As
filed with the U.S. Securities and Exchange Commission on January 26,
2010
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________
FORM
F-6
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
For
Depositary Shares Evidenced by American Depositary Receipts
___________________
JinkoSolar
Holding Co., Ltd.
(Exact
name of issuer of deposited securities as specified in its charter)
N/A
(Translation
of issuer's name into English)
The
Cayman Islands
(Jurisdiction
of incorporation or organization of issuer)
JPMORGAN
CHASE BANK, N.A.
(Exact
name of depositary as specified in its charter)
4
New York Plaza, New York, NY 10004
Telephone
(212) 623-0636
(Address,
including zip code, and telephone number, including area code, of depositary's
principal executive offices)
____________________
CT
Corporation System
111
Eighth Avenue, 13th
Floor
New
York, New York 10011
Telephone:
(212) 604-1666
(Address,
including zip code, and telephone number, including area code, of agent for
service)
Copy
to:
|
Scott
A. Ziegler, Esq.
|
|
Ziegler,
Ziegler & Associates LLP
570
Lexington Avenue, 44th
Floor
New
York, New York 10022
(212)
319-7600
|
It is
proposed that this filing become effective under Rule 466
If a
separate registration statement has been filed to register the deposited shares,
check the following box. x
CALCULATION
OF REGISTRATION FEE
|
Title
of each class of
Securities
to be registered
|
Amount
to
be registered
|
Proposed
maximum aggregate price per unit (1)
|
Proposed
maximum
aggregate
offering price (2)
|
Amount
of
registration
fee
|
|
American
Depositary Shares evidenced by American Depositary Receipts, each American
Depositary Share representing two ordinary shares of JinkoSolar Holding
Co., Ltd.
|
100,000,000
American
Depositary Shares
|
$0.05
|
$5,000,000
|
$356.50
|
|
(1)
|
Each
unit represents one American Depositary
Share.
|
|
(2)
|
Estimated
solely for the purpose of calculating the registration
fee. Pursuant to Rule 457(k), such estimate is computed on
the basis of the maximum aggregate fees or charges to be imposed in
connection with the issuance of American Depositary Receipts evidencing
American Depositary Shares.
|
The
Registrant hereby amends this Registration Statement on such date or dates as
may be necessary to delay its effective date until the Registrant shall file a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
PART
I
INFORMATION
REQUIRED IN PROSPECTUS
The
Prospectus consists of the proposed form of American Depositary Receipt (“ADR”
or “American Depositary Receipt”) included as Exhibit A to the form of Deposit
Agreement filed as Exhibit (a) to this Registration Statement, which is
incorporated herein by reference.
CROSS
REFERENCE SHEET
Item
1. DESCRIPTION OF SECURITIES TO BE REGISTERED
| Item Number and Caption |
Location
in Form of American Depositary
Receipt Filed Herewith
as Prospectus
|
|||
| (1) | Name and address of Depositary |
Introductory
paragraph and bottom of face of American Depositary
Receipt
|
||
| (2) | Title of American Depositary Receipts and identity of deposited securities |
Face
of American Depositary Receipt, top center
|
||
| Terms of Deposit: | ||||
| (i) |
Amount
of deposited securities represented by one unit of American Depositary
Shares
|
Face
of American Depositary Receipt, upper right corner
|
||
| (ii) |
Procedure
for voting, if any, the deposited securities
|
Paragraph
(12)
|
||
| (iii) |
Collection
and distribution of dividends
|
Paragraphs
(4), (5), (7) and (10)
|
||
| (iv) |
Transmission
of notices, reports and proxy soliciting material
|
Paragraphs
(3), (8) and (12)
|
||
| (v) |
Sale
or exercise of rights
|
Paragraphs
(4), (5) and (10)
|
||
| (vi) |
Deposit
or sale of securities resulting from dividends, splits or plans of
reorganization
|
Paragraphs
(4), (5), (10) and (13)
|
||
| (vii) |
Amendment,
extension or termination of the Deposit Agreement
|
Paragraphs
(16) and (17)
|
||
| (viii) |
Rights
of holders of ADRs to inspect the transfer books of the Depositary and the
list of Holders of ADRs
|
Paragraph
(3)
|
||
| (ix) |
Restrictions
upon the right to deposit or withdraw the underlying
securities
|
Paragraphs
(1), (2), (4), and (5)
|
||
| (x) |
Limitation
upon the liability of the Depositary
|
Paragraph
(14)
|
||
| (3) | Fees and Charges |
Paragraph
(7)
|
||
Item
2. AVAILABLE INFORMATION
|
Item Number and
Caption
|
Location
in Form of American Depositary
Receipt Filed Herewith
as Prospectus
|
|||
| (b) |
Statement
that JinkoSolar Holding Co., Ltd. is subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended, and,
accordingly files certain reports with the Securities and Exchange
Commission, and that such reports can be inspected by holders of American
Depositary Receipts and copied at public reference facilities maintained
by the Securities and Exchange Commission in Washington,
D.C.
