As filed with the U.S. Securities and ExchangeCommission on May 23, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM F-6
REGISTRATION STATEMENT UNDER THE SECURITIESACT OF 1933
For Depositary Shares Evidenced by AmericanDepositary Receipts
___________________
Jiayin Group Inc.
(Exact name of issuer of deposited securitiesas specified in its charter)
n/a
(Translation of issuer's name into English)
Cayman Islands
(Jurisdiction of incorporation or organizationof issuer)
JPMORGAN CHASE BANK, N.A.
(Exact name of depositary as specified in itscharter)
383 Madison Avenue, Floor 11, New York, NewYork 10179
Telephone (800) 990-1135
(Address, including zip code, and telephone number,including area code, of
depositary's principal executive offices)
____________________
Cogency Global Inc.
122 East 42nd Street, 18th Floor
New York, New York 10168
Telephone (212) 947-7200
(Address, including zip code, and telephone number,including area code, of
agent for service)
Copy to:
Steve Lin, Esq. Scott A. Ziegler, Esq.
Justin Zhou You, Esq. Ziegler, Ziegler & Associates LLP
Kirkland & Ellis International LLP 570 Lexington Avenue, Suite 2405
c/o 26th Floor, Gloucester Tower, The Landmark New York, New York 10022
15 Queen's Road Central, Hong Kong (212) 319-7600
+852 3761 3300
It is proposed that this filing become effectiveunder Rule 466
immediatelyupon filing
on(Date) at (Time)
If a separate registration statement has been filedto register the deposited
shares, check the following box.
CALCULATION OF REGISTRATION FEE
Title of each class of Amount Proposed maximum Proposed maximum Amount of
Securities to to be registered aggregate price per unit aggregate offering price registration fee
be registered (1) (2)
American Depositary Shares evidenced 50,000,000 $0.05 $2,500,000 $369
by American Depositary Receipts, each American Depositary Shares
American Depositary Share representing
four (4) Class A Ordinary Shares
(1) Each unit represents one American Depositary Share.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), suchestimate is computed on the basis of the maximum
aggregate fees or charges to be imposed in connection with the issuance
of American DepositaryReceipts evidencing American Depositary Shares.
The Registrant hereby amends this Registration Statement on such dateor dates
as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically statesthat this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or untilthe Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section
8(a), may determine.
PART I
INFORMATION REQUIRED IN PROSPECTUS
The Prospectus consistsof the form of American Depositary Receipt ("ADR" or
"American Depositary Receipt") filed as Exhibit A to theform of Amended and
Restated Deposit Agreement filed as Exhibit (a) to this Registration Statement
on Form F-6, which is incorporatedherein by reference.
Item 1. DESCRIPTION OF SECURITIESTO BE REGISTERED
CROSS REFERENCE SHEET
Location in Form of American Depositary
Item Number and Caption Receipt Filed Herewith as Prospectus
(1) Name and address of Depositary Introductory paragraph and bottom of
face of American Depositary Receipt
(2) Titleof American Depositary Receipts Face of American Depositary
and identity of deposited securities Receipt, top center
Terms of Deposit:
(i) Amountof deposited securities represented Face of American Depositary
by one unit of American Depositary Shares Receipt, upper right corner
(ii) Procedurefor voting the Paragraph (12)
deposited securities
(iii) Procedurefor collecting and Paragraphs (4),
distributing dividends (5), (7) and (10)
(iv) Proceduresfor transmitting notices, Paragraphs (3),
reports and proxy soliciting material (8) and (12)
(v) Saleor exercise of rights Paragraphs (4),
(5) and (10)
(vi) Depositor sale of securities resulting from Paragraphs (4),
dividends, splits or plans of reorganization (5), (10) and (13)
(vii) Amendment,extension or termination Paragraphs (16) and (17)
of the Deposit Agreement
(viii) Rightsof holders of ADRs to inspect the transfer books Paragraph (3)
of the Depositary and the list of holders of ADRs
(ix) Restrictionsupon the right to transfer Paragraphs (1),
or withdraw the underlying securities (2), (4), and (5)
(x) Limitationupon the liability Paragraph (14)
of the Depositary
(3) Feesand charges that a holder of ADRs may Paragraph (7)
have to pay, either directly or indirectly
Item 2. AVAILABLE INFORMATION
Item Number and Caption Location in Form of American Depositary
ReceiptFiled Herewith as Prospectus
(b) Statement that Jiayin Group Inc. is subject to the Paragraph (8)
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 and copiedthrough
the Securities and Exchange Commission's EDGAR system
or at public reference facilities maintained by the
Securities andExchange Commission in Washington, D.C.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a) Form of Deposit Agreement
. Form of Amended and Restated Deposit Agreementdated as of , 2024 among
Jiayin Group Inc., JPMorgan Chase Bank, N.A., as depositary (the "Depositary"), and all
Holders andBeneficial Owners from time to time of ADRs issued thereunder (the "Deposit
Agreement"), including the form of American DepositaryReceipt. Filed herewith as Exhibit (a).
(b) Any other agreement to which the Depositary is a party relating to the issuanceof 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 Depositaryand
the issuer of the deposited securities in effect at any time within the last three years
. Not Applicable.
(d) Opinion of Ziegler, Ziegler & Associates LLP, 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.
(f) Powers of Attorney for certain officers and directors and the authorized
representativeof the Company. Set forth on the signature pages hereto.
Item 4. UNDERTAKINGS
(a) The Depositary hereby undertakes to make available at the principal office of theDepositary in the United States,
for inspection by holders of the American Depositary Receipts, any reports and communications receivedfrom
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 Depositaryundertakes to prepare a separate
document stating the amount of any fee charged and describing the service for which it is charged andto deliver
promptly a copy of such fee schedule without charge to anyone upon request. The Depositary undertakes to notify
each registeredholder of an American Depositary Receipt thirty days before any change in the fee schedule.
SIGNATURE
Pursuant to the requirementsof the Securities Act of 1933, as amended,
JPMorgan Chase Bank, N.A. on behalf of the legal entity created by the Deposit
Agreement, certifiesthat it has reasonable grounds to believe that all the
requirements for filing on Form F-6 are met and has duly caused this
RegistrationStatement on Form F-6 to be signed on its behalf by the
undersigned, thereunto duly authorized, in The City of New York, State of
NewYork, on May 23, 2024.
Legal entity created by the formof Deposit Agreement for the issuance of ADRs evidencing American Depositary Shares
By: JPMORGAN CHASE BANK, N.A., as Depositary
By: /s/ Gregory A. Levendis
Name: Gregory A. Levendis
Title: Executive Director
SIGNATURES
Pursuant to the requirementsof the Securities Act of 1933, Jiayin Group Inc.
certifies that it has reasonable grounds to believe that all the requirements
for filingon 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, thereuntoduly
authorized, on May 23, 2024.
By: /s/ Dinggui Yan
Name: Dinggui Yan
Title: Chief Executive Officer
POWERS OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that eachperson whose signature appears
below constitutes and appoints Dinggui Yan and Chunlin Fan, and each of them,
his or her true and lawfulattorneys-in-fact and agents, each with full power
of substitution and resubstitution, for him or her and in his or her name,
place andstead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement andany
and all related registration statements pursuant to Rule 462(b) of the
Securities Act, and to file the same, with all exhibits thereto,and other
documents in connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that saidattorneys-in-fact and
agents, or any of them, or their substitute or substitutes, may lawfully do or
cause to be done by virtue hereof.
Under the requirements of the Securities Act,this Registration Statement on
Form F-6 has been signed by the following persons on May 23, 2024, in the
capacities indicated.
SIGNATURES
Signature
Title
/s/ Dinggui Yan Founder,Chairman of the Board, Director and Chief Executive Officer (principal executive officer)
Dinggui Yan
/s/ Chunlin Fan ChiefFinancial Officer (principal financial and accounting officer)
Chunlin Fan
/s/ Yuhchang Hwang IndependentDirector
Yuhchang Hwang
/s/ Meng Rui IndependentDirector
Meng Rui
/s/ Yifang Xu Director and Chief RiskOfficer
Yifang Xu
/s/ Libin Wang Director and Vice Presidentof Finance
Libin Wang
SIGNATURE OF AUTHORIZED REPRESENTATIVE OF THEREGISTRANT
Under the Securities Act of 1933, as amended,the undersigned, the duly
authorized representative in the United States of Jiayin Group Inc., has
signed this Registration Statementon Form F-6 in New York on May 23, 2024.
Authorized U.S. Representative
By: /s/ Colleen A. De Vries
Name: Colleen A. De Vries
Title: Senior Vice-President on behalf of Cogency Global Inc.
INDEX TO EXHIBITS
Exhibit
Number
(a) Form of Amended and
Restated Deposit Agreement
(d) Opinion of Ziegler, Ziegler & Associates LLP, counsel to the
Depositary, as to the legality of the securities to be registered.
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TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
Section 1. Certain Definitions
(a) ADR Register 1
(b) ADRs; Direct Registration ADRs 1
(c) ADS 2
(d) Beneficial Owner 2
(e) Commission 2
(f) Custodian 2
(g) Deliver, execute, issue et al. 2
(h) Delivery Order 2
(i) Deposited Securities 2
(j) Direct Registration System 3
(k) Holder 3
(l) Removal Notice Date 3
(m) Resignation Notice Date 3
(n) Securities Act of 1933 3
(o) Securities Exchange Act of 1934 3
(p) Shares 3
(q) Termination Date 3
(r) Transfer Office 3
(s) Withdrawal Order 4
Section 2. Form of ADRs 4
Section 3. Deposit of Shares 4
Section 4. Issue of ADRs 5
Section 5. Distributions on Deposited Securities 5
Section 6. Withdrawal, Delivery and Transfer 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. Lists of Holders 7
Section 11. Depositary's Agents 8
Section 12. Resignation and Removal of the Depositary; Appointment of Successor Depositary 8
Section 13. Compliance with Securities Exchange Act of 1934 Reporting and Other Requirements; Reports 9
Section 14. Additional Shares 10
Section 15. Indemnification 10
Section 16. Notices 12
Section 17. Counterparts 13
Section 18. No Third-Party Beneficiaries; Holders and Beneficial Owners as Parties; Binding Effect 13
Section 19. Severability 13
Section 20. Governing Law; Consent to Jurisdiction 14
Section 21. Agent for Service 17
Section 22. Waiver of Immunities 18
Section 23. Waiver of Jury Trial 18
Section 24. Amendment and Restatement of Prior Deposit Agreement 19
TESTIMONIUM 20
SIGNATURES 20
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EXHIBIT A
Page
FORM OF FACE OF ADR A-1
Introductory Paragraph A-1
(1) Issuance of ADSs A-2
(2) Withdrawal of Deposited Securities A-3
(3) Transfers, Split-Ups and Combinations of ADRs A-3
(4) Certain Limitations to Registration, Transfer etc. A-4
(5) Liability of Holder or Beneficial Owner for Taxes, Duties and Other Charges A-5
(6) Disclosure of Interests A-6
(7) Charges of Depositary A-7
(8) Available Information A-10
(9) Execution A-11
Signature of Depositary A-11
Address of Depositary's Office A-11
FORM OF REVERSE OF ADR A-12
(10) Distributions on Deposited Securities; Sales A-12
(11) Record Dates A-15
(12) Voting of Deposited Securities A-15
(13) Changes Affecting Deposited Securities A-16
(14) Exoneration A-17
(15) Resignation and Removal of Depositary; the Custodian A-21
(16) Amendment A-22
(17) Termination A-23
(18) Appointment; Acknowledgements and Agreements A-27
(19) Waiver A-27
(20) Jurisdiction A-28
(21) Elective Distributions in Cash or Shares A-29
EXHIBIT B
EXHIBIT C
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AMENDED AND RESTATED DEPOSIT AGREEMENT, dated asof _____________ __, 2024 (the "
Deposit Agreement
"), among JIAYIN GROUP INC., a company incorporated under the laws ofthe
Cayman Islands, and its successors (the "
Company
"), JPMORGAN CHASE BANK, N.A., a national banking association organizedunder
the laws of the United States of America, as depositary hereunder (in such
capacity, the "
Depositary
"), and allHolders (as defined below) and Beneficial Owners (as defined below)
from time to time of American depositary receipts issued hereunderevidencing
American depositary shares ("
ADSs
") representing deposited Shares (as defined below). The Company hereby
appointsthe Depositary as depositary for the Deposited Securities (as defined
below) and hereby authorizes and directs the Depositary to act inaccordance
with the terms set forth in this Deposit Agreement. All capitalized terms used
herein have the meanings ascribed to them inSection 1 or elsewhere in this
Deposit Agreement.
WHEREAS, the Company and Citibank, N.A. enteredinto a Deposit Agreement, dated
as of May 9, 2019 (as the same may have been previously amended, the "
Prior Deposit Agreement
")for the purposes set forth therein, for the creation of American depositary
shares representing the Shares so deposited and for the executionand delivery
of American depositary receipts ("
Prior Receipts
") evidencing the American depositary shares;
WHEREAS, pursuant to the terms of the Prior DepositAgreement, the Company has
removed Citibank, N.A. as depositary and has appointed JPMorgan Chase Bank,
N.A. as successor depositary thereunder;
WHEREAS, pursuant to the terms of the Prior DepositAgreement, the Company and
the Depositary wish to amend and restate the Prior Deposit Agreement and the
Prior Receipts;
NOW THEREFORE, in consideration of the premises,subject to Section 24 hereof,
the parties hereto hereby amend and restate the Prior Deposit Agreement and
the Prior Receipts in theirentirety as follows:
1.
Certain Definitions
.
(a) "
ADRRegister
" is defined in paragraph (3) of the form of ADR (
Transfers, Split-Ups and Combinations of ADRs
).
(b) "
ADRs
"mean the American Depositary Receipts executed and delivered hereunder. ADRs
may be either in physical certificated form or Direct RegistrationADRs (as
hereinafter defined). ADRs in physical certificated form, and the terms and
conditions governing the Direct Registration ADRs,shall be substantially in
the form of Exhibit A annexed hereto (the "
form of ADR
"). The term "
Direct RegistrationADR
" means an ADR, the ownership of which is recorded on the Direct Registration
System. References to "ADRs" shallinclude certificated ADRs and Direct
Registration ADRs, unless the context otherwise requires. The form of ADR is
hereby incorporatedherein and made a part hereof; the provisions of the form
of ADR shall be binding upon the parties hereto.
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(c) Subjectto paragraph (13) of the form of ADR (
Changes Affecting Deposited Securities
), each "
ADS
" evidenced by an ADRrepresents the right to receive, and to exercise the
beneficial ownership interests in, the number of Shares specified in the form
ofADR attached hereto as Exhibit A (as may be amended from time to time) that
are on deposit with the Depositary and/or the Custodian anda pro rata share in
any other Deposited Securities, subject, in each case, to the terms of this
Deposit Agreement and the ADSs. The ADS(s)-to-Share(s)ratio is subject to
amendment as provided in the form of ADR (which may give rise to fees
contemplated in paragraph (7) thereof (
Chargesof Depositary
)).
(d) "
BeneficialOwner
" means as to any ADS, any person or entity having a beneficial ownership
interest in such ADS. A Beneficial Owner neednot be the Holder of the ADR
evidencing such ADS. If a Beneficial Owner of ADSs is not a Holder, it must
rely on the Holder of the ADR(s)evidencing such ADSs in order to assert any
rights or receive any benefits under this Deposit Agreement. The arrangements
between a BeneficialOwner of ADSs and the Holder of the corresponding ADRs may
affect the Beneficial Owner's ability to exercise any rights it may have.
(e) "
Commission
"means the United States Securities and Exchange Commission.
(f) "
Custodian
"means the agent or agents of the Depositary (singly or collectively, as the
context requires) and any additional or substitute Custodianappointed pursuant
to Section 9.
(g) Theterms "
deliver
," "
execute
," "
issue
," "
register
," "
surrender
,""
transfer
" or "
cancel
," when used with respect to Direct Registration ADRs, shall refer to an
entryor entries or an electronic transfer or transfers in the Direct
Registration System, and, when used with respect to ADRs in physical
certificatedform, shall refer to the physical delivery, execution, issuance,
registration, surrender, transfer or cancellation of certificates
representingthe ADRs.
(h) "
DeliveryOrder
" is defined in Section 3.
