhold, the Depositary may dispose of all or a
portion of such property in such amounts and in such manner as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders
entitled thereto.
(6) Disclosure of Interests; Limitations on Ownership. To the extent that
the provisions of or governing any Deposited Securities may require disclosure
of or impose limits on beneficial or other ownership of Deposited Securities,
other Shares and other securities and may provide for blocking transfer, voting
or other rights to enforce such disclosure or limits, Holders and all persons
holding ADRs agree to comply with all such disclosure requirements and ownership
limitations and to cooperate with the Depositary in the Depositary's compliance
with any Company instructions in respect thereof.
Holders and holders of interests in ADSs will be subject to the provisions
of the Hong Kong Securities and Futures Ordinance (the "Ordinance") and any
other regulations of Hong Kong relating to disclosure of interests in Shares.
For the purpose of this paragraph, "interest" shall have the meaning set forth
in the Ordinance. Under the Ordinance, a Holder or holder of an interest in ADSs
may have a duty to notify the Company and the Stock Exchange of Hong Kong
Limited if such Holder or holder becomes aware that its interest in Shares
(including its interest in Shares represented by ADSs) equals or exceeds 10% of
the outstanding share capital of the Company. Such Holder or holder of an
interest in ADSs may be required to further notify the Company and the Hong Kong
Stock Exchange Limited of certain changes in such Holder or beneficial owner's
interest in the Shares after the first notification. Under the Ordinance, the
Company is obligated to make inquiries if the Company knows or reasonably
believes certain shareholders' interest in Shares (including their respective
interest in Shares represented by ADSs) exceeds 10% of the then-outstanding
share capital of the Company. The Depositary agrees that it shall use reasonable
efforts to comply with written instructions received from the Company requesting
that the Depositary forward any such requests for information relating to
certain shareholders' interest in ADSs to Holders and to forward to the Company
any responses to such requests received by the Depositary provided that nothing
herein shall be interpreted as obligating the Depositary to provide or obtain
any such information not provided to the
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Depositary by such Holders. No Holder may individually or with its nominees or
other persons acting in concert beneficially own more than 10% of the
outstanding share capital of the Company without the prior approval of the China
Insurance Regulatory Commission.
(7) Charges of Depositary. The Depositary may charge each person to whom
ADSs are issued against deposits of Shares, including deposits in respect of
Share Distributions, Rights and Other Distributions (as such terms are defined
in paragraph (10)), and each person surrendering ADSs for withdrawal of
Deposited Securities, U.S. $5.00 for each 100 ADSs (or portion thereof)
delivered or surrendered. The Depositary may sell (by public or private sale)
sufficient securities and property received in respect of Share Distributions,
Rights and Other Distributions prior to such deposit to pay such charge. The
following additional charges shall be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering ADRs or to whom
ADRs are issued (including, without limitation, issuance pursuant to a stock
dividend or stock split declared by the Company or an exchange of stock
regarding the ADRs or the Deposited Securities or a distribution of ADRs
pursuant to paragraph (10)), whichever is applicable (i) a fee of $.02 or less
per ADS (or portion thereof) for any Cash distribution made pursuant to the
Deposit Agreement, (ii) to the extent not prohibited by the rules of any stock
exchange or interdealer quotation system upon which the ADSs are traded, a fee
of $1.50 per ADR or ADRs for transfers made pursuant to paragraph (3) hereof,
(iii) a fee for the distribution of securities pursuant to paragraph (10)
hereof, such fee being in an amount equal to the fee for the execution and
delivery of ADSs referred to above which would have been charged as a result of
the deposit of such securities (for purposes of this paragraph (7) treating all
such securities as if they were Shares) but which securities or the net cash
proceeds from the sale thereof are instead distributed by the Depositary to
Holders entitled thereto, or (iv) such fees and expenses as are incurred by the
Depositary (including without limitation expenses incurred on behalf of Holders
in connection with compliance with foreign exchange control regulations or any
law or regulation relating to foreign investment) in delivery of Deposited
Securities or otherwise in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation. The Company will pay all
other charges and expenses of the Depositary and any agent of the Depositary
(except the Custodian) pursuant to agreements from time to time between the
Company and the Depositary, except (i) stock transfer or other taxes and other
governmental charges (which are payable by Holders or persons depositing
Shares), (ii) cable, telex and facsimile transmission and delivery charges
incurred at the request of persons depositing, or Holders delivering Shares,
ADRs or Deposited Securities (which are payable by such persons or Holders),
(iii) transfer or registration fees for the registration of transfer of
Deposited Securities on any applicable register in connection with the deposit
or withdrawal of Deposited Securities (which are payable by persons depositing
Shares or Holders withdrawing Deposited Securities; there are no such fees in
respect of the Shares as of the date of the Deposit Agreement), and (iv)
expenses of the Depositary in connection with the conversion of foreign currency
into U.S. dollars (which are paid out of such foreign currency). These charges
may be changed in the manner indicated in paragraph (16).
