View:
As
filed with the U.S. Securities and Exchange Commission on November ,
2007
Registration
No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________
FORM
F-6
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
For
American Depositary Shares Evidenced by American Depositary
Receipts
___________________
XINYUAN
REAL ESTATE CO., LTD.
(Exact
name of issuer of deposited securities as specified in its
charter)
N/A
(Translation
of issuer's name into English)
Cayman
Islands
(Jurisdiction
of incorporation or organization of issuer)
JPMORGAN
CHASE BANK, N.A.
(Exact
name of depositary as specified in its charter)
4
New York Plaza, New York, NY 10004
Telephone
(212) 623-0636
(Address,
including zip code, and telephone number, including area code, of depositary's
principal executive offices)
____________________
CT
Corporation System
111
Eighth Avenue
New
York, New York 10011
(212)
664-1666
(Address,
including zip code, and telephone number, including area code, of agent for
service)
Copies
to:
|
Scott
A. Ziegler, Esq.
|
Scott
Clemens, Esq.
|
|
Ziegler,
Ziegler & Associates LLP
570
Lexington Avenue, 44th
Floor
New
York, New York 10022
(212)
319-7600
|
Baker
& McKenzie LLP
Suite
3401, China World Tower 2,
China
World Trade Center, 1Jianguomenwai
Dajie,
Beijing, 100004, PRC
|
It
is
proposed that this filing become effective under Rule 466
o
on
(Date) at
(Time)
If
a
separate registration statement has been filed to register the deposited shares,
check the following box. x
|
CALCULATION
OF REGISTRATION FEE
|
||||
|
Title
of each class of
Securities
to be registered
|
Amount
to
be registered
|
Proposed
maximum aggregate price per unit (1)
|
Proposed
maximum
aggregate
offering price (2)
|
Amount
of
registration
fee
|
|
American
Depositary Shares evidenced by American Depositary Receipts, each
American
Depositary Share representing one common share of Xinyuan
Real Estate Co., Ltd.
|
100,000,000
American
Depositary Shares
|
$0.05
|
$5,000,000
|
$153.50
|
|
(1)
|
Each
unit represents one American Depositary
Share.
|
|
(2)
|
Estimated
solely for the purpose of calculating the registration fee. Pursuant
to
Rule 457(k), such estimate is computed on the basis of the maximum
aggregate fees or charges to be imposed in connection with the issuance
of
American Depositary Receipts evidencing American Depositary
Shares.
|
The
Registrant hereby amends this Registration Statement on such date or dates
as
may be necessary to delay its effective date until the Registrant shall file
a
further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
PART
I
INFORMATION
REQUIRED IN PROSPECTUS
The
Prospectus consists of the proposed form of American Depositary Receipt (“ADR”
or “American Depositary Receipt”) included as Exhibit A to the Deposit Agreement
filed as Exhibit (a) to this Registration Statement, which is incorporated
herein by reference.
CROSS
REFERENCE SHEET
Item
1. DESCRIPTION OF SECURITIES TO BE REGISTERED
|
Item
Number and Caption
|
Location
in Form of American Depositary
Receipt
Filed Herewith as Prospectus
|
|
|
(1)
Name
and address of Depositary
|
Introductory
paragraph
|
|
|
(2)
Title
of American Depositary Receipts and identity of deposited
securities
|
Face
of American Depositary Receipt, top center
|
|
|
Terms
of Deposit:
|
||
|
(i)
Amount
of deposited securities represented by one unit of American Depositary
Shares
|
Face
of American Depositary Receipt, upper right corner
|
|
|
(ii)
Procedure
for voting, if any, the deposited securities
|
Paragraph
(12)
|
|
|
(iii)
Collection
and distribution of dividends
|
Paragraphs
(4), (5), (7) and (10)
|
|
|
(iv)
Transmission
of notices, reports and proxy soliciting material
|
Paragraphs
(3), (8) and (12)
|
|
|
(v)
Sale
or exercise of rights
|
Paragraphs
(4), (5) and (10)
|
|
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(vi)
Deposit
or sale of securities resulting from dividends, splits or plans of
reorganization
|
Paragraphs
(4), (5), (10) and (13)
|
|
|
(vii)
Amendment,
extension or termination of the Deposit Agreement
|
Paragraphs
(16) and (17)
|
|
|
(viii)
Rights
of holders of receipts to inspect the transfer books of the Depositary
and
the list of Holders of receipts
|
Paragraph
(3)
|
|
|
(ix)
Restrictions
upon the right to deposit or withdraw the underlying
securities
|
Paragraphs
(1), (2), (4), and (5)
|
|
|
(x)
Limitation
upon the liability of the Depositary
|
Paragraph
(14)
|
|
|
(3)
Fees
and Charges
|
Paragraph
(7)
|
2
Item
2. AVAILABLE INFORMATION
|
Item
Number and Caption
|
Location
in Form of American Depositary
Receipt
Filed Herewith as Prospectus
|
|
|
(b)
Statement
that Xinyuan
Real Estate Co., Ltd.
is
subject to the periodic reporting requirements of the Securities
Exchange
Act of 1934, as amended, and, accordingly, files certain reports
with the
Commission, and that such reports can be inspected by holders of
American
Depositary Receipts and copied at public reference facilities maintained
by the Commission in Washington, D.C.
|
Paragraph
(8)
|
3
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
3. EXHIBITS
| (a) |
Form
of Deposit Agreement.