(i) "
DepositedSecurities
" 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 andother Shares, securities, property and cash. Deposited
Securities are not intended to, and shall not, constitute proprietary assets
ofthe Depositary, the Custodian or their nominees. Beneficial ownership in
Deposited Securities is intended to be, and shall at all timesduring the term
of the Deposit Agreement continue to be, vested in the Beneficial Owners of
the ADSs representing such Deposited Securities.
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(j) "
DirectRegistration System
" means the system for the uncertificated registration of ownership of
securities established by The DepositoryTrust Company ("
DTC
") and utilized by the Depositary pursuant to which the Depositary may record
the ownership of ADRswithout the issuance of a certificate, which ownership
shall be evidenced by periodic statements issued by the Depositary to the
Holdersentitled thereto. For purposes hereof, the Direct Registration System
shall include access to the Profile Modification System maintainedby DTC,
which provides for automated transfer of ownership between DTC and the
Depositary.
(k) "
Holder
"means the person or persons in whose name an ADR is registered on the ADR
Register. For all purposes under the Deposit Agreement and theADRs, a Holder
shall be deemed to have all requisite authority to act on behalf of any and
all Beneficial Owners of the ADSs evidencedby the ADR(s) registered in such
Holder's name.
(l) "
RemovalNotice Date
" means the earliest date on which the Company provided notice of removal to
the Depositary pursuant to Section 12(b)of this Deposit Agreement.
(m) "
ResignationNotice Date
" means the date on which the Depositary provided notice of its resignation to
the Company pursuant to Section 12(a)of this Deposit Agreement.
(n) "
SecuritiesAct of 1933
" means the United States Securities Act of 1933, as amended.
(o) "
SecuritiesExchange Act of 1934
" means the United States Securities Exchange Act of 1934, as amended.
(p) "
Shares
"mean the Class A ordinary shares of the Company, and shall include the rights
to receive Shares specified in paragraph (1) of the formof ADR (
Issuance of ADSs
).
(q) "
TerminationDate
" means the date this Deposit Agreement is terminated in accordance with
paragraph (17) of the form of ADR (
Termination
),which, for the avoidance of doubt, shall be either (i) the date fixed for
termination in a notice of termination as contemplated thereinor (ii) a date
determined by the Depositary in the case of a termination not requiring prior
notice of termination as contemplated insubparagraph (a)(iii) therein.
(r) "
TransferOffice
" is defined in paragraph (3) of the form of ADR (
Transfers, Split-Ups and Combinations of ADRs
).
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(s) "
WithdrawalOrder
" is defined in Section 6.
2.
Form of ADRs
.
(a)
DirectRegistration ADRs
. Notwithstanding anything in this Deposit Agreement or in the form of ADR to
the contrary, ADSs shall be evidencedby Direct Registration ADRs, unless
certificated ADRs are specifically requested by the Holder.
(b)
CertificatedADRs
. ADRs in certificated form shall be printed or otherwise reproduced at the
discretion of the Depositary in accordance with itscustomary practices in its
American depositary receipt business, or at the request of the Company
typewritten and photocopied on plainor 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 Depositaryor the Company to comply with their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitationsor restrictions to which any particular ADRs are
subject. ADRs may be issued in denominations of any number of ADSs. ADRs in
certificatedform shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized officer of the Depositary. ADRs
incertificated form bearing the manual or facsimile signature of anyone who
was at the time of execution a duly authorized officer of theDepositary shall
bind the Depositary, notwithstanding that such officer has ceased to hold such
office prior to the delivery of such ADRs.
(c)
BindingEffect.
Holders of ADRs, and the Beneficial Owners of the ADSs evidenced by such ADRs,
shall each be bound by the terms and conditionsof this Deposit Agreement and
of the form of ADR, regardless of whether such ADRs are Direct Registration
ADRs or certificated ADRs.
3.
Deposit of Shares
.
(a)
Requirements.
In connection with the deposit of Shares hereunder, the Depositary or the
Custodian shall require a writtenorder, in a form satisfactory to the
Depositary, directing the Depositary to issue to, or upon the written order
of, the person or personsdesignated in such order a Direct Registration ADR or
ADRs evidencing the number of ADSs representing such deposited Shares (a "
DeliveryOrder
"). Shares presented for deposit shall, at the time of such deposit, be
registered in the name of JPMorgan Chase Bank, N.A.,as depositary for the
benefit of holders of ADRs or in such other name as the Depositary shall
direct. Deposited Securities shall be heldby the Custodian for the account and
to the order of the Depositary for the benefit of Holders of ADRs (to the
extent not prohibited bylaw) at such place or places and in such manner as the
Depositary shall determine. Notwithstanding anything else contained herein,
inthe form of ADR and/or in any outstanding ADSs, the Depositary, the
Custodian and their respective nominees are intended to be, and shallat all
times during the term of this Deposit Agreement be, the record holder(s) only
of the Deposited Securities represented by the ADSsfor the benefit of the
Holders. The Depositary, on its own behalf and on behalf of the Custodian and
their respective nominees, disclaimsany beneficial ownership interest in the
Deposited Securities held on behalf of the Holders.
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(b)
Deliveryof Deposited Securities.
Deposited Securities may be delivered by the Custodian to any person only
under the circumstances expresslycontemplated in this Deposit Agreement. To
the extent that the provisions of or governing the Shares make delivery of
certificates thereforimpracticable, 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
accreditedintermediary, such as a bank, acting as a registrar for the Shares,
together with delivery of the documents, payments and Delivery Orderreferred
to herein to the Custodian or the Depositary.
4.
Issue of ADRs
. At the request, risk andexpense of the person depositing Shares or rights to
receive Shares, the Depositary may accept such Shares and/or deposits for
forwardingto the Custodian and may deliver ADRs at a place other than its
office. After any such deposit of Shares, the Custodian shall notify
theDepositary of such deposit and of the information contained in any related
Delivery Order by letter, first class airmail postage prepaid,or by SWIFT,
facsimile transmission or any other method of communication as may be agreed
by the Custodian and the Depositary. After receivingsuch notice from the
Custodian, the Depositary, subject to this Deposit Agreement, shall properly
issue at the Transfer Office, to orupon the order of any person named in such
notice, an ADR or ADRs registered as requested and evidencing the aggregate
ADSs to which suchperson 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 (
Distributionson Deposited Securities
) would not be permissible by applicable law, rule or regulation, or is not
otherwise practicable with respectto any or all Holders, the Depositary may in
its discretion make such distribution as it so deems practicable, including
the distributionof some or all of any Cash (as defined in paragraph (10) of
the form of ADR), foreign currency, securities or other property (or
appropriatedocuments evidencing the right to receive some or all of any such
Cash, foreign currency, securities or other property) and/or the Depositarymay
retain and hold some or all of such Cash, foreign currency, securities or
other property as Deposited Securities with respect to theapplicable Holders'
ADRs (without liability for interest thereon or the investment thereof).
To the extent the Depositary determines in itsdiscretion that it would not be
permitted by applicable law, rule or regulation, or it would not otherwise be
practicable, to convertforeign currency into U.S. dollars and/or distribute
U.S. dollars to some or all of the Holders entitled thereto, the Depositary
may inits discretion distribute some or all of the foreign currency received
by the Depositary as it deems permissible and practicable to, orretain and
hold such foreign currency uninvested and without liability for interest
thereon for the respective accounts of, the Holdersentitled to receive the
same.
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To the extent the Depositary retains and holdsany Cash, foreign currency,
securities or other property as permitted under this Section 5 or paragraph
(10) (
Distributions on DepositedSecurities
) of the form of ADR, any and all fees, charges and expenses related to, or
arising from, the holding thereof (including,but not limited to those provided
in paragraph (7) of the form of ADR (
Charges of Depositary
)) shall be paid from such Cash, foreigncurrency, securities or other
property, or the net proceeds from the sale thereof, thereby reducing the
amount so held hereunder.
6.
Withdrawal, Delivery and Transfer of DepositedSecurities.
In connection with any surrender of ADRs for withdrawal of the Deposited
Securities represented by the ADSs evidencedthereby, in addition to the
requirements of paragraph (7) of the form of ADR, the Depositary may require
proper endorsement in blank ofany certificated ADRs evidencing such ADSs
and/or duly executed instruments of transfer of such ADSs in blank, together
with the Holder'swritten order directing the Depositary to cause the Deposited
Securities represented by such ADSs to be withdrawn and delivered to, orupon
the written order of, any person designated in such order (a "
Withdrawal Order
").
At the request, risk and expense of the Holderhereof, the Depositary may
deliver such Deposited Securities (including any certificates therefor) at a
place other than its office. Directionsfrom the Depositary to the Custodian to
deliver Deposited Securities shall be given by letter, first class airmail
postage prepaid, orby SWIFT, facsimile transmission or any other method of
communication as may be agreed by the Custodian and the Depositary. Delivery
ofDeposited Securities may be made by the delivery of certificates (which, if
required by law shall be properly endorsed or accompaniedby properly executed
instruments of transfer or, if such certificates may be registered, registered
in the name of such Holder or as orderedby 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 accreditedintermediary, such as a bank, acting as a registrar for the
Deposited Securities.
The Company agrees to cooperate with the Depositaryand to take all actions,
and to instruct and cause any registrar and/or transfer agent of the Deposited
Securities to take all such actions,as may be requested by the Depositary, or
are otherwise necessary or required, to effectuate the withdrawal, delivery
and/or transferof the Deposited Securities, including, without limitation,
providing a deed of undertaking as set forth in or substantially in the formof
Exhibit B. The obligations of the Company set forth in this Section 6 shall
survive the termination of Deposit Agreement until allADSs issued by the
Depositary have been cancelled.
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7.
Substitution of ADRs
. The Depositaryshall execute and deliver a new Direct Registration ADR in
exchange and substitution for any mutilated certificated ADR upon
cancellationthereof or in lieu of and in substitution for such destroyed, lost
or stolen certificated ADR, unless the Depositary has notice that suchADR has
been acquired by a bona fide purchaser, upon the Holder thereof filing with
the Depositary a request for such execution and deliveryand 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 certificatedform so cancelled
in accordance with its customary practices.
9.
The Custodian
.
(a)
Rights of the Depositary
. Any Custodian in acting hereunder shall be subject to the directions of the
Depositary and shallbe responsible solely to it. The Depositary reserves the
right to add, replace or remove a Custodian. The Depositary will give
promptnotice of any such action, which will be advance notice if practicable.
The Depositary may discharge any Custodian at any time upon noticeto the
Custodian being discharged.
(b)
Rights of the Custodian.
Any Custodian may resign from its duties hereunder in the manner permitted by
any custodial agreementthen in effect between the Depositary and the
Custodian. Any Custodian ceasing to act hereunder as Custodian shall deliver,
upon the instructionof the Depositary, all Deposited Securities held by it to
a Custodian continuing to act.
(c)
Notwithstanding anything to the contrary contained in this Deposit Agreement
(including the ADRs) and, subject to the further limitationsset forth in
clause (q) of paragraph (14) of the form of ADR (
Exoneration
), the Depositary shall not be responsible for, and shallincur no liability in
connection with or arising from, any act or omission to act on the part of the
Custodian except to the extent thatany Holder has incurred liability directly
as a result of the Custodian having (i) committed fraud or willful misconduct
in the provisionof custodial services to the Depositary or (ii) failed to use
reasonable care in the provision of custodial services to the Depositaryas
determined in accordance with the standards prevailing in the jurisdiction in
which the Custodian is located.
10.
Lists of Holders
. The Company shallhave the right to inspect transfer records of the
Depositary and its agents and the ADR Register, take copies thereof and
require theDepositary and its agents to supply copies of such portions of such
records as the Company may request. The Depositary or its agents shallfurnish
to the Company promptly upon the written request of the Company, a list of the
names, addresses and holdings of ADSs by all Holdersas of a date within seven
(7) days of the Depositary's receipt of such request.
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11.
Depositary's Agents
. The Depositarymay perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall
notifythe Company of such appointment and shall remain responsible for the
performance of such obligations as if no agent were appointed, subjectto
paragraph (14) of the form of ADR (
Exoneration
).
12.
Resignation and Removal of the Depositary;Appointment of Successor Depositary
.
(a)
Resignation of the Depositary
. The Depositary may at any time resign as Depositary by providing written
notice of its electionto do so delivered to the Company. Subject to
subparagraph (c) below, the Depositary's resignation shall take effect upon
the Company'sappointment of a successor depositary and such successor
depositary's acceptance of its appointment as provided in Section 12(d) below.
(b)
Removal of the Depositary
. The Depositary may at any time be removed by the Company by providing no
less than sixty (60)days' prior written notice of such removal to the
Depositary. Subject to subparagraph (c) below, such removal shall take effect
on thelater of (i) the sixtieth (60th) day after the Removal Notice Date and
(ii) the Company's appointment of a successor depositary and suchsuccessor
depositary's acceptance of its appointment as provided in Section 12(d) below.
(c)
If either the Depositary provides notice of its resignation (pursuant to
Section 12(a)) or the Company provides notice of the Depositary'sremoval
(pursuant to Section 12(b)), and a successor depositary is not appointed by
the sixtieth (60th) day after the Resignation NoticeDate or the Removal Notice
Date, respectively, the Depositary may terminate this Deposit Agreement and
the ADR in the manner set out inparagraph (17) of the form of ADR (
Termination
) and the provisions of said paragraph (17) shall thereafter govern the
Depositary'sobligations hereunder.
(d)
Appointment of Successor Depositary
. If the Depositary provides notice of its resignation pursuant to Section
12(a) aboveor the Company provides notice of the Depositary's removal pursuant
to Section 12(b) above, the Company shall use its best efforts toappoint 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 appointmenthereunder, 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 requestof 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) dulyassign,
transfer and deliver all right, title and interest to the Deposited Securities
to such successor, and (iii) deliver to such successora 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 substantiallyall its American depositary receipt business,
shall be the successor of the Depositary without the execution or filing of
any documentor any further act.
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13.
Compliance with Securities Exchange Actof 1934 Reporting and Other
Requirements; Reports.
(a)
SecuritiesExchange Act of 1934.
The Company represents and warrants continuously that (i) the statements in
paragraph (8) of the form of ADR(
Available Information
) attached hereto as Exhibit A or, if applicable, most recently filed with the
Commission are true and correctand (ii) it is in compliance with the
registration, reporting and other requirements of the Securities Exchange Act
of 1934. Theserepresentations and warranties of the Company shall survive the
date of the Deposit Agreement.
The Company hereby covenants and agrees to publishand file all reports, and to
take all other actions, necessary and/or required to remain in compliance with
the requirements of the SecuritiesExchange Act of 1934, as and when required.
The Company agrees to notify the Depositary promptly in the event of any
change in the truthor accuracy of, or noncompliance with, any of the
representations, warranties, covenants and agreements contained in this
Section 13(a)and paragraph (8) of the form of ADR (
Available Information
).
The Company acknowledges and agrees that the Depositary(i) is relying, and may
so rely, solely on the Company's representations, warranties, covenants and
agreements in this Section 13(a) andparagraph (8) of the form of ADR (
Available Information
), (ii) does not assume any duty or responsibility to determine if the
Companyis in compliance with the registration, reporting and other
requirements of the Securities Exchange Act of 1934, and (iii) may, and
isexpressly authorized by the Company to, represent, warrant and certify that,
based on such ongoing representations, warranties, covenantsand agreements of
the Company, the Company is in compliance with the registration, reporting and
other requirements of the SecuritiesExchange Act of 1934.
(b)
Reports.
On or before the first date on which the Company makes any communication
available to holders of Deposited Securities or any securitiesregulatory
authority or stock exchange, by publication or otherwise, the Company shall
transmit to the Depositary a copy thereof in Englishor with an English
translation or summary. The Company has delivered to the Depositary, the
Custodian and any Transfer Office, a copyof all provisions of or governing the
Shares and any other Deposited Securities issued by the Company or any
affiliate of the Companyand, promptly upon any change thereto, the Company
shall deliver to the Depositary, the Custodian and any Transfer Office, a copy
(inEnglish or with an English translation) of such provisions as so changed
.
The Depositary and its agents may rely upon the Company'sdelivery of all such
communications, information and provisions for all purposes of this Deposit
Agreement and the Depositary shall haveno liability for the accuracy or
completeness of any thereof.
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14.