(8) Available Information. The Deposit Agreement, the provisions of or
governing Deposited Securities and any written communications from the Company,
which are both received by the Custodian or its nominee as a holder of Deposited
Securities and made generally available to the holders of Deposited Securities,
are available for inspection by Holders at the offices of the Depositary and the
Custodian and at the Transfer Office. The
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Depositary will distribute copies of such communications (or English
translations or summaries thereof) to Holders when furnished by the Company. The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and accordingly files certain reports with the United
States Securities and Exchange Commission (the "Commission"). Such reports and
other information may be inspected and copied at public reference facilities
maintained by the Commission located at the date hereof at Judiciary Plaza, 450
Fifth Street, N.W., Washington, D.C. 20549.
(9) Execution. This ADR shall not be valid for any purpose unless executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary.
Dated:
JPMORGAN CHASE BANK, as Depositary
By
---------------------------------
Authorized Officer
The Depositary's office is located at 4 New York Plaza, New York, New
York 10004.
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[FORM OF REVERSE OF ADR]
(10) Distributions on Deposited Securities. Subject to paragraphs (4) and
(5), to the extent practicable, the Depositary will distribute to each Holder
entitled thereto on the record date set by the Depositary therefor at such
Holder's address shown on the ADR Register, in proportion to the number of
Deposited Securities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidenced by such
Holder's ADRs: (a) Cash. Any U.S. dollars available to the Depositary resulting
from a cash dividend or other cash distribution or the net proceeds of sales of
any other distribution or portion thereof authorized in this paragraph (10)
("Cash"), on an averaged or other practicable basis, subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible or
impracticable with respect to certain Holders, and (iii) deduction of the
Depositary's expenses in (1) converting any foreign currency to U.S. dollars by
sale or in such other manner as the Depositary may determine to the extent that
it determines that such conversion may be made on a reasonable basis, (2)
transferring foreign currency or U.S. dollars to the United States by such means
as the Depositary may determine to the extent that it determines that such
transfer may be made on a reasonable basis, (3) obtaining any approval or
license of any governmental authority required for such conversion or transfer,
which is obtainable at a reasonable cost and within a reasonable time and (4)
making any sale by public or private means in any commercially reasonable
manner. (b) Shares. (i) Additional ADRs evidencing whole ADSs representing any
Shares available to the Depositary resulting from a dividend or free
distribution on Deposited Securities consisting of Shares (a "Share
Distribution") and (ii) U.S. dollars available to it resulting from the net
proceeds of sales of Shares received in a Share Distribution, which Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in the
case of Cash. (c) Rights. (i) Warrants or other instruments in the discretion of
the Depositary representing rights to acquire additional ADRs in respect of any
rights to subscribe for additional Shares or rights of any nature available to
the Depositary as a result of a distribution on Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to the Depositary that the Depositary may lawfully distribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to the
extent the Company does not so furnish such evidence and sales of Rights are
practicable, any U.S. dollars available to the Depositary from the net proceeds
of sales of Rights as in the case of Cash, or (iii) to the extent the Company
does not so furnish such evidence and such sales cannot practicably be
accomplished by reason of the nontransferability of the Rights, limited their
short duration or otherwise, nothing (and any Rights may lapse). (d) Other
Distributions. (i) Securities or property available to the Depositary resulting
from any distribution on Deposited Securities other than Cash, Share
Distributions and Rights ("Other Distributions"), by any means that the
Depositary may deem equitable and practicable, or (ii) to the extent the
Depositary deems distribution of such securities or property not to be equitable
and practicable, any U.S. dollars available to the Depositary from the net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will be distributed by checks drawn on a bank in the United
States for whole dollars and cents. Fractional cents will be withheld without
liability and dealt with by the Depositary in accordance with its then current
practices.