|
Paragraph
(8)
|
||
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
3. EXHIBITS
|
|
(a)
|
Form of Deposit
Agreement. Form of Deposit Agreement dated as
of , 2010
among JinkoSolar Holding Co., Ltd., JPMorgan Chase Bank, N.A., as
depositary (the "Depositary"), and all holders from time to time of ADRs
issued thereunder (the "Deposit Agreement"), including the Form of
American Depositary Receipt, is filed herewith as Exhibit
(a).
|
|
|
(b)
|
Any other agreement to which
the Depositary is a party relating to the issuance of the American
Depositary Shares registered hereunder or the custody of the deposited
securities represented thereby. Not
Applicable.
|
|
|
(c)
|
Every material contract
relating to the deposited securities between the Depositary and the issuer
of the deposited securities in effect at any time within the last three
years. Not
Applicable.
|
|
|
(d)
|
Opinion of counsel to the
Depositary as to the legality of the securities being
registered. Filed herewith as Exhibit
(d).
|
|
|
(e)
|
Certification under Rule
466. Not
applicable.
|
Item
4. UNDERTAKINGS
|
|
(a)
|
The
Depositary hereby undertakes to make available at the principal office of
the Depositary in the United States, for inspection by holders of the
American Depositary Receipts, any reports and communications received from
the issuer of the deposited securities which are both (1) received by
the Depositary as the holder of the deposited securities, and
(2) made generally available to the holders of the underlying
securities by the issuer.
|
|
|
(b)
|
If
the amounts of fees charged are not disclosed in the prospectus, the
Depositary undertakes to prepare a separate document stating the amount of
any fee charged and describing the service for which it is charged and to
deliver promptly a copy of such fee schedule without charge to anyone upon
request. The Depositary undertakes to notify each registered
holder of an American Depositary Receipt thirty days before any change in
the fee schedule.
|
SIGNATURE
Pursuant
to the requirements of the Securities Act of 1933, as amended, JPMorgan Chase
Bank, N.A. on behalf of the legal entity created by the Deposit Agreement,
certifies that it has reasonable grounds to believe that all the requirements
for filing on Form F-6 are met and has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in The
City of New York, State of New York, on January 26, 2010.
|
Legal
entity created by the form of Deposit Agreement for the issuance of ADRs
evidencing American Depositary Shares
|
|||
|
By:
|
JPMORGAN
CHASE BANK, N.A., as Depositary
|
||
|
|
By:
|
/s/Joseph M. Leinhauser
|
|
|
Name:
Joseph M. Leinhauser
Title:
Vice President
|
|||
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, JinkoSolar Holding Co., Ltd.
certifies that it has reasonable grounds to believe that all the requirements
for filing on Form F-6 are met and has duly caused this Registration Statement
on Form F-6 to be signed on its behalf by the undersigned, thereunto duly
authorized, on January 26, 2010.
|
JinkoSolar
Holding Co., Ltd.
|
|||
|
|
By:
|
/s/Kangping Chen
|
|
|
Name:
Kangping Chen
|
|||
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below does
hereby constitute and appoint Kangping Chen and Longgen Zhang, and each of them
singly, as his true and lawful attorneys-in-fact and agents, each with full
power of substitution and re-substitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement and sign any
registration statement for the same offering covered by this Registration
Statement that is to be effective upon filing pursuant to Rule 462(b)
promulgated under the Securities Act of 1933, as amended, and all post-effective
amendments thereto and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their
or his substitutes or substitutes, may lawfully do or cause to be done by virtue
hereof. Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Under the
requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons on January 26, 2010, in the
capacities indicated.