Additional Shares
. The Company agreeswith the Depositary that neither the Company nor any
company controlling, controlled by or under common control with the Company
shall(a) issue (i) additional Shares, (ii) rights to subscribe for Shares,
(iii) securities convertible into or exchangeable for Shares or(iv) rights to
subscribe for any such securities or (b) deposit any Shares under this Deposit
Agreement, except, in each case, under circumstancescomplying in all respects
with the Securities Act of 1933. At the reasonable request of the Depositary
where it deems necessary, the Companywill furnish the Depositary with legal
opinions, in forms and from counsels reasonably acceptable to the Depositary,
dealing with suchissues requested by the Depositary. The Depositary will not
knowingly accept for deposit hereunder any Shares required to be registeredunder
the Securities Act of 1933 unless a registration statement is in effect and
will use reasonable efforts to comply with written instructionsof the Company
not to accept for deposit hereunder any Shares identified in such instructions
at such times and under such circumstancesas may reasonably be specified in
such instructions in order to facilitate the Company's compliance with the
securities laws, rules andregulations of the United States, including, but not
limited to, the Securities Act of 1933 and the rules and regulations
promulgatedthereunder.
15.
Indemnification.
(a)
Indemnificationby the Company
. The Company shall indemnify, defend and save harmless each of the
Depositary, the Custodian and their respective directors,officers, employees,
agents and affiliates against any loss, liability or expense (including
reasonable fees and expenses of counsel)that may arise out of acts performed
or omitted, in connection with the provisions of this Deposit Agreement and of
the ADRs, as the samemay be amended, modified or supplemented from time to
time in accordance herewith (i) by either the Depositary or a Custodian or
theirrespective directors, officers, employees, agents and affiliates, except
for any liability or expense directly arising out of the negligenceor willful
misconduct of the Depositary or its directors, officers or affiliates acting
in their capacities as such hereunder, or (ii)by the Company or any of its
directors, officers, employees, agents and affiliates, including, without
limitation, if any of the representationsand warranties of the Company
contained in Section 13 hereof and/or paragraph 8 of the form of ADR
(Available Information)
wereor are incorrect in any respect and/or if the Company violates or breaches
any of its covenants or agreements contained therein with respectto the
Securities Exchange Act of 1934 or otherwise.
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The indemnities set forth in the preceding paragraphshall also apply to any
liability or expense that may arise out of any misstatement or alleged
misstatement or omission or alleged omissionin any registration statement,
proxy statement, prospectus (or placement memorandum), preliminary prospectus
(or preliminary placementmemorandum) or other document or report relating to,
or arising from the offer, issuance, withdrawal, sale, resale or transfer of
ADSsor the deposit, withdrawal, offer, sale, resale or transfer of Shares or
any other report filed or furnished by the Company with the Commission,except
to the extent any such liability or expense arises out of (i) information
relating to the Depositary or its agents (other thanthe Company), as
applicable, furnished in writing by the Depositary expressly for use in any of
the foregoing documents and not changedor altered by the Company or any other
person (other than the Depositary) or (ii) if such information is provided,
the failure by theDepositary to state a material fact therein necessary to
make the information provided, in light of the circumstances under which
madeor provided, not misleading.
(b)
Indemnificationby the Depositary.
Subject to the limitations provided for in Sections 9 and 15(c) below, the
Depositary shall indemnify, defend andsave harmless the Company against any
direct loss, liability or expense (including reasonable fees and expenses of
counsel) incurred bythe Company in respect of this Deposit Agreement to the
extent such loss, liability or expense is due to the negligence or willful
misconductof the Depositary.
(c)
Specialor Consequential Damages and Lost Profits
. Notwithstanding any other provision of this Deposit Agreement or the ADRs to
the contrary,neither the Depositary nor any of its agents shall be liable for
any indirect, special, punitive or consequential damages (including,without
limitation, legal fees and expenses) or lost profits, in each case of any form
incurred by any person or entity (including, withoutlimitation, Holders and
Beneficial Owners of ADRs and ADSs), whether or not foreseeable and regardless
of the type of action in whichsuch a claim may be brought.
(d)
Notification
. Any person seeking indemnification hereunder (an "
indemnified person
") shall notify the personfrom whom it is seeking indemnification (the "
indemnifying person
") of the commencement of any indemnifiable action orclaim as promptly as
reasonably practical after such indemnified person becomes aware of such
commencement (provided that the failureto make such notification shall not
affect such indemnified person's rights to indemnification under this Section
15 except and only tothe limited extent the indemnifying person is materially
prejudiced by such failure through the forfeiture of substantive rights or
defensesas a result of such failure; and provided, further, that the failure
to notify the indemnifying party shall not relieve the indemnifyingparty from
any liability that it may have to an indemnified party otherwise than under
this Section 15). No indemnifying person shallbe liable for any settlement of
any proceeding effected without its written consent (which consent shall not
be unreasonably withheld,conditioned or delayed), but if settled with such
indemnifying person's written consent or if there is a final and non-appealable
judgmentby a court of competent jurisdiction in any such proceeding, the
indemnifying person agrees to indemnify and hold harmless each indemnifiedperson
from and against any and all losses, claims, damages, liabilities and
reasonable legal and other out-of-pocket expensesby reason of such settlement
or judgment. No indemnifying person shall, without the prior written consent
of any indemnified person, effectany settlement of any pending or threatened
proceedings in respect of which indemnity could have been sought hereunder by
such indemnifiedperson unless such settlement (i) includes an unconditional
release of such indemnified person in form and substance reasonably
satisfactoryto such indemnified person from all liability or claims that are
the subject matter of such proceedings and (ii) does not includeany statement
as to or any admission of fault, culpability, wrong doing or a failure to act
by or on behalf of any indemnified person.
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(e)
Survival.
The obligations set forth in this Section 15 shall survive the termination of
this Deposit Agreement and the succession or substitutionof any indemnified
person.
16.
Notices
.
(a)
Noticeto Holders
. Notice to any Holder shall be deemed given when first mailed, first class
postage prepaid, to the address of such Holderon the ADR Register or received
by such Holder. Failure to notify a Holder or any defect in the notification
to a Holder shall not affectthe sufficiency of notification to other Holders
or to the Beneficial Owners of the ADSs evidenced by the ADRs held by such
other Holders.The Depositary's only notification obligations under this
Deposit Agreement and the ADRs shall be to Holders. Notice to a Holder shallbe
deemed, for all purposes of this Deposit Agreement and the ADRs, to constitute
notice to any and all Beneficial Owners of the ADSsevidenced by such Holder's
ADRs.
(b)
Noticeto the Depositary or the Company
. Notice to the Depositary or the Company shall be deemed given when first
received by it at the addressor by electronic transmission to the e-mail
address set forth in (i) or (ii), respectively, or at such other address or
email addressprovided by the Depositary or the Company to the other,
respectively, in the same manner as notices are required to be provided in
thisSection 16:
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(i) JPMorgan Chase Bank, N.A.
383 Madison Avenue, Floor 11
New York, New York 10179
Attention: Depositary Receipts Group
E-mail Address:
DR_Global_CSM@jpmorgan.com
(ii) Jiayin Group Inc.
18th Floor, Building No. 1, Youyou CenturyPlaza
428 South Yanggao Road
Pudong New Area, Shanghai 200122
People's Republic of China
Attention: Charlie Fan
E-mail Address:
fanchunlin@jiayinfintech.cn
Delivery of a notice by means of electronic messagingshall be deemed to be
effective at the time of the initiation of the transmission by the sender (as
shown on the sender's records) tothe email address set forth above,
notwithstanding that the intended recipient retrieves the message at a later
date, fails to retrievesuch message, or fails to receive such notice on
account of its failure to maintain the designated e-mail address, its failure
to designatea substitute e-mail address or for any other reason.
17.
Counterparts.
This Deposit Agreementmay be executed in any number of counterparts, each of
which shall be deemed an original and all of which shall constitute one
instrument.Delivery of an executed signature page of this Deposit Agreement by
facsimile or other electronic transmission (including ".pdf",".tif" or similar
format) shall be effective as delivery of a manually executed counterpart
hereof.
18.
No Third-Party Beneficiaries; Holders andBeneficial Owners as Parties; Binding
Effect
. This Deposit Agreement is for the exclusive benefit of the Company, the
Depositary andthe Holders and their respective successors hereunder, and,
except to the extent specifically set forth in Section 15 of this
DepositAgreement, shall not give any legal or equitable right, remedy or claim
whatsoever to any other person. The Holders and Beneficial Ownersfrom time to
time shall be parties to this Deposit Agreement and shall be bound by all of
the provisions hereof. A Beneficial Owner shallonly be able to exercise any
right or receive any benefit hereunder solely through the Holder of the ADR(s)
evidencing the ADSs ownedby such Beneficial Owner.
19.
Severability
. If any provision containedin this Deposit Agreement or in the ADRs is, or
becomes, invalid, illegal or unenforceable in any respect, the remaining
provisions containedherein and therein shall in no way be affected thereby.
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20.
Governing Law; Consent to Jurisdiction
.
(a)
GoverningLaw.
The Deposit Agreement, the ADSs and the ADRs shall be governed by and
construed in accordance with the laws of the State of NewYork without giving
effect to the application of the conflict of law principles thereof.
(b)
Claimsbetween the Company and the Depositary.
The Company irrevocably agrees that any legal suit, action or proceeding
against or involvingthe Company brought by the Depositary arising out of or
based upon this Deposit Agreement, the ADSs, the ADRs or the transactions
contemplatedherein, therein, hereby or thereby, may be instituted in any state
or federal court in New York, New York, and irrevocably waives anyobjection
that it may now or hereafter have to the laying of venue of any such
proceeding, and irrevocably submits to the non-exclusivejurisdiction of such
courts in any such suit, action or proceeding. The Company also irrevocably
agrees that any legal suit, action orproceeding against or involving the
Depositary brought by the Company, arising out of or based upon this Deposit
Agreement, the ADSs,the ADRs or the transactions contemplated herein, therein,
hereby or thereby, may be instituted only in a state or federal court in
NewYork, New York. Notwithstanding the foregoing, subject to the federal
securities law carve-out set forth in Section 20(d) below, the Depositarymay
institute and/or refer any such suit, action or proceeding to arbitration in
accordance with the provisions of the Deposit Agreement,and thereupon any
arbitral decision from such suit, action or proceeding shall be deemed final
and binding.
(c)
ClaimsInvolving Holders and Beneficial Owners.
By holding or owning an ADR or ADS or an interest therein, Holders and
Beneficial Ownerseach irrevocably agree that any legal suit, action or
proceeding against or involving Holders or Beneficial Owners brought by the
Companyor the Depositary, arising out of or based upon this Deposit Agreement,
the ADSs, the ADRs or the transactions contemplated herein, therein,hereby or
thereby, may be instituted in a state or federal court in New York, New York,
and by holding or owning an ADR or ADS or an interesttherein each irrevocably
waives any objection that it may now or hereafter have to the laying of venue
of any such proceeding, and irrevocablysubmits to the non-exclusive
jurisdiction of such courts in any such suit, action or proceeding.
By holding or owning an ADR or ADS or an interesttherein, Holders and
Beneficial Owners each also irrevocably agree that any legal suit, action or
proceeding against or involving theDepositary and/or the Company brought by
Holders or Beneficial Owners, arising out of or based upon this Deposit
Agreement, the ADSs,the ADRs or the transactions contemplated herein, therein,
hereby or thereby, including, without limitation, claims under the
SecuritiesAct of 1933, may be instituted only in the United States District
Court for the Southern District of New York (or in the state courtsof New York
County in New York if either (i) the United States District Court for the
Southern District of New York lacks subject matterjurisdiction over a
particular dispute or (ii) the designation of the United States District Court
for the Southern District of New Yorkas the exclusive forum for any particular
dispute is, or becomes, invalid, illegal or unenforceable). Notwithstanding
the foregoing, subjectto the federal securities law carve-out set forth in
Section 20(d) below, the Depositary may institute and/or refer any such suit,
actionor proceeding to arbitration in accordance with the provisions of this
Deposit Agreement, and thereupon, any arbitral decision from suchsuit, action
or proceeding shall be deemed final and binding.
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(d)
OptionalArbitration
. Notwithstanding anything in this Deposit Agreement to the contrary, each of
the parties hereto (
i.e.
, the Company,the Depositary and all Holders and Beneficial Owners) agrees
that: (i) the Depositary may, in its sole discretion, elect to instituteany
dispute, suit, action, controversy, claim or proceeding directly or indirectly
based on, arising out of or relating to this DepositAgreement, the ADSs, the
ADRs or the transactions contemplated herein, therein, hereby or thereby,
including without limitation any questionregarding its or their existence,
validity, interpretation, performance or termination (each, a "
Dispute
"; collectively,"
Disputes
") against any other party or parties hereto (including, without limitation,
Disputes brought against Holdersand Beneficial Owners), by having the Dispute
referred to and finally resolved by an arbitration conducted under the terms
set out below,and (ii) the Depositary may in its sole discretion require, by
written notice to the relevant party or parties, that any Dispute broughtby
any party or parties hereto (including, without limitation, Disputes brought
by Holders and Beneficial Owners) against the Depositarybe referred to and
finally settled by an arbitration conducted under the terms set out below;
provided however, notwithstanding the Depositary'swritten notice under this
clause (ii), to the extent there are specific federal securities law violation
aspects to any claims againstthe Company and/or the Depositary brought by any
Holder or Beneficial Owner, the federal securities law violation aspects of
such claimsbrought by a Holder or Beneficial Owner against the Company and/or
the Depositary may, at the option of such Holder or Beneficial Owner,remain in
federal or state court in New York, New York and all other aspects, claims,
Disputes, legal suits, actions and/or proceedingsbrought by such Holder or
Beneficial Owner against the Company and/or the Depositary, including those
brought along with, or in additionto, federal securities law violation claims,
would be referred to arbitration in accordance herewith.
Any such arbitration shall, at the Depositary'selection, be conducted either
in New York, New York in accordance with the Commercial Arbitration Rules of
the American Arbitration Associationor in Hong Kong following the arbitration
rules of the United Nations Commission on International Trade Law (UNCITRAL)
with the Hong KongInternational Arbitration Centre serving as the appointing
authority, in each case as amended by this Section 20(d), and the languageof
any such arbitration shall be English.
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A notice of arbitration may be mailed to the Companyat its address last
specified for notices under this Deposit Agreement, and, if applicable, to any
Holders at their addresses on the ADRRegister, which notice to any such
Holder, for the avoidance of doubt, shall be deemed, for all purposes of the
Deposit Agreement andthe ADRs, including, without limitation, the arbitration
provisions contained in this clause (d), to constitute notice to any and
allBeneficial Owners of the ADSs evidenced by such Holder's ADRs. In any case
where the Depositary exercises its right to arbitrate hereunder,arbitration of
the Dispute shall be mandatory and any pending litigation arising out of or
related to such Dispute shall be stayed. Judgmentupon the award rendered by
the arbitrators may be entered in any court having jurisdiction thereof.
Notwithstanding anything contained herein to thecontrary, and for the
avoidance of doubt, the Company and all Holders and Beneficial Owners from
time to time of ADRs issued hereunder(and any persons owning or holding
interests in ADSs) agree that any federal or state court in New York, New
York, shall have jurisdictionto hear and determine proceedings related to the
enforcement of this arbitration provision and any arbitration award by the
arbitratorscontemplated and, for such purposes, irrevocably submits to the
non-exclusive jurisdiction of such courts.
Each of the parties hereto (
i.e.
, the Company,the Depositary and all Holders and Beneficial Owners) agrees not
to challenge the terms and enforceability of this arbitration clause,including,
but not limited to, any challenge based on lack of mutuality, and each such
party hereby irrevocably waives any such challenge.
The number of arbitrators shall be three, eachof whom shall (x) be
disinterested in the Dispute, (y) have no connection with any party thereto,
and (z) be an attorneyexperienced in international securities transactions.
The Company and the Depositary shall each appoint one arbitrator, and the two
arbitratorsshall select a third arbitrator who shall serve as chairperson of
the tribunal. If a Dispute shall involve more than two parties, theparties
shall attempt to align themselves in two sides (
i.e.
, claimant and respondent), each of which shall appoint one arbitratoras if
there were only two parties to such Dispute. If either or both parties fail to
select an arbitrator, or if such alignment (in theevent there are more than
two parties) shall not have occurred, within thirty (30) days after the
Depositary serves the arbitration demandor the two arbitrators fail to select
a third arbitrator within thirty (30) days of the selection of the second
arbitrator, the AmericanArbitration Association in the case of an arbitration
in New York, or the Hong Kong International Arbitration Centre in the case of
anarbitration in Hong Kong, shall appoint the remaining arbitrator or
arbitrators in accordance with its rules. The parties and the AmericanArbitratio
n Association and/or the Hong Kong International Arbitration Centre, as the
case may be, may appoint the arbitrators from amongthe nationals of any
country, whether or not the appointing party or any other party to the
arbitration is a national of that country.