(11) Record Dates. The Depositary may, after consultation with the Company
if
A-7
practicable, fix a record date (which shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be entitled to receive any distribution on or in respect of
Deposited Securities, to give instructions for the exercise of any voting
rights, to receive any notice or to act in respect of other matters and only
such Holders shall be so entitled.
(12) Voting of Deposited Securities. As soon as practicable after receipt
from the Company of notice of any meeting or solicitation of consents or proxies
of holders of Shares or other Deposited Securities, the Depositary shall
distribute to Holders a notice stating (a) such information as is contained in
such notice and any solicitation materials, (b) that each Holder on the record
date set by the Depositary therefor, subject to any applicable provision of Hong
Kong or People's Republic of China law, will be entitled to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Deposited Securities represented by the ADSs evidenced by such Holder's ADRs and
(c) the manner in which such instructions may be given, including instructions
to give a discretionary proxy to a person designated by the Company. Upon
receipt of instructions of a Holder on such record date in the manner and on or
before the date established by the Depositary for such purpose, the Depositary
shall endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted the Deposited
Securities represented by the ADSs evidenced by such Holder's ADRs in accordance
with such instructions. The Depositary will not itself exercise any voting
discretion in respect of any Deposited Securities.
(13) Changes Affecting Deposited Securities. Subject to paragraphs (4) and
(5), the Depositary may, in its discretion, amend this ADR or distribute
additional or amended ADRs (with or without calling this ADR for exchange) or
cash, securities or property on the record date set by the Depositary therefor
to reflect any change in par value, split-up, consolidation, cancellation or
other reclassification of Deposited Securities, any Share Distribution or Other
Distribution not distributed to Holders or any cash, securities or property
available to the Depositary in respect of Deposited Securities from (and the
Depositary is hereby authorized to surrender any Deposited Securities to any
person and to sell by public or private sale any property received in connection
with) any recapitalization, reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all the assets of the
Company, and to the extent the Depositary does not so amend this ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute Deposited Securities and each ADS evidenced by this ADR shall
automatically represent its pro rata interest in the Deposited Securities as
then constituted.
(14) Exoneration. The Depositary, the Company, their agents and each of
them shall: (a) incur no liability (i) if any present or future law, regulation
of the United States, Hong Kong, the People's Republic of China or any other
country, or of any governmental or regulatory authority or stock exchange, the
provisions of or governing any Deposited Securities, act of God, war or other
circumstance beyond its control shall prevent, delay or subject to any civil or
criminal penalty any act which the Deposit Agreement or this ADR provides shall
be done or performed by it, or (ii) by reason of any exercise or failure to
exercise any discretion given it in the Deposit Agreement or this ADR; (b)
assume no liability except to perform its obligations to the extent they are
specifically set forth in this
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ADR and the Deposit Agreement without gross negligence or bad faith; (c) in the
case of the Depositary and its agents, be under no obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or this ADR; (d) in the case of the Company and its agents
hereunder be under no obligation to appear in, prosecute or defend any action,
suit or other proceeding in respect of any Deposited Securities or this ADR,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required; or (e) not be
liable for any action or inaction by it in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Shares for
deposit, any Holder, or any other person believed by it to be competent to give
such advice or information. The Depositary, its agents and the Company may rely
and shall be protected in acting upon any written notice, request, direction or
other document believed by them to be genuine and to have been signed or
presented by the proper party or parties. The Depositary and its agents will not
be responsible for any failure to carry out any instructions to vote any of the
Deposited Securities, for the manner in which any such vote is cast or for the
effect of any such vote. The Depositary and its agents may own and deal in any
class of securities of the Company and its affiliates and in ADRs.