SIGNATURES
|
Signature
|
Title
|
|
|
/s/Xiande
Li
|
||
|
Xiande
Li
|
Chairman
|
|
|
/s/Kangping
Chen
|
||
|
Kangping
Chen
|
Director
and Chief Executive Officer (principal executive
officer)
|
|
|
/s/Xianhua
Li
|
||
|
Xianhua
Li
|
Director
and Vice President
|
|
|
/s/Longgen
Zhang
|
||
|
Longgen
Zhang
|
Chief
Financial Officer (principal financial and accounting
officer)
|
|
|
/s/Wing
Keong Siew
|
||
|
Wing
Keong Siew
|
Director
|
|
|
/s/Haitao
Jin
|
||
|
Haitao
Jin
|
Director
|
|
|
/s/Zibin
Li
|
||
|
Zibin
Li
|
Director
|
|
|
/s/Steven
Markscheid
|
||
|
Steven
Markscheid
|
Director
|
|
SIGNATURE
OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Under the
Securities Act of 1933, as amended, the undersigned, the duly authorized
representative in the United States of JinkoSolar Holding Co., Ltd., has signed
this Registration Statement on Form F-6 and Power of Attorney in Newark Delaware
on January 26, 2010.
|
Authorized
U.S. Representative
|
|||
|
|
By:
|
/s/Donald
J. Puglisi
|
|
|
Name:
Donald J. Puglisi
Title:
Managing Director
|
|||
INDEX
TO EXHIBITS
|
Exhibit
Number
|
Sequentially
Numbered
Page
|
|
|
(a)
|
Form
of Deposit Agreement.
|
|
|
(d)
|
Opinion
of counsel to the Depositary, as to the legality of the securities to be
registered.
|
J.P.Morgan
J.P.Morgan
TABLE
OF CONTENTS
Page
|
PARTIES
|
1
|
|||
|
RECITALS
|
1
|
|||
|
Section
1.
|
Certain
Definitions
|
|||
|
(a)
|
ADR
Register
|
1
|
||
|
(b)
|
ADRs;
Direct Registration ADRs
|
1
|
||
|
(c)
|
ADS
|
1
|
||
|
(d)
|
Custodian
|
1
|
||
|
(e)
|
Deliver,
execute, issue et al.
|
1
|
||
|
(f)
|
Delivery
Order
|
1
|
||
|
(g)
|
Deposited
Securities
|
2
|
||
|
(h)
|
Direct
Registration System
|
2
|
||
|
(i)
|
Holder
|
2
|
||
|
(j)
|
Securities
Act of 1933
|
2
|
||
|
(k)
|
Securities
Exchange Act of 1934
|
2
|
||
|
(l)
|
Shares
|
2
|
||
|
(m)
|
Transfer
Office
|
2
|
||
|
(n)
|
Withdrawal
Order
|
2
|
||
|
Section
2.
|
ADRs
|
2
|
||
|
Section
3.
|
Deposit
of Shares
|
3
|
||
|
Section
4.
|
Issue
of ADRs
|
3
|
||
|
Section
5.
|
Distributions
on Deposited Securities
|
4
|
||
|
Section
6.
|
Withdrawal
of Deposited Securities
|
4
|
||
|
Section
7.
|
Substitution
of ADRs
|
4
|
||
|
Section
8.
|
Cancellation
and Destruction of ADRs
|
5
|
||
|
Section
9.
|
The
Custodian
|
5
|
||
|
Section
10.
|
Co-Registrars
and Co-Transfer Agents
|
5
|
||
|
Section
11.
|
Lists
of Holders
|
5
|
||
|
Section
12.
|
Depositary's
Agents
|
5
|
||
|
Section
13.
|
Successor
Depositary
|
6
|
||
|
Section
14.
|
Reports
|
6
|
||
|
Section
15.
|
Additional
Shares
|
7
|
||
|
Section
16.
|
Indemnification
|
7
|
||
|
Section
17.
|
Notices
|
8
|
||
|
Section
18.
|
Miscellaneous
|
8
|
||
|
Section
19.