The arbitrators shall have no authority to award(A) damages against any party
not measured by the prevailing party's actual damages or (B) any consequential,
special or punitivedamages against any party and may not, in any event, make
any ruling, finding or award that does not conform to the terms and
conditionsof this Deposit Agreement.
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In all cases, the fees of the arbitrators and othercosts incurred by the
parties in connection with such arbitration shall be paid by the party (or
parties) that is (or are) unsuccessfulin such arbitration.
No party hereto shall be entitled to join or consolidatedisputes by or against
others in any arbitration, or to include in any arbitration any dispute as a
representative or member of a class,or act in any arbitration in the interest
of the general public or in a private attorney general capacity.
(e) Notwithstandingthe foregoing or anything in this Deposit Agreement
to the contrary, any suit, action or proceeding against the Company based on
thisDeposit Agreement, the ADSs, the ADRs or the transactions contemplated
herein, therein, hereby or thereby, may be instituted by the Depositaryin any
competent court in the Cayman Islands, the United States and/or any other
court of competent jurisdiction, or, subject to the federalsecurities law
carve-out set forth in Section 20(d) above, by the Depositary through the
commencement of an arbitration pursuant to Section20(d) of this Deposit
Agreement.
21.
Agent for Service.
(a)
Appointment
.The Company has appointed Cogency Global Inc., 122 East 42nd Street, 18th
Floor, New York, New York 10168, as its authorized agent (the"
Authorized Agent
") upon which process may be served in any such suit, action or proceeding
arising out of or based onthis Deposit Agreement, the ADSs, the ADRs or the
transactions contemplated herein, therein, hereby or thereby which may be
institutedin any state or federal court in New York, New York by the
Depositary or any Holder, and waives any other requirements of or objectionsto
personal jurisdiction with respect thereto. Subject to the Company's rights to
replace the Authorized Agent with another entity inthe manner required were
the Authorized Agent to have resigned, such appointment shall be irrevocable.
(b)
Agentfor Service of Process
. The Company represents and warrants that the Authorized Agent has agreed to
act as said agent for serviceof process, and the Company agrees to take any
and all action, including the filing of any and all documents and instruments,
that maybe necessary to continue such appointment in full force and effect as
aforesaid. The Company further hereby irrevocably consents and agreesto the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Company, byservice by mail of a copy
thereof upon the Authorized Agent (whether or not the appointment of such
Authorized Agent shall for any reasonprove to be ineffective or such
Authorized Agent shall fail to accept or acknowledge such service), with a
copy mailed to the Companyby registered or certified air mail, postage
prepaid, to its address provided in Section 16(b) hereof. The Company agrees
that the failureof the Authorized Agent to give any notice of such service to
it shall not impair or affect in any way the validity of such service orany
judgment or award rendered in any suit, action or proceeding based thereon.
If, for any reason, the Authorized Agent named above orits successor shall no
longer serve as agent of the Company to receive service of process, summons,
notices, papers and documents in NewYork, the Company shall promptly appoint a
successor that is a legal entity with offices in New York, New York, so as to
serve and willpromptly advise the Depositary thereof.
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(c)
Waiverof Personal Service of Process
. 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
orregistered mail, return receipt requested, directed to the Company at its
address last specified for notices hereunder, and service somade shall be
deemed completed five (5) days after the same shall have been so mailed.
22.
Waiver of Immunities.
To the extentthat the Company or any of its properties, assets or revenues may
have or may hereafter be entitled to, or have attributed to it, anyright of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, including any arbitration, fromthe 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 legalprocess or proceeding for the giving of any relief or for the
enforcement of any judgment or arbitration award, in any jurisdiction inwhich
proceedings may at any time be commenced, with respect to its obligations,
liabilities or other matters under or arising out ofor in connection with the
Shares or Deposited Securities, the ADSs, the ADRs or this Deposit Agreement,
the Company, to the fullest extentpermitted by law, hereby irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity
and consents to suchrelief and enforcement.
23.
Waiver of Jury Trial
. EACH PARTY TOTHIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH
HOLDER AND BENEFICIAL OWNER OF, AND/OR HOLDER OF INTERESTS IN, ADSS ORADRS)
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, BASED ON OR RELATING IN ANY WAYTO 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), INCLUDING, WITHOUT
LIMITATION, ANYSUIT, ACTION, CLAIM OR PROCEEDING UNDER THE UNITED STATES
FEDERAL SECURITIES LAWS. No provision of this Deposit Agreement or any ADR
isintended to constitute a waiver or limitation of any rights that a Holder or
any Beneficial Owner may have under the Securities Act of1933 or the
Securities Exchange Act of 1934, to the extent applicable.
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24.
Amendment and Restatement of Prior DepositAgreement
. The Deposit Agreement amends and restates the Prior Deposit Agreement in its
entirety to consist exclusively of the DepositAgreement, and each Prior
Receipt is hereby deemed amended and restated to substantially conform to the
form of ADR set forth in ExhibitA annexed hereto, except that, to the extent
any portion of such amendment and restatement imposes or increases any fees or
charges differentfrom those set forth herein (other than charges in connection
with foreign exchange control regulations, and taxes and other governmentalcharg
es, delivery and other such expenses), or otherwise materially prejudices any
substantial existing right of Holders of Prior Receiptsor Beneficial Owners of
ADSs evidenced by such Prior Receipts, such portion shall not become effective
as to such Holders or BeneficialOwners with respect to such Prior Receipt
until thirty (30) days after such Holders shall have received notice thereof,
such notice tobe conclusively deemed given upon the mailing to such Holders of
notice of such amendment and restatement which notice contains a provisionwhereb
y such Holders can receive a copy of the form of ADR.
[
Signature page follows
]
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IN WITNESS WHEREOF, JIAYIN GROUP INC. and JPMORGANCHASE BANK, N.A. have duly
executed this Deposit Agreement as of the day and year first above set forth
and all Holders and BeneficialOwners shall become parties hereto upon
acceptance by them of ADSs issued in accordance with the terms hereof, or upon
acquisition ofany beneficial interest therein.
JIAYIN GROUP INC.
By: _____________________________
Name:
Title:
JPMORGAN CHASE BANK, N.A.
By: _____________________________
Name:
Title:
J.P.Morgan
EXHIBIT A
ANNEXED TO AND INCORPORATED IN
DEPOSIT AGREEMENT
[FORMOF FACE OF ADR]
No. of ADSs:
Number
Each ADS represents
Four (4) Shares
CUSIP:
AMERICAN DEPOSITARY RECEIPT
evidencing
AMERICAN DEPOSITARY SHARES
representing
CLASS A ORDINARY SHARES
of
JIAYIN GROUP INC.
(Incorporated under the laws of the Cayman Islands)
JPMORGAN CHASE BANK, N.A., a national bankingassociation organized under the
laws of the United States of America, as depositary hereunder (in such
capacity, the"
Depositary
"), hereby certifies that _____________________ is the registered owner (a "
Holder
") of___________________ American depositary shares ("
ADSs
"), each (subject to paragraph (13) (
Changes AffectingDeposited Securities
)) representing four (4) class A ordinary shares (including the rights to
receive Shares described inparagraph (1) (
Issuance of ADSs
), "
Shares
" and, together with any other securities, cash or property fromtime to time
held by the Depositary in respect or in lieu of deposited Shares, the "
Deposited Securities
"), ofJiayin Group Inc., a company incorporated under the laws of the Cayman
Islands (the "
Company
"), deposited under theAmended and Restated Deposit Agreement, dated as of
__________ __, 2024 (as amended from time to time, the "
DepositAgreement
"), among the Company, the Depositary and all Holders and Beneficial Owners
from time to time of AmericanDepositary Receipts issued thereunder ("
ADRs
"), each of whom by accepting an ADR becomes a party thereto. TheDeposit
Agreement and this ADR (which includes the provisions set forth on the reverse
hereof) shall be governed by and construed inaccordance with the internal laws
of the State of New York without giving effect to the application of the
conflict of lawprinciples thereof. All capitalized terms used herein, and not
defined herein, shall have the meanings ascribed to such terms in theDeposit
Agreement.
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(1)
Issuance of ADSs
.
(a)
Issuance
. This ADR is one of the ADRsissued under the Deposit Agreement. Subject to
the other provisions hereof, the Depositary may so issue ADRs for delivery at
the TransferOffice only against deposit of: (i) Shares in a form satisfactory
to the Custodian; or (ii) rights to receive Shares from the Companyor any
registrar, transfer agent, clearing agent or other entity recording Share
ownership or transactions. At the request, risk and expenseof the person
depositing Shares or rights to receive Shares, the Depositary may accept such
Shares and/or deposits for forwarding to theCustodian and may deliver ADRs at
a place other than its office.
(b)
Lending
. In its capacity as Depositary,the Depositary shall not lend Shares or ADSs.
(c)
Representations and Warranties of Depositors
.Every person depositing Shares under the Deposit Agreement represents and
warrants that:
(i) such Shares and the certificates therefor are duly authorized, validly issued
and outstanding, fully paid, nonassessable and legallyobtained by such person,
(ii) all pre-emptive and comparable rights, if any, with respect to such Shares have been validly waived or exercised,
(iii) the person making such deposit is duly authorized so to do,
(iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claimand
(v) such Shares (A) are not "restricted
securities" as such term
is defined in Rule 144 under
the Securities Act of 1933 ("
RestrictedSecurities
") unless at the time of deposit the requirements of paragraphs (c), (e), (f) and (h) of Rule
144 shall not apply andsuch Shares may be freely transferred and may otherwise be offered
and sold freely in the United States or (B) have been registered underthe Securities Act
of 1933. To the extent the person depositing Shares is an "affiliate" of the Company as
such term is definedin Rule 144, the person also represents and warrants that upon the sale
of the ADSs, all of the provisions of Rule 144 that enable theShares 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 respectof such Shares will not be on the sale thereof, Restricted Securities.
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Such representations and warranties shall survivethe deposit and withdrawal of
Shares and the issuance and cancellation of ADSs in respect thereof and the
transfer of such ADSs. If anyof the representations or warranties are
incorrect in any way, the Company and the Depositary may, at the cost of the
breaching Holder(including, without limitation, any Holder acting on behalf of
a third party) and/or Beneficial Owner, take any and all actions necessaryto
correct the consequences of such misrepresentation.
(d) The Depositary may refuse to accept for suchdeposit any Shares identified
by the Company in order to facilitate compliance with the requirements of the
securities laws, rules andregulations of the United States, including, without
limitation, the Securities Act of 1933 and the rules and regulations made
thereunder.
(2)
Withdrawal of Deposited Securities
.Subject to paragraphs (4) (
Certain Limitations to Registration, Transfer etc.
), (5) (
Liability of Holder or Beneficial Ownerfor Taxes, Duties and Other Charges
) and (7) (
Charges of Depositary
) and to the provisions of or governing the Deposited Securities(including,
without limitation, the Company's governing documents and all applicable laws,
rules and regulations), upon surrender of (a)a certificated ADR in a form
satisfactory to the Depositary at the Transfer Office or (b) proper
instructions and documentation in thecase of a Direct Registration ADR, the
Holder hereof is entitled to delivery at the Custodian's office (or from the
Custodian to the extentdematerialized) of the Deposited Securities at the time
represented by the ADSs evidenced by this ADR. At the request, risk and
expenseof the Holder hereof, the Depositary may deliver such Deposited
Securities (including any certificates therefor) at such other place asmay
have been requested by the Holder. Notwithstanding any other provision of the
Deposit Agreement or this ADR, the withdrawal of DepositedSecurities may be
restricted only for the reasons set forth in General Instruction I.A.(1) of
Form F-6 (as such instructions may be amendedfrom time to time) under the
Securities Act of 1933.
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(3)
Transfers, Split-Ups and Combinations ofADRs
. 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 caseof Direct Registration ADRs, shall include the Direct
Registration System, which at all reasonable times will be open for inspection
byHolders and the Company for the purpose of communicating with Holders in the
interest of the business of the Company or a matter relatingto the Deposit
Agreement and (b) facilities for the delivery and receipt of ADRs. The term
ADR Register includes the Direct RegistrationSystem. Title to this ADR (and to
the Deposited Securities represented by the ADSs evidenced hereby), when
properly endorsed (in the caseof ADRs in certificated form) and/or upon
delivery to the Depositary of proper instruments of transfer, is transferable
by delivery withthe 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
absoluteowner hereof for all purposes and neither the Depositary nor the
Company will have any obligation or be subject to any liability underthe
Deposit Agreement or any ADR to any Beneficial Owner, unless such Beneficial
Owner is the Holder hereof. Subject to paragraphs (4)(
Certain Limitations to Registration, Transfer, etc.
) and (5) (
Liability of Holder or Beneficial Owner for Taxes, Duties andOther Charges
), this ADR is transferable on the ADR Register and may be split into other
ADRs or combined with other ADRs into oneADR, evidencing the aggregate number
of ADSs surrendered for split-up or combination, by the Holder hereof or by
duly authorized attorneyupon surrender of this ADR at the Transfer Office
properly endorsed (in the case of ADRs in certificated form) or upon delivery
to theDepositary of proper instruments of transfer and duly stamped as may be
required by applicable law;
provided
that the Depositarymay close the ADR Register (and/or any portion thereof) at
any time or from time to time when deemed expedient by it. At the request ofa
Holder, the Depositary shall, for the purpose of substituting a certificated
ADR with a Direct Registration ADR, or vice versa, executeand deliver a
certificated ADR or a Direct Registration ADR, as the case may be, for any
authorized number of ADSs requested, evidencingthe 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 to Registration, Transfer,etc
. Prior to the issue, registration, registration of transfer, split-up or
combination of any ADR, the delivery of any distributionin respect thereof,
or, subject to the last sentence of paragraph (2) (
Withdrawal of Deposited Securities
), the withdrawal of anyDeposited Securities, and from time to time in the
case of clause (b)(ii) of this paragraph (4), the Company, the Depositary or
the Custodianmay require:
(a) payment with respect thereto of (i) any stocktransfer or other tax or
other governmental charge, (ii) any stock transfer or registration fees in
effect for the registration of transfersof Shares or other Deposited
Securities upon any applicable register and (iii) any applicable charges as
provided in paragraph (7) (
Chargesof Depositary
) 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, informationas to citizenship, residence,
exchange control approval, beneficial or other ownership of, or interest in,
any securities, compliancewith applicable law, regulations, provisions of or
governing Deposited Securities and terms of the Deposit Agreement and this
ADR, asit may deem necessary or proper; and
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(c) compliance with such regulations as the Depositarymay establish consistent
with the Deposit Agreement or as the Depositary believes are required,
necessary or advisable in order to complywith applicable laws, rules and
regulations.
The issuance of ADRs, the acceptance of depositsof Shares, the registration,
registration of transfer, split-up or combination of ADRs or, subject to the
last sentence of paragraph (2)(
Withdrawal of Deposited Securities
), the withdrawal and delivery of Deposited Securities may be suspended,
generally or in particularinstances, when the ADR Register or any register for
Deposited Securities is closed or when any such action is deemed required,
necessaryor advisable by the Depositary for any reason.
(5)
Liability of Holder or Beneficial Ownerfor Taxes, Duties and Other Charges
.
(a)
Liability for Taxes
. If any tax or othergovernmental charges (including any penalties and/or
interest) shall become payable by or on behalf of the Custodian or the
Depositarywith respect to this ADR, any Deposited Securities represented by
the ADSs evidenced hereby or any distribution thereon, including,
withoutlimitation, any Chinese enterprise income tax owed if the Circular
Guoshuifa [2009] No. 82 issued by the Chinese State Administrationof Taxation
(SAT) or any other circular, edict, order or ruling, as issued and as from
time to time amended, is applied or otherwise,such tax or other governmental
charge shall be paid by the Holder hereof to the Depositary and by holding or
owning, or having held orowned, this ADR or any ADSs evidenced hereby, the
Holder and all Beneficial Owners hereof and thereof, and all prior Holders and
BeneficialOwners hereof and thereof, jointly and severally, agree to
indemnify, defend and save harmless each of the Depositary and its agents
inrespect of such tax or other governmental charge.
Neither the Depositary, nor any of its agents, shallbe liable to Holders or
Beneficial Owners of the ADSs and ADRs for failure of any of them to comply
with applicable tax laws, rules and/orregulations.