Notwithstanding anything to the contrary set forth in the Deposit Agreement or
an ADR, the Depositary and its agents may fully respond to any and all demands
or requests for information maintained by or on its behalf in connection with
the Deposit Agreement, any Holder or Holders, any ADR or ADRs or otherwise
related hereto to the extent such information is requested or required by or
pursuant to any lawful authority, including without limitation laws, rules,
regulations, administrative or judicial process, banking, securities or other
regulators. The Company has agreed to indemnify the Depositary and its agents
under certain circumstances and the Depositary has agreed to indemnify the
Company under certain circumstances. Neither the Company nor the Depositary nor
any of their respective agents shall be liable to Holders or beneficial owners
of interests in ADSs for any indirect, special, punitive or consequential
damages. No disclaimer of liability under the Securities Act of 1933 is intended
by any provision hereof.
(15) Resignation and Removal of Depositary; the Custodian. The Depositary
may resign as Depositary by written notice of its election to do so delivered to
the Company, or be removed as Depositary by the Company by written notice of
such removal delivered to the Depositary. The Depositary may appoint substitute
or additional Custodians and the term "Custodian" refers to each Custodian or
all Custodians as the context requires.
(16) Amendment. Subject to the last sentence of paragraph (2), the ADRs and
the Deposit Agreement may be amended by the Company and the Depositary, provided
that any amendment that imposes or increases any fees or charges (other than
stock transfer or other taxes and other governmental charges, transfer or
registration fees, cable, telex or facsimile transmission costs, delivery costs
or other such expenses), or that shall otherwise prejudice any substantial
existing right of Holders, shall become effective 30 days after notice of such
amendment shall have been given to the Holders. Every Holder of an ADR at the
time any amendment to the Deposit Agreement so becomes effective shall be
deemed, by continuing to hold such ADR, to consent and agree to such amendment
and to be bound by the Deposit Agreement as amended thereby. In no event shall
any amendment impair the right of the Holder of any ADR to surrender such ADR
and receive the Deposited Securities represented thereby, except in order to
comply with mandatory provisions of applicable law. Any
A-9
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 of 1933 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. Notwithstanding the foregoing, if
any governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement or the form of ADR to
ensure compliance therewith, the Company and the Depositary may amend or
supplement the Deposit Agreement and the ADR at any time in accordance with such
changed rules. 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.
(17) Termination. Upon the resignation or removal of the Depositary
pursuant to the Deposit Agreement, the Depositary may, and shall at the written
direction of the Company, terminate the Deposit Agreement and this ADR by
mailing notice of such termination to the Holders at least 30 days prior to the
date fixed in such notice for such termination. After the date so fixed for
termination, the Depositary and its agents will perform no further acts under
the Deposit Agreement and this ADR, except to receive and hold (or sell)
distributions on Deposited Securities and deliver Deposited Securities being
withdrawn. As soon as practicable after the expiration of six months from the
date so fixed for termination, the Depositary shall sell the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in a
segregated account the net proceeds of such sales, together with any other cash
then held by it under the Deposit Agreement, without liability for interest, in
trust for the prorata benefit of the Holders of ADRs not theretofore
surrendered. After making such sale, the Depositary shall be discharged from all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net proceeds and other cash. After the date so fixed for termination,
the Company shall be discharged from all obligations under the Deposit Agreement
except for its obligations to the Depositary and its agents.
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