|
Consent
to Jurisdiction
|
8
|
||
|
TESTIMONIUM
|
11
|
|||
|
SIGNATURES
|
11
|
|||
- i
- -
J.P.Morgan
Page
EXHIBIT
A
|
FORM
OF FACE OF ADR
|
A-1
|
|||
|
Introductory
Paragraph
|
A-1
|
|||
|
(1)
|
Issuance
of ADRs and Pre-Release of ADRs
|
A-2
|
||
|
(2)
|
Withdrawal
of Deposited Securities
|
A-3
|
||
|
(3)
|
Transfers
of ADRs
|
A-4
|
||
|
(4)
|
Certain
Limitations
|
A-4
|
||
|
(5)
|
Taxes
|
A-5
|
||
|
(6)
|
Disclosure
of Interests
|
A-6
|
||
|
(7)
|
Charges
of Depositary
|
A-6
|
||
|
(8)
|
Available
Information
|
A-7
|
||
|
(9)
|
Execution
|
A-8
|
||
|
Signature
of Depositary
|
A-8
|
|||
|
Address
of Depositary's Office
|
A-8
|
|||
|
FORM
OF REVERSE OF ADR
|
A-9
|
|||
|
(10)
|
Distributions
on Deposited Securities
|
A-9
|
||
|
(11)
|
Record
Dates
|
A-10
|
||
|
(12)
|
Voting
of Deposited Securities
|
A-10
|
||
|
(13)
|
Changes
Affecting Deposited Securities
|
A-10
|
||
|
(14)
|
Exoneration
|
A-11
|
||
|
(15)
|
Resignation
and Removal of Depositary; the Custodian
|
A-12
|
||
|
(16)
|
Amendment
|
A-12
|
||
|
(17)
|
Termination
|
A-13
|
||
|
(18)
|
Appointment
|
A-14
|
||
|
(19)
|
Waiver
|
A-14
|
||
- ii
- -
J.P.Morgan
DEPOSIT
AGREEMENT dated as of [DATE] , 2010 (the "Deposit Agreement") among
JinkoSolar Holding Co., Ltd. and its successors (the "Company"), JPMORGAN CHASE
BANK, N.A., 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 Company hereby appoints the Depositary as
depositary for the Deposited Securities and hereby authorizes and directs the
Depositary to act in accordance with the terms set forth in this Deposit
Agreement. All capitalized terms used herein have the meanings
ascribed to them in Section 1 or elsewhere in this Deposit Agreement. 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 two 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.
1
J.P.Morgan
(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 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
ordinary shares of the Company, 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.
2
J.P.Morgan
(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 duly executed
instruments of transfer in respect of such deposited Shares; (c) instruments
assigning to the Depositary, the Custodian or a nominee of either 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 Depositary, the Custodian or a
nominee of either, 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.
3
J.P.Morgan
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 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.
4
J.P.Morgan
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 reserves the right to add, replace or remove a
Custodian. The Depositary will give the Company prompt notice of any
such action, which will be advance notice if practicable. Each
Custodian so appointed (other than JPMorgan Chase Bank, N.A.) 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, N.A.) 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.
5
J.P.Morgan
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 such obligations as if no agent were
appointed, subject to paragraph (14) of the form of ADR.
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, such resignation to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter
provided. The Depositary may at any time be removed by the Company by
providing no less than 90 days prior written notice of such removal to the
Depositary, such removal to take effect the later of (i) the 90th day
after such notice of removal is first provided and (ii) the appointment of a
successor depositary and its acceptance of such appointment as hereinafter
provided. Notwithstanding the foregoing, if upon the resignation or removal of
the Depositary a successor depositary is not appointed within the applicable
45-day period (in the case of resignation) or 90-day period (in the case of
removal) as specified in paragraph (17) of the form of ADR, then the Depositary
may elect to terminate this Deposit Agreement and the ADR and the provisions of
said paragraph (17) shall thereafter govern the Depositary's obligations
hereunder. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its
predecessor. The predecessor depositary, only upon payment of all
sums due to 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 its rights to indemnification and fees
owing, each of which shall survive any such removal and/or resignation),
(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 ADRs. Any such successor
depositary shall promptly mail notice of its appointment to such
Holders. 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.
6
J.P.Morgan
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
connection 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 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 willful misconduct of the Depositary or its agents acting in their
capacity as such hereunder.
The
indemnities set forth in the preceding paragraph shall also 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 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.
7
J.P.Morgan
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 or its agents acting in
their capacity as such hereunder.
Notwithstanding
any other provision of this Deposit Agreement or the ADRs 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 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. Failure to notify a Holder or any defect in the notification to a Holder
shall not affect the sufficiency of notification to other Holders or to the
beneficial owners of ADSs held by such other Holders. 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, N.A.
|
Four New
York Plaza
New York,
New York 10004
Attention: ADR
Administration
Fax:
(212) 623-0079
|
|
(b)
|
JinkoSolar
Holding Co., Ltd.