Notwithstanding the Depositary's right to seek paymentfrom current and former
Holders and Beneficial Owners, the Holder(s) and Beneficial Owner(s) hereof
(and all prior Holder(s) and BeneficialOwner(s) hereof) acknowledge and agree
that the Depositary has no obligation to seek payment of amounts owing under
this paragraph (5)from any current or former Beneficial Owner.
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) (
Withdrawal of DepositedSecurities
), any withdrawal of such Deposited Securities until such payment is made.
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The Depositary may also deduct from any distributionson 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 ofsuch Deposited Securities, and may apply
such deduction or the proceeds of any such sale in payment of such tax or
other governmentalcharge, the Holder hereof remaining liable for any
deficiency, and shall reduce the number of ADSs evidenced hereby to reflect
any suchsales of Shares. In connection with any distribution to Holders, the
Company will remit to the appropriate governmental authority or agencyall
amounts (if any) required to be withheld and owing to such authority or agency
by the Company; and the Depositary and the Custodianwill remit to the
appropriate governmental authority or agency all amounts (if any) required to
be withheld and owing to such authorityor agency by the Depositary or the
Custodian.
If the Depositary determines that any distributionin property other than cash
(including Shares or rights) on Deposited Securities is subject to any tax
that the Depositary or the Custodianis obligated to withhold, the Depositary
may dispose of all or a portion of such property in such amounts and in such
manner as the Depositarydeems necessary and practicable to pay such taxes, by
public or private sale, and the Depositary shall distribute the net proceeds
ofany such sale or the balance of any such property after deduction of such
taxes to the Holders entitled thereto.
(b)
Indemnification Related to Taxes
. EachHolder and Beneficial Owner agrees to indemnify the Depositary, the
Company, the Custodian and any of their respective officers, directors,employees
, agents and affiliates against, and hold each of them harmless from, any
claims by any governmental authority with respect totaxes, additions to tax,
penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other taxbenefit obtained which obligations shall
survive any transfer or surrender of ADSs or the termination of the Deposit
Agreement.
(6)
Disclosure of Interests
.
(a)
General
. To the extent that the provisionsof or governing any Deposited Securities
may require disclosure of or impose limits on beneficial or other ownership
of, or interest in,Deposited Securities, other Shares and other securities and
may provide for blocking transfer, voting or other rights to enforce
suchdisclosure or limits, Holders and Beneficial Owners agree to comply with
all such disclosure requirements and ownership limitations andto comply with
any reasonable Company instructions in respect thereof.
(b)
Jurisdiction Specific
. Any summary ofthe laws and regulations of the Cayman Islands and of the
terms of the Company's constituent documents has been provided by the
Companysolely for the convenience of Holders, Beneficial Owners and the
Depositary. While such summaries are believed by the Company to be accurateas
of the date of the Deposit Agreement, they are (i) summaries and as such may
not include all aspects of the materials summarized asapplicable to a Holder
or Beneficial Owner, and (ii) provided by the Company as of the date of the
Deposit Agreement. The Holder or BeneficialOwner acknowledges that these laws
and regulations and the Company's constituent documents may change after the
date of the Deposit Agreement.Neither the Depositary nor the Company has any
obligation to update any such summaries.
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(7)
Charges of Depositary
.
(a)
Rights of the Depositary
. The Depositarymay 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) (
Distributionson Deposited Securities
)), issuances pursuant to a stock dividend or stock split declared by the
Company, or issuances pursuant toa merger, exchange of securities or any other
transaction or event affecting the ADSs or the Deposited Securities, and (ii)
eachperson surrendering ADSs for withdrawal of Deposited Securities or whose
ADSs are cancelled or reduced for any other reason, a fee ofup to U.S.$5.00
for each 100 ADSs (or portion thereof) issued, delivered, reduced, cancelled
or surrendered, or upon which a Share Distributionor elective distribution is
made or offered (as the case may be). The Depositary may sell (by public or
private sale) sufficient securitiesand property received in respect of Share
Distributions, Rights and Other Distributions prior to such deposit to pay
such charge.
(b)
Additional Fees, Charges and Expenses by theDepositary
. The following additional fees, charges and expenses shall also be incurred
by the Holders, the Beneficial Owners, by anyparty depositing or withdrawing
Shares or by any party surrendering ADSs and/or to whom ADSs are issued
(including, without limitation,issuances pursuant to a stock dividend or stock
split declared by the Company or an exchange of stock regarding the ADSs or
the DepositedSecurities or a distribution of ADSs pursuant to paragraph (10) (
Distributions on Deposited Securities
)), whichever is applicable:
(i) a fee of up to U.S.$0.05 per ADS held for any Cash distribution made, or for
any elective cash/stock dividend offered, pursuant tothe Deposit Agreement,
(ii) a fee of up to U.S.$0.05 per ADS held for the direct or indirect
distribution of securities (other than ADSs or rights to
purchaseadditional ADSs pursuant to paragraph (10) hereof) or the net
cash proceeds from the public or private sale of any such securities,
regardlessof whether any such distribution and/or sale is made
by, for, or received from, or (in each case) on behalf of, the
Depositary, the Companyand/or any third party (which fee may be
assessed against Holders as of a record date set by the Depositary),
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(iii) an aggregate fee of up to U.S.$0.05 per ADS per calendar year (or
portion thereof) for services performed by the Depositary in
administeringthe ADRs (which fee may be charged on a periodic basis
during each calendar year and shall be assessed against Holders as
of the recorddate or record dates set by the Depositary during each
calendar year and shall be payable at the sole discretion of the
Depositary bybilling such Holders or by deducting such charge
from one or more cash dividends or other cash distributions), and
(iv) an amount for the reimbursement of such charges and expenses
as are incurred by the Depositary and/or any of its agents
(including,without limitation, the Custodian, as well as charges
and expenses incurred on behalf of Holders in connection with
compliance with foreignexchange control regulations or any law
or regulation relating to foreign investment) in connection with
the servicing of the Shares orother Deposited Securities, the
sale of securities (including, without limitation, Deposited
Securities), the delivery of Deposited Securitiesor otherwise
in connection with the Depositary's or its Custodian's
compliance with applicable law, rule or regulation (which chargesand
expenses may be assessed on a proportionate basis against
Holders as of the record date or dates set by the Depositary
and shall bepayable at the sole discretion of the Depositary
by billing such Holders or by deducting such charge or expense
from one or more cashdividends or other cash distributions).
(c)
Other Obligations, Fees, Charges and Expenses
.The Company will pay all other fees, charges and expenses of the Depositary
and any agent of the Depositary (except the Custodian) pursuantto 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) a transaction fee per cancellation request (including any cancellation request made through SWIFT, facsimile
transmission or any othermethod of communication) as disclosed on the "Disclosures" page (or successor page) of
www.adr.com
(as updated by the Depositary
from time to time, "
ADR.com
") and any applicable delivery expenses (which
are payable bysuch persons or Holders); and
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(iii) transfer or registration expenses for the registration or transfer of
Deposited Securities on any applicable register in connectionwith the
deposit or withdrawal of Deposited Securities (which are payable by
persons depositing Shares or Holders withdrawing DepositedSecurities).
(d)
Foreign Exchange Related Matters
. To facilitatethe administration of various depositary receipt transactions,
including disbursement of dividends or other cash distributions and
othercorporate actions, the Depositary may engage the foreign exchange desk
within JPMorgan Chase Bank, N.A. (the "
Bank
")and/or its affiliates in order to enter into spot foreign exchange
transactions to convert foreign currency into U.S. dollars ("
FXTransactions
"). For certain currencies, FX Transactions are entered into with the Bank or
an affiliate, as the case may be, actingin a principal capacity. For other
currencies, FX Transactions are routed directly to and managed by an
unaffiliated local custodian (orother third-party local liquidity provider),
and neither the Bank nor any of its affiliates is a party to such FX
Transactions.
The foreign exchange rate applied to an FX Transactionwill be either (i) a
published benchmark rate, or (ii) a rate determined by a third-party local
liquidity provider, in each caseplus or minus a spread, as applicable. The
Depositary will disclose which foreign exchange rate and spread, if any, apply
to such currencyon the "Disclosures" page (or successor page) of ADR.com. Such
applicable foreign exchange rate and spread may (and neitherthe Depositary,
the Bank nor any of their affiliates is under any obligation to ensure that
such rate does not) differ from rates andspreads at which comparable
transactions are entered into with other customers or the range of foreign
exchange rates and spreads at whichthe Bank or any of its affiliates enters
into foreign exchange transactions in the relevant currency pair on the date
of the FX Transaction.Additionally, the timing of execution of an FX
Transaction varies according to local market dynamics, which may include
regulatory requirements,market hours and liquidity in the foreign exchange
market or other factors. Furthermore, the Bank and its affiliates may manage
the associatedrisks of their position in the market in a manner they deem
appropriate without regard to the impact of such activities on the Company,the
Depositary, Holders or Beneficial Owners. The spread applied does not reflect
any gains or losses that may be earned or incurred bythe Bank and its
affiliates as a result of risk management or other hedging related activity.
Notwithstanding the foregoing, to the extent theCompany provides U.S. dollars
to the Depositary, neither the Bank nor any of its affiliates will execute an
FX Transaction as set forthherein. In such case, the Depositary will
distribute the U.S. dollars received from the Company.
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Further details relating to the applicable foreignexchange rate, the
applicable spread and the execution of FX Transactions will be provided by the
Depositary on ADR.com. The Company,Holders and Beneficial Owners each
acknowledge and agree that the terms applicable to FX Transactions disclosed
from time to time on ADR.comwill apply to any FX Transaction executed pursuant
to the Deposit Agreement.
(e) The right of the Depositary to charge and receivepayment of fees, charges
and expenses as provided above shall survive the termination of the Deposit
Agreement. Upon the resignation orremoval of the Depositary, such right shall
extend for those fees, charges and expenses incurred prior to the
effectiveness of such resignationor removal.
(f)
Disclosure of Potential Depositary Payments
.The Depositary anticipates reimbursing the Company for certain expenses
incurred by the Company that are related to the establishmentand maintenance
of the ADR program upon such terms and conditions as the Company and the
Depositary may agree from time to time. The Depositarymay make available to
the Company a set amount or a portion of the Depositary fees charged in
respect of the ADR program or otherwiseupon such terms and conditions as the
Company and the Depositary may agree from time to time.
(g) The Depositary may agree to reduce or waive certainfees, charges and
expenses provided herein and in the Deposit Agreement, including, without
limitation, those described in this paragraph(7) that would normally be
charged on ADSs issued to or at the direction of, or otherwise held by, the
Company and/ or certain Holdersand Beneficial Owners and holders and
beneficial owners of Shares of the Company.
(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 Custodianor its nominee as a holder of Deposited Securities and made
generally available to the holders of Deposited Securities, are availablefor
inspection by Holders at the offices of the Depositary in the United States,
on the Commission's Internet Website or upon requestto the Depositary (which
request may be refused by the Depositary at its discretion). The Depositary
will distribute copies of such communications(or English translations or
summaries thereof) to Holders when furnished by the Company.
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The Company is subject to the periodic reportingrequirements of the Securities
Exchange Act of 1934 and accordingly files certain reports with the
Commission. These reports can be inspectedand retrieved by Holders and
Beneficial Owners through the EDGAR system on the Commission's Internet
Website located as of the date ofthe Deposit Agreement at
www.sec.gov
and can be inspected and copied at the public reference facilitiesmaintained
by the Commission, located (as of the date of the Deposit Agreement) at 100 F
Street, N.E., Washington, D.C. 20549. Each Holderand Beneficial Owner of an
ADR and/or interest therein by so holding or owning an ADR and/or an interest
therein, acknowledges and agreesthat the Depositary (i) is relying, and may so
rely, solely on the Company's representations, warranties, covenants and
agreements inSection 13(a) of the Deposit Agreement and this paragraph (8) of
the form of ADR (
Available Information
), (ii) does not assumeany duty or responsibility to determine if the Company
is in compliance with the registration, reporting and other requirements of
theSecurities Exchange Act of 1934, and (iii) may, and is expressly authorized
by each Holder and Beneficial Owner of an ADR and/or an interesttherein to,
represent, warrant and certify that, based on such ongoing representations,
warranties, covenants and agreements of the Company,the Company is in
compliance with the registration, reporting and other requirements of the
Securities Exchange Act of 1934.
(9)
Execution
. This ADR shall not be validfor 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 383 MadisonAvenue, Floor 11, New York,
New York 10179.
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[FORMOF REVERSE OF ADR]
(10)
Distributions on Deposited Securities;Sales
. Subject to paragraphs (4) (
Certain Limitations to Registration, Transfer etc.
) and (5) (
Liability of Holder or BeneficialOwner for Taxes, Duties and other Charges
), to the extent practicable, the Depositary will distribute to each Holder
entitled theretoon the record date set by the Depositary therefor at such
Holder's address shown on the ADR Register, in proportion to the number of
DepositedSecurities (on which the following distributions on Deposited
Securities are received by the Custodian) represented by ADSs evidencedby such
Holder's ADRs:
(a)
Cash
. Any U.S. dollars available to theDepositary resulting from a cash dividend
or other cash distribution or the net proceeds of sales of any other
distribution or portionthereof authorized in this paragraph (10) ("
Cash
"), on an averaged or other practicable basis, subject to (i) appropriateadjustm
ents for taxes withheld, (ii) such distribution being permissible or
practicable with respect to certain Holders, and (iii) deductionof the
Depositary's and/or its agents' fees and expenses in (1) converting any
foreign currency to U.S. dollars by sale or in such othermanner as the
Depositary may determine to the extent that it determines that such conversion
may be made on a reasonable basis, (2) transferringforeign currency or U.S.
dollars to the United States by such means as the Depositary may determine to
the extent that it determines thatsuch transfer may be made on a reasonable
basis, (3) obtaining any approval or license of any governmental authority
required for suchconversion or transfer, which is obtainable at a reasonable
cost and within a reasonable time and (4) making any sale by public or
privatemeans in any commercially reasonable manner.
To the extent that any of the Deposited Securitiesis not or shall not be
entitled, by reason of its date of issuance, or otherwise, to receive the full
amount of such cash dividend, distribution,or net proceeds of sales, the
Depositary shall make appropriate adjustments in the amounts distributed to
the Holders issued in respectof such Deposited Securities. To the extent the
Company or the Depositary shall be required to withhold and does withhold from
any cashdividend, distribution or net proceeds from sales in respect of any
Deposited Securities an amount on account of taxes, the amount distributedon
the ADSs issued in respect of such Deposited Securities shall be reduced
accordingly.
To the extent the Depositary determines in its discretionthat it would not be
permitted by applicable law, rule or regulation, or it would not otherwise be
practicable, to convert foreign currencyinto U.S. dollars and/or distribute
such U.S. dollars to any or all of the Holders entitled thereto, the
Depositary may in its discretiondistribute some or all of the foreign currency
received by the Depositary as it deems permissible and practicable to, or
retain and holdsuch foreign currency uninvested and without liability for
interest thereon for the respective accounts of, the Holders entitled to
receivethe same.
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(b)
Shares
. (i) Additional ADRs evidencingwhole ADSs representing any Shares available
to the Depositary resulting from a dividend or free distribution on Deposited
Securitiesconsisting of Shares (a "
Share Distribution
") and (ii) U.S. dollars available to it resulting from the net proceeds
ofpublic or private sales of Shares received in a Share Distribution, which
Shares would give rise to fractional ADSs if additional ADRswere issued
therefor, as in the case of Cash.
(c)
Rights
. (i) Warrants or other instrumentsin the discretion of the Depositary
representing rights to acquire additional ADRs in respect of any rights to
subscribe for additionalShares 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 lawfullydistribute the
same (the Company has no obligation to so furnish such evidence), or (ii) to
the extent the Company does not so furnishsuch evidence and sales of Rights
are practicable, any U.S. dollars available to the Depositary from the net
proceeds of the public orprivate sales of Rights as in the case of Cash, or
(iii) to the extent the Company does not so furnish such evidence and/or such
salescannot practicably be accomplished by reason of the non-transferability
of the Rights, limited markets therefor, their short durationor otherwise,
nothing (and any Rights may lapse).
(d)
Other Distributions
. (i) Securities orproperty available to the Depositary resulting from any
distribution on Deposited Securities other than Cash, Share Distributions
andRights ("
Other Distributions
"), by any means that the Depositary may deem equitable and practicable, or
(ii) to the extentthe Depositary deems distribution of such securities or
property not to be equitable and practicable, any U.S. dollars available to
theDepositary from the net proceeds of public or private sales of Other
Distributions as in the case of Cash.
(e) To the extent that the Depositary determinesin its discretion that any
distribution pursuant to this paragraph (10) (
Distributions on Deposited Securities
) would not be permissibleby applicable law, rule or regulation, or is not
otherwise practicable with respect to any or all Holders, the Depositary may
in its discretionmake such distribution as it so deems permissible and
practicable, including the distribution of some or all of any Cash, foreign
currency,securities or other property (or appropriate documents evidencing the
right to receive some or all of any such Cash, foreign currency,securities or
other property), and/or the Depositary may retain and hold some or all of such
Cash, foreign currency, securities or otherproperty as Deposited Securities
with respect to the applicable Holders' ADRs (without liability for interest
thereon or the investmentthereof).
(f) To the extent the Depositary retains and holdsany Cash, foreign currency,
securities or other property as permitted under this paragraph (10) (
Distributions on Deposited Securities
),any and all fees, charges and expenses related to, or arising from, the
holding thereof (including, but not limited to those providedin paragraph (7)
of this form of ADR (
Charges of Depositary
)) shall be paid from such Cash, foreign currency, securities or otherproperty,
or the net proceeds from the sale thereof, thereby reducing the amount so held
hereunder.
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(g)
Sales
. In all instances where the DepositAgreement or the form of ADR refers to a
"sale" (or words of similar import) of securities or property, the Depositary
may,but shall not be obligated, to effect any such sale unless the securities
to be sold are listed and publicly traded on a securities exchangeor there is
a public market for the property to be sold. To the extent the securities are
not so listed and publicly traded or there isno public market for the property
so distributed by the Company:
(i) the Depositary shall, in the event the Deposit Agreement is terminated and the Depositary
holds Deposited Securities that are notlisted and publicly traded or property for
which there is no public market after the Termination Date, act in accordance with
paragraph(17)(b) of the form of ADR in respect of such securities and property; and
(ii) in the event the Depositary or its Custodian receives (A) an Other Distribution under paragraph (10)
consisting of securities or propertythat are not distributed by the Depositary pursuant to this paragraph
(10) or (B) a distribution of Rights that falls under subparagraph(10)(c)(iii) above, the Depositary
will not terminate the Deposit Agreement under paragraph (17)(a)(ii)(D) of the form of ADR but,
inlieu of termination, the Depositary will, in the case of an Other Distribution, be deemed to have
sold the aggregate number of securitiesand/or property so received for nominal value and shall have no
obligation to distribute such securities or any proceeds from the deemedsale thereof to the Holders
and, in the case of Rights that fall under subparagraph (10)(c)(iii) above, allow such Rights to lapse.
Furthermore, in the event the Depositary endeavorsto make a sale of Shares,
other securities or property, such securities and/or property may be sold in a
block sale or single lot transaction.
The Depositary reserves the right to utilize a division,branch or affiliate of
JPMorgan Chase Bank, N.A. to direct, manage and/or execute any public and/or
private sale of securities and/orproperty hereunder. Such division, branch
and/or affiliate may charge the Depositary a fee in connection with such
sales, which fee isconsidered an expense of the Depositary contemplated above
and/or under paragraph (7) (
Charges of Depositary
). All purchases andsales of securities will be handled by the Depositary in
accordance with its then current policies, which are currently set forth on
the"Disclosures" page (or successor page) of ADR.com, the location and
contents of which the Depositary shall be solely responsiblefor.
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(h) Any U.S. dollars available will be paid via wiretransfer and/or
distributed by checks drawn on a bank in the United States for whole dollars
and cents. Fractional cents will be withheldwithout liability and dealt with
by the Depositary in accordance with its then current practices.
(11)
Record Dates
. The Depositary may, afterconsultation with the Company if practicable, fix a
record date (which, to the extent applicable, shall be as near as practicable
to anycorresponding record date set by the Company) for the determination of
the Holders who shall be responsible for the fee assessed by theDepositary for
administration of the ADR program and for any expenses provided for in
paragraph (7) hereof as well as for the determinationof the Holders who shall
be entitled to receive any distribution on or in respect of Deposited
Securities, to give instructions for theexercise of any voting rights, to
receive any notice or to act in respect of other matters and only such Holders
shall be so entitledor obligated.
(12)
Voting of Deposited Securities
.
(a)
Notice of Any Meeting or Solicitation
.As soon as practicable after receipt of notice of any meeting at which the
holders of Shares are entitled to vote, or of solicitationof consents or
proxies from holders of Shares or other Deposited Securities, the Depositary
shall fix the ADS record date in accordancewith paragraph (11) above provided
that if the Depositary receives a written request from the Company in a timely
manner and at leastthirty (30) days prior to the date of such vote or meeting,
the Depositary shall, at the Company's expense, distribute to Holders a
notice(the "
Voting Notice
") stating (i) final information particular to such vote and meeting and any
solicitation materials,(ii) that each Holder on the record date set by the
Depositary will, subject to any applicable provisions of the laws of the
Cayman Islands,be entitled to instruct the Depositary as to the exercise of
the voting rights, if any, pertaining to the Deposited Securities
representedby the ADSs evidenced by such Holder's ADRs and (iii) the manner in
which such instructions may be given or deemed given in accordancewith
paragraph 12(b)(ii) below, including instructions to give a discretionary
proxy to a person designated by the Company. Each Holdershall be solely
responsible for the forwarding of Voting Notices to the Beneficial Owners of
ADSs registered in such Holder's name. Thereis no guarantee that Holders and
Beneficial Owners generally or any Holder or Beneficial Owner in particular
will receive the notice describedabove with sufficient time to enable such
Holder or Beneficial Owner to return any voting instructions to the Depositary
in a timely manner.
(b)
Voting of Deposited Securities
. Followingactual receipt by the ADR department responsible for proxies and
voting of Holders' instructions (including, without limitation, instructionsof
any entity or entities acting on behalf of the nominee for DTC), the
Depositary shall, in the manner and on or before the time establishedby the
Depositary for such purpose, endeavor to vote or cause to be voted the
Deposited Securities represented by the ADSs evidenced bysuch Holders' ADRs in
accordance with such instructions insofar as practicable and permitted under
the provisions of or governing DepositedSecurities. The Depositary will not
itself exercise any voting discretion in respect of any Deposited Securities.
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(c)
Alternative Methods of Distributing Materials.
Notwithstanding anything contained in the Deposit Agreement or any ADR, the
Depositary may, to the extent not prohibited by any law,rule or regulation or
by the rules, regulations or requirements of the stock exchange on which the
ADSs are listed, in lieu of distributionof the materials provided to the
Depositary in connection with any meeting of or solicitation of consents or
proxies from holders of DepositedSecurities, distribute to the Holders a
notice that provides Holders with or otherwise publicizes to Holders
instructions on how to retrievesuch materials or receive such materials upon
request (
i.e.
, by reference to a website containing the materials for retrieval ora contact
for requesting copies of the materials). Holders are strongly encouraged to
forward their voting instructions as soon as possible.Voting instructions will
not be deemed received until such time as the ADR department responsible for
proxies and voting has receivedsuch instructions, notwithstanding that such
instructions may have been physically received by JPMorgan Chase Bank, N.A.,
as Depositary,prior to such time.
(d)
Manner of Voting
. The Depositary has beenadvised by the Company that under Cayman Islands law
and the Memorandum and Articles of Association of the Company, each as in
effectas of the date of the Deposit Agreement, voting at any meeting of
shareholders of the Company is by show of hands unless a poll is (beforeor on
the declaration of the results of the show of hands or on the withdrawal of
any other demand for a poll) demanded. In the eventthat voting on any
resolution or matter is conducted on a show of hands basis in accordance with
the Memorandum and Articles of Association,the Depositary will refrain from
voting and the voting instructions received by the Depositary from Holders
shall lapse. The Depositarywill not demand a poll or join in demanding a poll,
whether or not requested to do so by Holders of ADSs.
(13)
Changes Affecting Deposited Securities
.
(a) Subject to paragraphs (4) (
Certain Limitationsto Registration, Transfer etc.
) and (5) (
Liability of Holder or Beneficial Owner for Taxes, Duties and Other Charges
), theDepositary may, in its discretion, and shall if reasonably requested by
the Company, amend this ADR or distribute additional or amendedADRs (with or
without calling this ADR for exchange) or cash, securities or property on the
record date set by the Depositary thereforto reflect any change in par value,
split-up, consolidation, cancellation or other reclassification of Deposited
Securities, any ShareDistribution or Other Distribution not distributed to
Holders or any cash, securities or property available to the Depositary in
respectof Deposited Securities from (and the Depositary is hereby authorized
to surrender any Deposited Securities to any person and, irrespectiveof
whether such Deposited Securities are surrendered or otherwise cancelled by
operation of law, rule, regulation or otherwise, to sellby 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.
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(b) To the extent the Depositary does not so amendthis ADR or make a
distribution to Holders to reflect any of the foregoing, or the net proceeds
thereof, whatever cash, securities orproperty results from any of the
foregoing shall constitute Deposited Securities and each ADS evidenced by this
ADR shall automaticallyrepresent its pro rata interest in the Deposited
Securities as then constituted.
(c) Promptly upon the occurrence of any of the aforementionedchanges affecting
Deposited Securities, the Company shall notify the Depositary in writing of
such occurrence and as soon as practicableafter receipt of such notice from
the Company, may instruct the Depositary to give notice thereof, at the
Company's expense, to Holdersin accordance with the provisions hereof. Upon
receipt of such instruction, the Depositary shall give notice to the Holders
in accordancewith the terms thereof, as soon as reasonably practicable.
(14)
Exoneration
.
(a)
Force Majeure, Limitations on Liability andObligations
. The Depositary, the Company, and each of their respective directors,
officers, employees, agents and affiliates and eachof them shall:
(i) incur or assume no liability (including, without limitation, to Holders or Beneficial Owners) (A) if
any present or future law, rule,regulation, fiat, order or decree of the Cayman Islands, Hong Kong,
the People's Republic of China, the United States or any othercountry or jurisdiction, 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, epidemic, pandemic, nationalization,
expropriation, currency restrictions, extraordinary market conditions, work stoppage,strike, civil
unrest, revolutions, rebellions, explosions, cyber, ransomware or malware attack, computer failure
or circumstance beyondits direct and immediate control shall prevent or delay, or shall cause any
of them to be subject to any civil or criminal penalty inconnection with, any act which the Deposit
Agreement or this ADR provides shall be done or performed by it or them (including, withoutlimitation,
voting pursuant to paragraph (12) hereof), or (B) by reason of any non-performance or
delay, caused as aforesaid, in the performanceof any act or things which by the terms of the Deposit
Agreement it is provided shall or may be done or performed or any exercise or failureto exercise
any discretion given it in the Deposit Agreement or this ADR (including, without limitation, any
failure to determine thatany distribution or action may be lawful or reasonably practicable);
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(ii) incur or assume no liability (including, without limitation, to Holders or Beneficial Owners)
except to perform its obligations tothe extent they are specifically set forth in this
ADR and the Deposit Agreement without gross negligence or willful misconduct and theDepositary
shall not be a fiduciary or have any fiduciary duty to Holders or Beneficial Owners;
(iii) in the case of the Depositary and its agents, be under no obligation to appear in, prosecute or defend
any action, suit or other proceedingin respect of any Deposited Securities, the ADSs or this ADR;
(iv) in the case of the Company and its agents hereunder be under no obligation to appear in, prosecute or defend
any action, suit or otherproceeding in respect of any Deposited Securities, the ADSs or this ADR, which in its
opinion may involve it in expense or liability,unless indemnity reasonably satisfactory to it against all expense
(including fees and disbursements of counsel) and liability be furnishedas often as may be required; and
(v) not be liable (including, without limitation, to Holders or Beneficial Owners) for any action or
inaction by it in reliance upon theadvice of or information from any legal counsel, any accountant,
any person presenting Shares for deposit, any Holder, or any other personbelieved by it to be
competent to give such advice or information and/or, in the case of the Depositary, the Company.
(b)
Insolvency, Liability, etc., of Custodian,Securities Depository, Clearing
Agency or Settlement System
. The Depositary shall not be responsible for, and shall incur no liabilityin
connection with or arising from, the insolvency of any Custodian that is not a
branch or affiliate of JPMorgan Chase Bank, N.A. Notwithstandinganything to
the contrary contained in the Deposit Agreement (including the ADRs) and,
subject to the further limitations set forth inclause (q) of this paragraph
(14), the Depositary shall not be responsible for, and shall incur no
liability in connection with or arisingfrom, any act or omission to act on the
part of the Custodian except to the extent that any Holder has incurred
liability directly asa result of the Custodian having (i) committed fraud or
willful misconduct in the provision of custodial services to the Depositary
or(ii) failed to use reasonable care in the provision of custodial services to
the Depositary as determined in accordance with the standardsprevailing in the
jurisdiction in which the Custodian is located.
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The Depositary shall not be liable for the acts oromissions made by, or the
insolvency of, any securities depository, clearing agency or settlement system.
(c) The Depositary, its agents and the Company mayrely and shall be protected
in acting upon any written notice, request, direction, instruction or document
believed by them to be genuineand to have been signed, presented or given by
the proper party or parties.
(d) The Depositary shall be under no obligation toinform Holders or Beneficial
Owners about the requirements of the laws, rules or regulations or any changes
therein or thereto of theCayman Islands, Hong Kong, the People's Republic of
China, the United States or any other country or jurisdiction or of any
governmentalor regulatory authority or any securities exchange or market or
automated quotation system.
(e) The Depositary and its agents will not be responsiblefor any failure to
carry out any instructions to vote any of the Deposited Securities, for the
manner in which any voting instructionsare given or deemed to be given in
accordance with paragraph 12(b) hereof, including instructions to give a
discretionary proxy to a persondesignated by the Company, for the manner in
which any vote is cast, including, without limitation, any vote cast by a
person to whomthe Depositary is instructed to grant a discretionary proxy
pursuant to paragraph (12) hereof or deemed to have been instructed to granta
discretionary proxy pursuant to paragraph (12)(b) hereof, or for the effect of
any such vote.
(f) The Depositary shall endeavor to effect any saleof securities or other
property and any conversion of currency, securities or other property, in each
case as is referred to or contemplatedin the Deposit Agreement or the form of
ADR, in accordance with the Depositary's normal practices and procedures under
the circumstancesapplicable to such sale or conversion, but shall have no
liability (in the absence of its own willful default or gross negligence or
thatof its agents, officers, directors or employees) with respect to the terms
of any such sale or conversion, including the price at whichsuch sale or
conversion is effected, or if such sale or conversion shall not be
practicable, or shall not be believed, deemed or determinedto be practicable
by the Depositary. Specifically, the Depositary shall not have any liability
for the price received in connection withany public or private sale of
securities (including, without limitation, for any sale made at a nominal
price), the timing thereof orany delay in action or omission to act nor shall
it be responsible for any error or delay in action, omission to act, default
or negligenceon the part of the party so retained in connection with any such
sale or proposed sale.
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(g) The Depositary shall not incur any liabilityin connection with or arising
from any failure, inability or refusal by the Company or any other party,
including any share registrar,transfer agent or other agent appointed by the
Company, the Depositary or any other party, to process any transfer, delivery
or distributionof cash, Shares, other securities or other property, including
without limitation upon the termination of the Deposit Agreement, or
otherwiseto comply with any provisions of the Deposit Agreement that are
applicable to it.
(h) The Depositary may rely upon instructions fromthe Company or its counsel
in respect of any approval or license required for any currency conversion,
transfer or distribution.
(i) The Depositary and its agents may own and dealin any class of securities
of the Company and its affiliates and in ADRs.
(j) Notwithstanding anything to the contrary setforth in the Deposit Agreement
or an ADR, the Depositary and its agents may fully respond to any and all
demands or requests for informationmaintained by or on its behalf in
connection with the Deposit Agreement, any Holder or Holders, any ADR or ADRs
or otherwise related heretoor thereto to the extent such information is
requested or required by or pursuant to any lawful authority, including
without limitationlaws, rules, regulations, administrative or judicial
process, banking, securities or other regulators.
(k) None of the Depositary, the Custodian or theCompany, or any of their
respective directors, officers, employees, agents or affiliates shall be
liable for the failure by any Holderor Beneficial Owner to obtain the benefits
of credits or refunds of non-U.S. tax paid against such Holder's or Beneficial
Owner's incometax liability.