|
|
|
1
Jingke Road
|
|
|
Shangrao
Economic Development Zone
|
|
|
Jiangxi
Province, 334100
|
|
|
People’s
Republic of China
|
|
|
Attention:
[Chief Financial Officer]
|
|
|
Fax:
(86-793) 846-1152
|
8
J.P.Morgan
18. Miscellaneous. This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary,
the Holders, and their respective successors hereunder, and shall 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 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 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 also irrevocably agrees that any legal suit,
action or proceeding against the Depositary brought by the Company, arising out
of or based upon this Deposit Agreement or the transactions contemplated hereby,
may only be instituted in a state or federal court in New York, New York. The
Company has appointed [CT Corporation System, 111 Eighth Avenue, 13th Floor, New
York, New York 10011], as its authorized agent (the "Authorized Agent") upon
which process may be served in any such action arising out of or based on this
Deposit Agreement or the transactions contemplated hereby which may be
instituted in any state or federal court in New York, New York by the Depositary
or any Holder, and waives any other requirements of or objections to personal
jurisdiction with respect thereto. The Company represents and
warrants that the Authorized Agent has agreed to act as said agent for service
of process, and the Company 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 as aforesaid. Service of
process upon the Authorized Agent and written notice of such service to the
Company shall be deemed, in every respect, effective service of process upon the
Company. If, for any reason, the Authorized 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
Deposit Agreement may be instituted by the Depositary or any Holder in any
competent court in the Cayman Islands, Hong Kong or the People's Republic of
China.
9
J.P.Morgan
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 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
Deposit Agreement, the Company, to the fullest extent permitted by law, hereby
irrevocably and unconditionally waives, and agrees not to plead or claim, any
such immunity and consents to such relief and enforcement.
EACH
PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH HOLDER
AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS) HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE
TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE DEPOSITARY
AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE
SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs, THE DEPOSIT
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH
HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY OTHER
THEORY).
10
J.P.Morgan
IN
WITNESS WHEREOF, JINKOSOLAR HOLDING CO., LTD. and JPMORGAN CHASE BANK, N.A. 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.
|
JINKOSOLAR
HOLDING CO., LTD.
|
|||
|
|
By:
|
||
|
Name:
|
|||
| Title: | |||
|
JPMORGAN
CHASE BANK, N.A.
|
|||
|
|
By:
|
||
|
Name:
|
|||
|
Title:
Vice President
|
|||
11
J.P.Morgan
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM OF
FACE OF ADR]
|
No.
of ADSs:
|
|||
|
Number
|
Each
ADS represents
Two
Shares
CUSIP:
|
||
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
ORDINARY
SHARES
of
JINKOSOLAR
HOLDING CO., LTD.
(Incorporated
under the laws of the Cayman Islands)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of the
United States of America, 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 two
ordinary 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 JinkoSolar Holding Co., Ltd., a corporation
organized under the laws of the Cayman Islands (the "Company"), deposited under
the Deposit Agreement dated as of [DATE] , 2010 (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.
A-1
J.P.Morgan
(1) Issuance of ADRs;
Pre-Release. This ADR is one of the ADRs issued under the
Deposit Agreement. Subject to paragraph (4), the Depositary may so
issue ADRs for delivery at the Transfer Office (defined in paragraph (3)) only
against deposit 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) in accordance with the next sub-paragraph of this paragraph
(1).
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
and (ii) deliver Shares prior to the receipt of ADSs for withdrawal of Deposited
Securities, including ADSs which were issued under (i) above but for which
Shares may not have been received (each such transaction a "Pre-Release"). The
Depositary may receive ADSs in lieu of Shares under (i) above (which ADSs will
promptly be canceled by the Depositary upon receipt by the Depositary) and
receive Shares in lieu of ADSs under (ii) above. Each such Pre-Release will be
subject to a written agreement whereby the person or entity (the "Applicant") to
whom ADSs or Shares are to be delivered (a) represents that at the time of the
Pre-Release the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release, (b) 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, (c) unconditionally guarantees to
deliver to the Depositary or the Custodian, as applicable, such Shares or ADSs,
and (d) agrees to any additional restrictions or requirements that the
Depositary deems appropriate. Each such Pre-Release will be at all times fully
collateralized with cash, U.S. government securities or such other collateral as
the Depositary deems appropriate, terminable by the Depositary on not more than
five (5) business days' notice and 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 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 with any one person on a case-by-case
basis as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not the earnings thereon, shall be held for
the benefit of the Holders (other than the Applicant).