(l) Neither the Depositary nor the Company, nor anyof their respective agents,
are under any obligation to provide the Holders and Beneficial Owners, or any
of them, with any informationabout the tax status of the Company. None of the
Depositary, the Custodian or the Company, or any of their respective
directors, officers,employees, agents and affiliates, shall incur any
liability for any tax or tax consequences that may be incurred by Holders or
BeneficialOwners on account of their ownership or disposition of the ADRs or
ADSs.
(m) The Depositary shall not incur any liabilityfor the content of any
information submitted to it by or on behalf of the Company for distribution to
the Holders or for any inaccuracyof any translation thereof, for any
investment risk associated with acquiring an interest in the Deposited
Securities, for the validityor worth of the Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon
the terms ofthe Deposit Agreement or for the failure or timeliness of any
notice from the Company.
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(n) Notwithstanding anything herein or in the DepositAgreement to the
contrary, the Depositary and the Custodian(s) may use third-party delivery
services and providers of information regardingmatters such as, but not
limited to, pricing, proxy voting, corporate actions, class action litigation
and other services in connectionherewith and the Deposit Agreement, and use
local agents to provide services such as, but not limited to, attendance at
any meetings ofsecurity holders of issuers. Although the Depositary and the
Custodian will use reasonable care (and cause their agents to use
reasonablecare) in the selection and retention of such third-party providers
and local agents, they will not be responsible for any errors or omissionsmade
by them in providing the relevant information or services.
(o) The Depositary shall not be liable for any actsor omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection withany matter arising wholly after the
removal or resignation of the Depositary.
(p) The Company has agreed to indemnify the Depositaryand its agents under
certain circumstances and the Depositary has agreed to indemnify the Company
under certain circumstances.
(q) Notwithstanding any other provision of the DepositAgreement or this ADR to
the contrary, neither the Company, the Depositary nor any of their respective
agents shall be liable to Holdersor Beneficial Owners for any indirect,
special, punitive or consequential damages (including, without limitation,
legal fees and expenses)or lost profits, in each case of any form incurred by
any person or entity (including, without limitation, Holders and Beneficial
Ownersof ADRs and ADSs), whether or not foreseeable and regardless of the type
of action in which such a claim may be brought.
(r) No provision of the Deposit Agreement or thisADR is intended to constitute
a waiver or limitation of any rights which Holders or Beneficial Owners may
have under the Securities Actof 1933 or the Securities Exchange Act of 1934,
to the extent applicable.
(15)
Resignation and Removal of Depositary;the Custodian
.
(a)
Resignation
. The Depositary may at anytime resign as Depositary by providing written
notice of its election to do so delivered to the Company. Subject to
subparagraph (c) below,the Depositary's resignation shall take effect upon the
Company's appointment of a successor depositary and such successor
depositary'sacceptance of its appointment as provided in the Deposit Agreement.
(b)
Removal
. The Depositary may at any timebe removed by the Company by providing no less
than sixty (60) days' prior written notice of such removal to the Depositary.
Subject tosubparagraph (c) below, such removal shall take effect on the later
of (i) the sixtieth (60th) day after the Removal Notice Date and (ii)the
Company's appointment of a successor depositary and such successor
depositary's acceptance of its appointment as provided in the DepositAgreement.
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J.P.Morgan
(c) If either the Depositary provides notice of itsresignation (pursuant to
subparagraph (a) above) or the Company provides notice of the Depositary's
removal (pursuant to subparagraph(b) above), and a successor depositary is not
appointed by the sixtieth (60th) day after the Resignation Notice Date or the
Removal NoticeDate, respectively, the Depositary may terminate the Deposit
Agreement and the ADR in the manner set out in paragraph (17) (
Termination
)of this ADR and the provisions of said paragraph (17) shall thereafter govern
the Depositary's obligations under the Deposit Agreementand the form of ADR.
(d)
The Custodian
. The Depositary may appointsubstitute or additional Custodians and the term "
Custodian
" refers to each Custodian or all Custodians as the contextrequires.
(16)
Amendment
. Subject to the last sentenceof paragraph (2) (
Withdrawal of Deposited Securities
), the ADRs and the Deposit Agreement may be amended by the Company and
theDepositary,
provided
that any amendment that imposes or increases any fees on a per ADS basis,
charges or expenses (other thanstock transfer or other taxes and other
governmental charges, transfer or registration fees, the transaction fee per
cancellation request(including any cancellation request made through SWIFT,
facsimile transmission or any other method of communication) described in
paragraph(7)(c)(ii) (
Charges of Depositary
) of the form of ADR, applicable delivery expenses or other such fees, charges
or expenses), orthat shall otherwise prejudice any substantial existing right
of Holders or Beneficial Owners, shall become effective thirty (30) daysafter
notice of such amendment shall have been given to the Holders. Every Holder
and Beneficial Owner at the time any amendment to theDeposit Agreement so
becomes effective shall be deemed, by continuing to hold such ADR or interest
therein, to consent and agree to suchamendment and to be bound by the Deposit
Agreement as amended thereby. In no event shall any amendment impair the right
of the Holderof any ADR to surrender such ADR and receive the Deposited
Securities represented thereby, except in order to comply with mandatory
provisionsof applicable law.
Any amendments or supplements that (i) are reasonablynecessary (as agreed by
the Company and the Depositary) in order for (a) the ADSs to be registered on
Form F-6 under the Securities Actof 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 increaseany fees or charges to be borne by Holders, shall be
deemed not to prejudice any substantial rights of Holders or Beneficial Owners.
Notwithstanding the foregoing, if any governmentalbody or regulatory body
should adopt new laws, rules or regulations which would require amendment or
supplement of the Deposit Agreementor the form of ADR to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and theADR at any time in accordance with such changed laws, rules
or regulations. Such amendment or supplement to the Deposit Agreement in
suchcircumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of timeas required
for compliance.
Notice of any amendment to the Deposit Agreementor the form of ADRs shall not
need to describe in detail the specific amendments effectuated thereby, and
failure to describe the specificamendments in any such notice shall not render
such notice invalid, provided, however, that, in each such case, the notice
given to theHolders identifies a means for Holders and Beneficial Owners to
retrieve or receive the text of such amendment (
i.e.
, upon retrievalfrom the Commission's, the Depositary's or the Company's
website or upon request from the Depositary).
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J.P.Morgan
(17)
Termination
.
(a)
Termination by the Depositary and the Company
.
(i) The Depositary shall, at any time at the written direction of the Company, terminate the Deposit Agreement
by mailing notice of suchtermination to the Holders at least thirty (30) days prior to the Termination Date.
(ii) The Depositary may also terminate the
Deposit Agreement by mailing notice of such
termination to the Holders at least thirty
(30)days prior to the Termination Date
if
(A) sixty (60) days shall have expired after the Resignation Notice
Date and a successorDepositary shall not be operating under the Deposit
Agreement, (B) sixty (60) days shall have expired after the Removal Notice
Date anda successor Depositary shall not be operating under the Deposit
Agreement, (C) the Company is bankrupt, in liquidation proceedings
orinsolvent, (D) the ADRs are delisted from a "national securities exchange"
(that has registered with the Commission under Section6 of the Securities
Exchange Act of 1934), (E) the Company effects (or will effect) a
redemption of all or substantially all of the DepositedSecurities, or a
cash or share distribution representing a return of all or substantially
all of the value of the Deposited Securities,(F) there are no Deposited
Securities with respect to ADSs remaining, including if the Deposited
Securities are cancelled, or the DepositedSecurities have been deemed
to have no value, or (G) there occurs a merger, consolidation, sale of
assets or other transaction asa result of which securities or other
property are delivered in exchange for or in lieu of Deposited Securities.
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J.P.Morgan
(iii) Additionally, the Depositary may immediately terminate the Deposit
Agreement, without prior notice to the Company, any Holder
or BeneficialOwner or any other person if (A) required by any
law, rule or regulation relating to sanctions by any governmental
authority or body,(B) the Depositary would be subject to liability
under or pursuant to any law, rule or regulation, or (C)
required by any governmentalauthority or body, in each case
as determined by the Depositary in its reasonable discretion.
(b)
Depositary's Obligations
.
(i) After the Termination Date, the Depositary and its agents will perform no further acts under the Deposit Agreement
and this ADR, exceptto receive and hold (or sell) distributions on Deposited Securities, deliver Deposited
Securities being withdrawn and to take such actionsas provided in the next two paragraphs, in each case subject
to payment to the Depositary of the applicable fees and expenses providedin paragraph (7) of this form of ADR (
Charges of Depositary
).
(ii) After the Termination Date, if the Deposited Securities are listed and publicly traded on a securities exchange
and the Depositarybelieves that it is able, permissible and practicable to sell the Deposited Securities
without undue effort, then, the Depositary mayendeavor to publicly or privately sell (as long as it may
lawfully do so) the Deposited Securities, which sale may be effected in a blocksale/single lot transaction
and, after the settlement of such sale(s), to the extent legally permissible and practicable, distribute
orhold in an account (which may be a segregated or unsegregated account) the net proceeds of such sale(s),
less any amounts owing to theDepositary (including, without limitation, cancellation fees), together with any
other cash then held by it under the Deposit Agreement,in trust, without liability for interest, for the
pro rata
benefit of the Holders entitled thereto.
If the Depositary sells theDeposited
Securities, the Depositary shall
be discharged from all, and cease
to have any, obligations under the
Deposit Agreement andthe ADRs after
making such sale, except to account
for such net proceeds and other cash.
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J.P.Morgan
(iii) However, if the Deposited Securities are not listed and publicly traded on a
securities exchange after the Termination Date, or if,for any reason, the
Depositary does not sell the Deposited Securities, the Depositary shall use
its reasonable efforts to ensure thatthe ADSs cease to be DTC eligible and
that neither DTC nor any of its nominees shall thereafter be a Holder. At such
time as the ADSscease to be DTC eligible and/or neither DTC nor any of its
nominees is a Holder, to the extent the Company is not, to the Depositary'sknowledge,
insolvent or in bankruptcy or liquidation, the Depositary shall:
(A) cancel this ADR and all other outstanding ADRs,
(B) request DTC to provide the Depositary with information on those holding ADSs through DTCand,
upon receipt thereof, revise the ADR Register to reflect the information provided by DTC,
(C) instruct its Custodian
to deliver all Deposited
Securities to the Company, a
subsidiary oraffiliate or
registered office provider of
the Company (the subsidiary
or affiliate or registered
office provider being the "
CompanyRepresentative
")
or
an independent trust company
engaged by the Company (the "
Trustee
") to hold thoseDeposited Securities in
trust for the beneficial owners of the ADRs
if
the Company is not permitted to hold any of the DepositedSecurities under
applicable law and/or the Company has directed the Depositary to deliver
such Deposited Securities to a Company Representativeor Trustee along
with a stock transfer form and/or such other instruments of transfer
covering such Deposited Securities as are neededunder applicable law,
and set forth in or substantially in the form of Exhibit C (and any
applicable share certificate or indemnity forlost share certificate), in
either case referring to the names set forth on the ADR Register, and
(D) provide the Company with a copy of the ADR Register (which copy may be sent by email
or by any means permitted under the notice provisionsof the Deposit Agreement).
Upon receipt of any instrument of transfer coveringsuch Deposited Securities,
any applicable share certificate or indemnity for lost share certificate and
the ADR Register, the Companyshall: (I) approve the transfer of the Deposited
Securities previously represented by their ADRs to the persons listed on the
ADRRegister (as applicable), (II) procure the relevant updates to the register
of members of the Company to reflect the transfer ofthe Deposited Securities
previously represented by their ADRs to the persons listed on the ADR Register
(as applicable) and (III) providethe Depositary with a certified copy of the
updated register of members of the Company.
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J.P.Morgan
To the extent the Depositary reasonably believesthat the Company is insolvent,
or if the Company is in receivership, has filed for bankruptcy and/or is
otherwise in restructuring, administrationor liquidation, and in any such case
the Deposited Securities are not listed and publicly traded on a securities
exchange after the TerminationDate, or if, for any reason, the Depositary
believes it is not able to or cannot practicably sell the Deposited Securities
promptly andwithout undue effort, the Deposited Securities shall be deemed to
have no value (and such Holders shall be deemed to have instructed
theDepositary that the Deposited Securities have no value). The Depositary
may, but shall not be obligated to, and the Holders irrevocablyconsent and
agree that the Depositary may instruct its Custodian to deliver all Deposited
Securities to the Company (acting, as applicableby its administrator,
receiver, administrative receiver, liquidator, provisional liquidator,
restructuring officer, interim restructuringofficer, trustee, controller or
other entity overseeing the bankruptcy, insolvency, administration,
restructuring or liquidation process)and notify the Company that the Deposited
Shares are surrendered for no consideration. The Company shall, subject to
applicable law, promptlyaccept the surrender of the Deposited Shares for no
consideration and deliver to the Depositary a written notice confirming (A)
the acceptanceof the surrender of the Deposited Securities for no
consideration and (B) the cancellation of such Deposited Shares. Promptly
afternotifying the Company that the Deposited Shares are surrendered for no
consideration and irrespective of whether the Company has compliedwith the
immediately preceding sentence, the Depositary shall notify Holders that their
ADSs have been cancelled with no considerationbeing payable to Holders.
Upon the Depositary's compliance with the provisionsof this subparagraph
(17)(b)(iii), the Depositary and its agents shall be discharged from all, and
cease to have any, obligations underthe Deposit Agreement and the ADRs.
(c)
Company's Obligations
. After the TerminationDate, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations under this
paragraph(17) and its obligations to the Depositary and its agents.
(d)
Establishment of Unsponsored ADR Program
.Notwithstanding anything to the contrary, in connection with any termination
pursuant to this paragraph (17), the Depositary may, in itssole discretion and
without notice to the Company, establish an unsponsored American depositary
share program (on such terms as the Depositarymay determine) for the Shares
and make available to Holders a means to withdraw the Shares represented by
the ADSs issued under the DepositAgreement and to direct the deposit of such
Shares into such unsponsored American depositary share program, subject, in
each case, toreceipt by the Depositary, at its discretion, of the fees,
charges and expenses provided for in paragraph (7) hereof and the fees,
chargesand expenses applicable to the unsponsored American depositary share
program.
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J.P.Morgan
(18)
Appointment; Acknowledgements and Agreements
.Each Holder and each Beneficial Owner, upon acceptance of any ADSs or ADRs
(or any interest in any of them) issued in accordance withthe 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 theDeposit Agreement and the applicable
ADR(s), (b) appoint the Depositary its attorney-in-fact, with full power to
delegate, to act on itsbehalf and to take any and all actions contemplated in
the Deposit Agreement and the applicable ADR(s), to adopt any and all
proceduresnecessary to comply with applicable law and to take such action as
the Depositary in its sole discretion may deem necessary or appropriateto
carry out the purposes of the Deposit Agreement and the applicable ADR(s), the
taking of such actions to be the conclusive determinantof the necessity and
appropriateness thereof, and (c) acknowledge and agree that (i) nothing in the
Deposit Agreement or any ADR shallgive rise to a partnership or joint venture
among the parties thereto, nor establish a fiduciary or similar relationship
among such parties,(ii) the Depositary, its divisions, branches and
affiliates, and their respective agents, may from time to time be in the
possession ofnon-public information about the Company, Holders, Beneficial
Owners and/or their respective affiliates, (iii) the Depositary and
itsdivisions, branches and affiliates may at any time have multiple banking
relationships with the Company, Holders, Beneficial Owners and/orthe
affiliates of any of them, (iv) the Depositary and its divisions, branches and
affiliates may, from time to time, be engaged in transactionsin which parties
adverse to the Company or the Holders or Beneficial Owners and/or their
respective affiliates may have interests, (v)nothing contained in the Deposit
Agreement or any ADR(s) shall (A) preclude the Depositary or any of its
divisions, branches or affiliatesfrom engaging in any such transactions or
establishing or maintaining any such relationships, or (B) obligate the
Depositary or anyof its divisions, branches or affiliates to disclose any such
transactions or relationships or to account for any profit made or
paymentreceived in any such transactions or relationships, (vi) the Depositary
shall not be deemed to have knowledge of any information heldby any branch,
division or affiliate of the Depositary and (vii) notice to a Holder shall be
deemed, for all purposes of the Deposit Agreementand this ADR, to constitute
notice to any and all Beneficial Owners of the ADSs evidenced by such Holder's
ADRs. For all purposes underthe Deposit Agreement and this ADR, the Holder
hereof shall be deemed to have all requisite authority to act on behalf of any
and allBeneficial Owners of the ADSs evidenced by this ADR.