A-2
J.P.Morgan
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 ("Restricted
Securities") unless at the time of deposit the requirements of paragraphs (c),
(e), (f) and (h) of Rule 144 shall not apply and such Shares may be freely
transferred and may otherwise be offered and sold freely in the United States or
(B) have been registered under the Securities Act of 1933. To the extent the
person depositing Shares is an "affiliate" of the Company as such term is
defined in Rule 144, the person also represents and warrants that upon the sale
of the ADSs, all of the provisions of Rule 144 which enable the Shares to be
freely sold (in the form of ADSs) will be fully complied with and, as a result
thereof, all of the ADSs issued in respect of such Shares will not be on the
sale thereof, Restricted Securities. 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, or to the extent
in dematerialized form from, the Custodian's office of the Deposited Securities
at the time represented by the ADSs evidenced by this ADR, provided that the
Depositary may deliver Shares prior to the receipt of ADSs for withdrawal of
Deposited Securities, including ADSs which were issued under (1) above but for
which Shares may not have been received (until such ADSs are actually deposited,
"Pre-released Shares") only if all the conditions in (1) above
related to such Pre-Release are satisfied). 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.
A-3
J.P.Morgan
(3) Transfers of
ADRs. The Depositary or its agent will keep, at a designated
transfer office (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 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 and neither the Depositary nor the Company will have any
obligation or be subject to any liability under the Deposit Agreement to any
holder of an ADR, unless such holder is the Holder thereof. 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 aggregate number of ADSs surrendered for split-up or combination, 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 when
requested by the Company in order to comply with applicable law. 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 of any signatory 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.
A-4
J.P.Morgan
(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 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. Each
Holder of an ADR or an interest therein agrees to indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents
and affiliates against, and hold each of them harmless from, any claims by any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
A-5
J.P.Morgan
(6) Disclosure of
Interests. 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
comply with any reasonable Company instructions in respect thereof. The Company
reserves the right to instruct Holders to deliver their ADSs for cancellation
and withdrawal of the Deposited Securities so as to permit the Company to deal
directly with the Holder thereof as a holder of Shares and Holders agree to
comply with such instructions. The Depositary agrees to
cooperate with the Company in its efforts to inform Holders of the Company's
exercise of its rights under this paragraph and agrees to consult with, and
provide reasonable assistance without risk, liability or expense on the part of
the Depositary, to the Company on the manner or manners in which it may enforce
such rights with respect to any Holder.
A-6
J.P.Morgan
(7) Charges of
Depositary. The Depositary may charge, and collect from, (i)
each person to whom ADSs are issued, including, without limitation,
issuances against deposits of Shares, issuances in respect of Share
Distributions, Rights and Other Distributions (as such terms are defined in
paragraph (10)), issuances pursuant to a stock dividend or stock split
declared by the Company, or issuances pursuant to a merger, exchange of
securities or any other transaction or event affecting the ADSs or the Deposited
Securities, and (ii) each person surrendering ADSs for withdrawal of
Deposited Securities or whose ADSs are cancelled or reduced for any other
reason, U.S.$5.00 for each 100 ADSs (or portion thereof) issued, delivered,
reduced, cancelled or surrendered (as the case may be). 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 ADSs, to whom ADSs 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 ADSs or the Deposited Securities or a
distribution of ADSs pursuant to paragraph (10)), whichever is applicable (i) a
fee of U.S.$0.05 or less per ADS (or portion thereof) for any Cash distribution
made pursuant to the Deposit Agreement, (ii) a fee of U.S.$1.50 per ADR or ADRs
for transfers made pursuant to paragraph (3) hereof, (iii) a fee for the
distribution or sale 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, (iv) an
aggregate fee of U.S.$0.05 per ADS per calendar year (or portion thereof) for
services performed by the Depositary in administering the ADRs (which fee may be
charged on a periodic basis during each calendar year and shall be assessed
against Holders as of the record date or record dates set by the Depositary
during each calendar year and shall be payable at the sole discretion of the
Depositary by billing such Holders or by deducting such charge from one or more
cash dividends or other cash distributions), and (v) reimbursement of such fees,
charges and expenses as are incurred by the Depositary and/or any of the
Depositary's agents (including, without limitation, the Custodian and 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 connection with the servicing of the Shares or other Deposited
Securities, the delivery of Deposited Securities or otherwise in connection with
the Depositary's or its Custodian's compliance with applicable law, rule or
regulation (which charge shall be assessed on a proportionate basis against
Holders as of the record date or dates set by the depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders or by
deducting such charge from one or more cash dividends or other cash
distributions). 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 or 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). Such charges may at any time and from time to time be changed
by agreement between the Company and the Depositary.
A-7
J.P.Morgan
(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 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 100 F Street, NE, Washington, DC
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, N.A., as Depositary
|
|||
|
|
By:
|
|
|
| Authorized Officer | |||
The
Depositary's office is located at 4 New York Plaza, New York, New York
10004.