(19)
Waiver
. EACH PARTY TO THE DEPOSIT AGREEMENT(INCLUDING, FOR AVOIDANCE OF DOUBT, EACH
HOLDER AND BENEFICIAL OWNER OF, AND/OR HOLDER OF INTERESTS IN, ADSS OR ADRS)
HEREBY IRREVOCABLYWAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDINGAGAINS
T THE DEPOSITARY AND/OR THE COMPANY DIRECTLY OR INDIRECTLY ARISING OUT OF,
BASED ON OR RELATING IN ANY WAY TO THE SHARES OR OTHERDEPOSITED SECURITIES,
THE ADSs OR THE ADRs, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREIN OR THEREIN, OR THE BREACH HEREOFOR THEREOF (WHETHER BASED ON CONTRACT,
TORT, COMMON LAW OR ANY OTHER THEORY), INCLUDING, WITHOUT LIMITATION, ANY
SUIT, ACTION, CLAIM ORPROCEEDING UNDER THE UNITED STATES FEDERAL SECURITIES
LAWS. No provision of the Deposit Agreement or this ADR is intended to
constitutea waiver or limitation of any rights that a Holder or any Beneficial
Owner may have under the Securities Act of 1933 or the SecuritiesExchange Act
of 1934, to the extent applicable.
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J.P.Morgan
(20)
Jurisdiction.
By holding or owningan ADR or ADS or an interest therein, Holders and
Beneficial Owners each irrevocably agree that any legal suit, action or
proceeding againstor involving Holders or Beneficial Owners brought by the
Company or the Depositary, arising out of or based upon the Deposit
Agreement,the ADSs, the ADRs or the transactions contemplated therein, herein,
thereby or hereby, may be instituted in a federal or state courtin New York,
New York, and by holding or owning an ADR or ADS or an interest therein each
irrevocably waives any objection that it maynow or hereafter have to the
laying of venue of any such proceeding, and irrevocably submits to the
non-exclusive jurisdiction of suchcourts in any such suit, action or
proceeding.
By holding or owning an ADR or ADS or an interesttherein, Holders and
Beneficial Owners each also irrevocably agree that any legal suit, action or
proceeding against or involving theDepositary and/or the Company brought by
Holders or Beneficial Owners, arising out of or based upon the Deposit
Agreement, the ADSs, theADRs or the transactions contemplated therein, herein,
thereby or hereby, including, without limitation, claims under the Securities
Actof 1933, may be instituted only in the United States District Court for the
Southern District of New York (or in the state courts of NewYork County in New
York if either (i) the United States District Court for the Southern District
of New York lacks subject matter jurisdictionover a particular dispute or (ii)
the designation of the United States District Court for the Southern District
of New York as the exclusiveforum for any particular dispute is, or becomes,
invalid, illegal or unenforceable).
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J.P.Morgan
Notwithstanding the above or anything in the DepositAgreement to the contrary,
in the Deposit Agreement each of the parties thereto (
i.e.
, the Company, the Depositary and all Holdersand Beneficial Owners) have
agreed that: (i) the Depositary may, in its sole discretion, elect to
institute any dispute, suit, action,controversy, claim or proceeding directly
or indirectly based on, arising out of or relating to the Deposit Agreement,
the ADSs, the ADRsor the transactions contemplated therein, herein, thereby or
hereby, including without limitation any question regarding its or
theirexistence, validity, interpretation, performance or termination (each, a "
Dispute
"; collectively, "
Disputes
")against any other party or parties (including, without limitation, Disputes
brought against Holders and Beneficial Owners), by havingthe Dispute referred
to and finally resolved by an arbitration conducted under the terms set out
below, and (ii) the Depositary may inits sole discretion require, by written
notice to the relevant party or parties, that any Dispute brought by any party
or parties to theDeposit Agreement (including, without limitation, Disputes
brought by Holders and Beneficial Owners) against the Depositary be referredto
and finally settled by an arbitration conducted under the terms set out in the
Deposit Agreement; provided however, notwithstandingthe Depositary's written
notice under this clause (ii), to the extent there are specific federal
securities law violation aspects to anyclaims against the Company and/or the
Depositary brought by any Holder or Beneficial Owner, the federal securities
law violation aspectsof such claims brought by a Holder or Beneficial Owner
against the Company and/or the Depositary may, at the option of such Holder
orBeneficial Owner, remain in state or federal court in New York, New York and
all other aspects, claims, Disputes, legal suits, actionsand/or proceedings
brought by such Holder or Beneficial Owner against the Company and/or the
Depositary, including those brought alongwith, or in addition to, federal
securities law violation claims, would be referred to arbitration in
accordance herewith. Any such arbitrationshall, at the Depositary's election,
be conducted either in New York, New York in accordance with the Commercial
Arbitration Rules ofthe American Arbitration Association or in Hong Kong
following the arbitration rules of the United Nations Commission on
InternationalTrade Law (UNCITRAL) with the Hong Kong International Arbitration
Centre serving as the appointing authority, in each case as amendedby Section
20(d) of the Deposit Agreement, and the language of any such arbitration shall
be English, in each case as provided in theDeposit Agreement.
Notwithstanding anything contained herein or inthe Deposit Agreement to the
contrary, and for the avoidance of doubt, the Company and all Holders and
Beneficial Owners from time totime of ADRs issued hereunder (and any persons
owning or holding interests in ADSs) agree that any federal or state court in
New York,New York, shall have jurisdiction to hear and determine proceedings
related to the enforcement of this arbitration provision and any arbitrationawar
d by the arbitrators contemplated and, for such purposes, irrevocably submits
to the non-exclusive jurisdiction of such courts. Eachof the parties hereto
and to the Deposit Agreement (
i.e.
, the Company, the Depositary and all Holders and Beneficial Owners) agreesnot
to challenge the terms and enforceability of the arbitration clause contained
herein and in the Deposit Agreement, including, butnot limited to, any
challenge based on lack of mutuality, and each such party hereby irrevocably
waives any such challenge
(21)
Elective Distributions in Cash or Shares
.Whenever the Company intends to distribute a dividend payable at the election
of the holders of Shares in cash or in additional Shares,the Company shall
give notice thereof to the Depositary at least thirty (30) days prior to the
proposed distribution stating whether ornot it wishes such elective
distribution to be made available to Holders. Upon receipt of notice
indicating that the Company wishes suchelective distribution to be made
available to Holders, the Depositary shall consult with the Company to
determine, and the Company shallassist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution availableto the Holders. The Depositary shall make such elective
distribution available to Holders only if (i) the Company shall have timely
requestedthat the elective distribution is available to Holders, (ii) the
Depositary shall have determined that such distribution is reasonablypracticable
and (iii) the Depositary shall have received satisfactory documentation
within the terms of Section 14 of the Deposit Agreementincluding, without
limitation, any legal opinions of counsel in any applicable jurisdiction that
the Depositary in its reasonable discretionmay request, at the expense of the
Company. If the above conditions are not satisfied, the Depositary shall, to
the extent permitted bylaw, distribute to the Holders, on the basis of the
same determination as is made in the local market in respect of the Shares for
whichno election is made, either (x) cash or (y) additional ADSs representing
such additional Shares. If the above conditions are satisfied,the Depositary
shall establish a record date and establish procedures to enable Holders to
elect the receipt of the proposed dividendin cash or in additional ADSs. The
Company shall assist the Depositary in establishing such procedures to the
extent necessary. Nothingherein shall obligate the Depositary to make
available to Holders a method to receive the elective dividend in Shares
(rather than ADSs).There can be no assurance that Holders or Beneficial Owners
generally, or any Holder and/or Beneficial Owner in particular, will be
giventhe opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
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J.P.Morgan
EXHIBIT B
DEED OF UNDERTAKINGFROM Jiayin Group Inc. (the "Company")
To: JPMorgan Chase Bank, N.A. (the "
Depositary
")
383 Madison Avenue, Floor 11
New York, New York 10179
Attention: Depositary Receipts Group
E-mail:
DR_Global_CSM@jpmorgan.com
Date: [Date]
Jiayin Group Inc. (the "
Company
"or "
we
") refers to the Amended and Restated Deposit Agreement, dated as of [] 2024,
between, among others, theCompany and the Depositary (the "
Deposit Agreement
"). Capitalized words and expressions used in this deed poll that arenot
expressly defined herein shall have the meanings ascribed to them in the
Deposit Agreement.
The Company hereby irrevocably and unconditionallyundertakes to instruct its
registered office provider to register in the register of members of the
Company any and all share transferssubmitted by the Depositary to the Company,
including without limitation, any share transfer instructions submitted by the
Depositaryafter the Termination Date.
The Company shall promptly deliver to the Depositarya certified copy of the
updated register of members that reflects any share transfers submitted by the
Depositary to the Company in accordancewith the preceding paragraph.
This deed poll and the rights and obligationsof the parties hereunder shall be
governed by and construed in accordance with the laws of the Cayman Islands.
THISDEED POLL
has been executed as a deed and is delivered on the day and year first above
written.
EXECUTED AS A DEED )
for and on behalf of Jiayin Group Inc. by:
) _____________________________________
) Duly Authorised Signatory
)
) Name: __________________________
______
)
) Title:
_________________________________
in the presence of:
_________________________________________
Signature of Witness
Name:
____________________________________
Address:
__________________________________
B-1
J.P.Morgan
EXHIBIT C
SHARE TRANSFERFORM
Dated [Date]
JPMorgan Chase Bank, N.A.
(the "
Transferor
,""
we
" or "
us
"), for good and valuable consideration received by us from the parties listed
in the scheduleattached hereto (the "
Transferees
"), hereby transfers to the Transferees the shares as set out opposite their
name inthe table contained in the Schedule hereto (the "
Shares
").
SIGNED )
for and on behalf of
TRANSFEROR
:
)
_________________________________
) Duly Authorised Signatory
)
) Name: _________________________________
)
) Title:
_____________________________
C-1
J.P.Morgan
SCHEDULE TO EXHIBIT C
TRANSFEREES
Name Address Number of shares
[] [] [] [Class A Ordinary shares of a nominal or par value of [] each]
C-2
Ziegler, Ziegler & AssociatesLLP
Counselors at Law
570 Lexington Avenue, Suite 2405
New York, New York 10022
(212) 319-7600
Telecopier (212) 319-7605
May 23, 2024
JPMorgan Chase Bank, N.A., as Depositary
383 Madison Avenue, Floor 11
New York, New York 10179
American Depositary Shares
evidenced by American Depositary Receipts
for deposited class A ordinary shares of
Jiayin Group Inc.
Dear Sirs:
We have acted as counsel toJPMorgan Chase Bank, N.A., as depositary (the
"Depositary"), in connection with the Registration Statement on Form F-6
(the"Registration Statement") to be filed on the date hereof with the
Securities and Exchange Commission (the "Commission")pursuant to the
Securities Act of 1933, as amended (the "Securities Act of 1933"), by the
legal entity created by the DepositAgreement (as defined below) and Jiayin
Group Inc. a corporation organized under the laws of the Cayman Islands (the
"Company")with respect to up to 50,000,000 American Depositary Shares ("ADSs")
evidenced by American Depositary Receipts ("ADRs"),each ADS representing,
subject to the provisions of the Deposit Agreement and the ADRs, the right to
receive four class A ordinary shares("Shares") of the Company. The ADSs will
be issued pursuant to the terms and conditions of the Amended and Restated
DepositAgreement among the Company, the Depositary and all Holders and
Beneficial Owners from time to time of ADRs issued thereunder (the
"DepositAgreement"). The Deposit Agreement is being incorporated by reference
as exhibit (a) to the Registration Statement. Capitalizedterms used herein
that are not herein defined shall have the meanings assigned to them in the
Deposit Agreement.
In connection with this opinion,we have examined originals or copies,
certified or otherwise identified to our satisfaction, of such documents as we
considered necessaryor appropriate to enable us to render this opinion,
including but not limited to the Registration Statement, the Deposit Agreement
andthe form of ADR included as Exhibit A to the Deposit Agreement, as well as
such other corporate records, certificates and instrumentsas we have deemed
necessary or appropriate for purposes of rendering the opinions set forth
herein.
In rendering the opinionsset forth herein, we have assumed (i) the Deposit
Agreement, on signing, was duly authorized, executed and delivered by the
Company andconstitutes a valid and legally binding obligation of the Company
enforceable against it in accordance with its terms, (ii) that at thetime any
ADSs are issued, (a) the Registration Statement will have been declared
effective by the United States Securities and ExchangeCommission and remain
effective, (b) the relevant Deposited Securities will have been duly
authorized, legally and validly issued, willbe fully paid and non-assessable,
will have been duly deposited with a Custodian under and in accordance with
all applicable laws andregulations, and will constitute "Shares" within the
meaning of such term under the Deposit Agreement, and (c) the Deposit
Agreementwill not have been amended from the version appearing, or
incorporated by reference, in the Registration Statement and the ADRs will
conformto the form thereof attached to such version of the Deposit Agreement;
(iii) that the choice of New York law contained in the DepositAgreement is
legal and valid under the laws of the Cayman Islands, Hong Kong, and the
People's Republic of China, (iv) that insofaras any obligation under the
Deposit Agreement is to be performed in, or by a party organized under the
laws of, any jurisdiction outsideof the United States of America, its
performance will not be illegal or ineffective in any jurisdiction by virtue
of the law of that jurisdiction,(v) that the Registration Statement was
executed by all parties thereto in the manner required by the instructions to
Form F-6; (vi) thegenuineness and authenticity of all signatures, including
electronic signatures, on original documents and the legal capacity,
competencyand authority of all such signatories; (vii) that photocopy,
electronic, conformed, facsimile and other copies submitted to us of
originaldocuments conform to the original documents, and that all such
original documents were authentic and complete; (viii) that each partythereto
will comply with the Deposit Agreement; and (ix) that the rights and remedies
set forth in the Deposit Agreement will be exercisedreasonably and in good
faith.
Based upon and subject tothe foregoing, we are of the opinion that the ADSs
covered by the Registration Statement, when evidenced by ADRs that are duly
executedand delivered by the Depositary and issued in accordance with the
terms of the Deposit Agreement and the Registration Statement, willbe legally
issued and will entitle the registered holders thereof to the rights specified
in the Deposit Agreement and those ADRs.
The foregoing opinion is limitedto the internal laws of the State of New York
as in effect on the date of this letter, and we are expressing no opinion as
to the applicabilityof the laws of any other jurisdiction or the effect of any
such laws on the foregoing opinion.
This opinion letter dealsonly with the specified legal issues expressly
addressed herein, and you should not infer any opinion that is not explicitly
addressedherein from any matter stated in this letter.
Nothing contained herein orin any document referred to herein is intended by
this firm to be used, and the addressee hereof cannot use anything contained
hereinor in any document referred to herein, as "tax advice" (within the
meaning given to such term by the U.S. Internal RevenueService ("IRS") in IRS
Circular 230 and any related interpretative advice issued by the IRS in
respect of IRS Circular 230prior to the date hereof, and hereinafter used
within such meaning and interpretative advice). Without admitting that
anything containedherein or in any document referred to herein constitutes
"tax advice" for any purpose, notice is hereby given that, to theextent
anything contained herein or in any document referred to herein constitutes,
or is or may be interpreted by any court, by the IRSor by any other
administrative body to constitute, "tax advice," such "tax advice" is not
intended or writtento be used, and cannot be used, for the purpose of (i)
avoiding penalties under the U.S. Internal Revenue Code, or (ii) promoting,marke
ting or recommending to any party any transaction or matter addressed herein.
We hereby consent to the useof this opinion as Exhibit d of the above-mentioned
Registration Statement. In giving such consent, we do not admit thereby that
we arewithin the category of persons whose consent is required under Section 7
of the Securities Act of 1933, as amended and the rules and regulationsthereunde
r. This opinion may not otherwise be disclosed to or relied upon by anyone
else or used for any other purpose or quoted or referredto or made public in
any way without our express prior written consent. This opinion is rendered to
you as of the date hereof and we assumeno obligation to advise you or any
other person hereafter with regard to any change after the date hereof in the
circumstances or thelaw that may bear on the matters set forth herein even
though the change may affect the legal analysis or a legal conclusion or
othermatters in this opinion letter.
Very truly yours,
/s/ Ziegler, Ziegler & Associates LLP
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