A-8
J.P.Morgan
[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 markets therefor, 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.
A-9
J.P.Morgan
(11) Record
Dates. The Depositary may, after consultation with the Company
if practicable, fix a record date (which, to the extent applicable, shall be as
near as practicable to any corresponding record date set by the Company) for the
determination of the Holders who shall be responsible for the fee assessed by
the Depositary for administration of the ADR program and for any expenses
provided for in paragraph (7) hereof as well as 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 or obligated.
(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 will, subject to any applicable provisions of Cayman
Island law, 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. There is no
guarantee that Holders generally or any Holder in particular will receive the
notice described above with sufficient time to enable such Holder to return any
voting instructions to the Depositary in a timely manner.
A-10
J.P.Morgan
(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, irrespective
of whether such Deposited Securities are surrendered or otherwise cancelled by
operation of law, rule, regulation or otherwise, 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.
A-11
J.P.Morgan
(14) Exoneration. The
Depositary, the Company, their agents and each of them shall: (a) incur no
liability (i) if any present or future law, rule, regulation , fiat, order or
decree of the United States, the Cayman
Islands, The People's Republic of China (including the Hong Kong Special
Administrative Region, the People's Republic of China) or any other country, or
of any governmental or regulatory authority or any securities exchange or market
or automated quotation system, the provisions of or governing any Deposited
Securities, any present or future provision of the Company's charter, any act of
God, war, terrorism or other circumstance beyond its control shall prevent or
delay, or shall cause any of them to be subject to any civil or criminal penalty
in connection with, any act which the Deposit Agreement or this ADR provides
shall be done or performed by it or them (including, without limitation, voting
pursuant to paragraph (12) hereof), 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 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 shall not be
liable for the acts or omissions made by any securities depository, clearing
agency or settlement system in connection with or arising out of book-entry
settlement of Deposited Securities or otherwise. The Depositary shall
not be responsible for, and shall incur no liability in connection with or
arising from, the insolvency of any Custodian that is not a branch or affiliate
of JPMorgan Chase Bank, N.A. 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 or thereto 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. None of the Depositary, the Custodian or the
Company shall be liable for the failure by any Holder or beneficial owner to
obtain the benefits of credits on the basis of non-U.S. tax paid against such
Holder's or beneficial owner's income tax liability. The Depositary and the
Company shall not incur any liability for any tax consequences that may be
incurred by Holders and beneficial owners on account of their ownership of the
ADRs or ADSs. 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 agents shall be liable to Holders or
beneficial owners of interests in ADSs for any indirect, special, punitive or
consequential damages (including, without limitation, lost profits) of any form
incurred by any person or entity, whether or not foreseeable and regardless of
the type of action in which such a claim may be brought. 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 so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment as provided in the Deposit Agreement.
The Depositary may at any time be removed by the Company by no less than
90 days prior written notice of such removal, to become effective upon the later
of (i) the 90th day after delivery of the notice to the Depositary and (ii) the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement. The Depositary may appoint substitute or
additional Custodians and the term "Custodian" refers to
each Custodian or all Custodians as the context requires.
A-12
J.P.Morgan
(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 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 or regulatory 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 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. Notice of any
amendment to the Deposit Agreement or form of ADRs shall not need to describe in
detail the specific amendments effectuated thereby, and failure to describe the
specific amendments in any such notice shall not render such notice invalid,
provided, however, that, in each such case, the notice given to the Holders
identifies a means for Holders to retrieve or receive the text of such amendment
(i.e., upon retrieval from the Securities and Exchange Commission's, the
Depositary's or the Company's website or upon request from the
Depositary).
A-13
J.P.Morgan
(17) Termination. 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; provided, however, if the Depositary shall have (i) resigned as
Depositary hereunder, notice of such termination by the Depositary shall not be
provided to Holders unless a successor depositary shall not be operating
hereunder within 45 days of the date of such resignation, or (ii) been removed
as Depositary hereunder, notice of such termination by the Depositary shall not
be provided to Holders unless a successor depositary shall not be operating
hereunder on the 90th day
after the Company's notice of removal was first provided to the
Depositary. 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 pro rata 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.
(18)
Appointment. Each
Holder and each person holding an interest in ADSs, upon acceptance of any ADSs
(or any interest therein) issued in accordance with the terms and conditions of
the Deposit Agreement shall be deemed for all purposes to (a) be a party to and
bound by the terms of the Deposit Agreement and the applicable ADR(s), and (b)
appoint the Depositary its attorney-in-fact, with full power to delegate, to act
on its behalf and to take any and all actions contemplated in the Deposit
Agreement and the applicable ADR(s), to adopt any and all procedures necessary
to comply with applicable law and to take such action as the Depositary in its
sole discretion may deem necessary or appropriate to carry out the purposes of
the Deposit Agreement and the applicable ADR(s), the taking of such actions to
be the conclusive determinant of the necessity and appropriateness
thereof.
(19)
Waiver. EACH
PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE
OF DOUBT, EACH HOLDER AND BENEFICIAL OWNER AND/OR HOLDER OF INTERESTS IN ADRS)
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING
AGAINST THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF
OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE ADSs OR THE ADRs,
THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE
BREACH HEREOF OR THEREOF (WHETHER BASED ON CONTRACT, TORT, COMMON LAW OR ANY
OTHER THEORY).
A-14
Ziegler,
Ziegler & Associates LLP
Counselors
at Law
570
Lexington Avenue, 44th
Floor
New
York, New York 10022
(212)
319-7600
Telecopier
(212) 319-7605
January
26, 2010
JPMorgan
Chase Bank, N.A., as Depositary
4 New
York Plaza
New York,
New York 10004
American
Depositary Shares
evidenced
by American Depositary Receipts
for
deposited ordinary shares of
JinkoSolar Holding Co.,
Ltd.
Dear
Sirs:
Referring
to the Registration Statement on Form F-6 relating to the above-entitled
American Depositary Shares ("ADSs") evidenced by American Depositary Receipts
("ADRs") each ADS representing two ordinary shares of JinkoSolar Holding Co.,
Ltd. (the "Company"), a corporation organized under the laws of the
Cayman Islands. Capitalized terms used herein that are not herein
defined shall have the meanings assigned to them in the Deposit Agreement (the
“Deposit Agreement”) appearing, or incorporated by reference, in Exhibit (a) to
the Registration Statement.
In
rendering the opinions set forth herein, we have assumed that (i) the Deposit
Agreement will have been duly authorized, executed and delivered by the Company
and the Depositary and will constitute a valid and legally binding obligation of
the Company enforceable against it in accordance with its terms, (ii) the
relevant Deposited Securities will have been duly deposited with a Custodian
under and in accordance with all applicable laws and regulations, (iii) that the
choice of New York law contained in the Deposit Agreement is legal and valid
under the laws of the Cayman Islands and (iv) that insofar as any obligation
under the Deposit Agreement is to be performed in, or by a party organized under
the laws of, any jurisdiction outside of the United States of America, its
performance will not be illegal or ineffective in any jurisdiction by virtue of
the law of that jurisdiction.
Based
upon and subject to the foregoing, we are of the opinion that the ADSs covered
by the Registration Statement, when evidenced by ADRs that are duly executed and
delivered by the Depositary and issued in accordance with the terms of the
Deposit Agreement, will be validly issued and will entitle the registered
holders thereof to the rights specified in the Deposit Agreement and those
ADRs.
The
foregoing opinion is limited to the laws of the State of New York, and we are
expressing no opinion as to the effect of the laws of any other
jurisdiction.
Nothing
contained herein or in any document referred to herein is intended by this firm
to be used, and the addressee hereof cannot use anything contained herein or in
any document referred to herein, as “tax advice” (within the meaning given to
such term by the U.S. Internal Revenue Service (“IRS”) in IRS Circular 230 and
any related interpretative advice issued by the IRS in respect of IRS Circular
230 prior to the date hereof, and hereinafter used within such meaning and
interpretative advice). Without admitting that anything contained herein or in
any document referred to herein constitutes “tax advice” for any purpose, notice
is hereby given that, to the extent anything contained herein or in any document
referred to herein constitutes, or is or may be interpreted by any court, by the
IRS or by any other administrative body to constitute, “tax advice,” such “tax
advice” is not intended or written to be used, and cannot be used, for the
purpose of (i) avoiding penalties under the U.S. Internal Revenue Code, or
(ii) promoting, marketing or recommending to any party any transaction or
matter addressed herein.
We hereby
consent to the use of this opinion as Exhibit d of the above-mentioned
Registration Statement. In giving such consent, we do not admit
thereby that we are within the category of persons whose consent is required
under Section 7 of the Securities Act of 1933, as amended.
Very
truly yours,
/s/Ziegler,
Ziegler & Associates LLP