Form
of Deposit Agreement dated as
of
, 2007 among Xinyuan
Real Estate Co., Ltd.,
JPMorgan Chase Bank, N.A., as depositary (the "Depositary"), and
all
holders from time to time of ADRs issued thereunder (the "Deposit
Agreement"),
including the Form of American Depositary Receipt, is filed herewith
as
Exhibit (a).
|
| (b) |
Any
other agreement to which the Depositary is a party relating to the
issuance of the American Depositary Shares registered hereunder or
the
custody of the deposited securities represented
thereby.
Not Applicable.
|
| (c) |
Every
material contract relating to the deposited securities between the
Depositary and the issuer of the deposited securities in effect at
any
time within the last three years.
Not Applicable.
|
| (d) |
Opinion
of 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) |
Power
of Attorney.
Included as part of the signature pages
hereto.
|
Item
4. UNDERTAKINGS
|
(a)
|
The
Depositary hereby undertakes to make available at the principal office
of
the Depositary in the United States, for inspection by holders of
the
American Depositary Receipts, any reports and communications received
from
the issuer of the deposited securities which are both (1) received by
the Depositary as the holder of the deposited securities, and
(2) made generally available to the holders of the underlying
securities by the issuer.
|
|
(b)
|
If
the amounts of fees charged are not disclosed in the prospectus,
the
Depositary undertakes to prepare a separate document stating the
amount of
any fee charged and describing the service for which it is charged
and to
deliver promptly a copy of such fee schedule without charge to anyone
upon
request. The Depositary undertakes to notify each registered holder
of an
American Depositary Receipt thirty days before any change in the
fee
schedule.
|
4
SIGNATURE
Pursuant
to the requirements of the Securities Act of 1933, as amended, JPMorgan Chase
Bank, N.A. , on behalf of the legal entity created by the Deposit Agreement,
certifies that it has reasonable grounds to believe that all the requirements
for filing on Form F-6 are met and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in The City of New York, State of New York, on November 20,
2007.
|
Legal
entity created by the form of Deposit Agreement for the issuance
of ADRs
evidencing American Depositary Shares
|
||
| By: |
JPMORGAN
CHASE BANK, N.A., as
Depositary
|
|
| By: | /s/Melinda L. VanLuit | |
|
Name: Melinda L. VanLuit |
||
| Title: Vice President | ||
5
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, Xinyuan
Real Estate Co., Ltd.
certifies that it has reasonable grounds to believe that all the requirements
for filing on Form F-6 are met and has duly caused this Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
the
People's Republic of China on November 20, 2007.
| XINYUAN REAL ESTATE CO., LTD. | ||
| |
|
|
| By: | /s/Yong Zhang | |
|
Name: Yong Zhang |
||
| Title: Chairman and Chief Executive Officer | ||
POWER
OF ATTORNEY
KNOW
ALL
PERSONS
BY THESE
PRESENTS, that each person
whose
signature appears below
does
hereby constitute and appoint Yong Zhang and Longgen Zhang
and each
of them singly, as
his
or her
true and lawful attorneys-in-fact and agents, each with full power of
substitution and resubstitution, for him or
her
and in his
or
her
name,
place and stead, in any and all capacities, to sign any and all amendments
(including post-effective amendments) to this Registration Statement and sign
any registration statement for the same offering covered by this Registration
Statement that is to be effective upon filing pursuant to Rule 462(b)
promulgated under the U.S. Securities Act of 1933, and all post effective
amendments thereto and to file the same, with all exhibits thereto
and
other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in connection therewith and about the premises, as fully
to
all intents and purposes as he or
she
might
or could
do in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or their or his substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
6
Pursuant
to the requirements of the Securities Act of 1933, as amended, this Registration
Statement has been signed by the following persons in the capacities and on
the
dates indicated:
| Signatures | Title |
Date
|
||
| /s/Yong Zhang | Chairman and Chief Executive Officer |
November
20, 2007
|
||
| Name: Yong Zhang | (Principal Executive Officer) | |||
| /s/Yuyan Yang | Director |
November
20, 2007
|
||
| Name: Yuyan Yang | ||||
| /s/Longgen Zhang | Director and Chief Financial Officer |
November
20, 2007
|
||
| Name: Longgen Zhang |
Principal Financial Officer and
Principal Accounting Officer)
|
|||
| /s/Yue (Justin) Tang | Director |
November
20, 2007
|
||
| Name: Yue (Justin) Tang | ||||
| /s/Christopher J. Fiegen | Director |
November
20, 2007
|
||
| Name: Christopher J. Fiegen | ||||
| /s/Yong Cui | Director |
November
20, 2007
|
||
| Name: Yong Cui |
7
SIGNATURE
OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant
to the Securities Act, the undersigned, the duly authorized representative
in
the United States of the Registrant, has signed this Registration Statement
or
amendment thereto in Newark, Delaware, on November 20, 2007.
| PUGLISI & ASSOCIATES | ||
| |
|
|
| /s/Donald J. Puglisi | ||
|
Name: Donald J. Puglisi
Title: Managing Director
|
||
8
INDEX
TO EXHIBITS
|
Exhibit
Number
|
||
|
(a)
|
Form
of Deposit Agreement (including the Form of ADR), among Xinyuan
Real Estate Co., Ltd., JPMorgan Chase Bank, N.A., as depositary,
and the
holders from time to time of American Depositary Receipts issued
thereunder.
|
|
|
(d)
|
Opinion
of Ziegler, Ziegler & Associates LLP, counsel to the Depositary, as to
the legality of the securities to be
registered.
|
9
XINYUAN
REAL ESTATE CO., LTD.
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Deposit
Agreement
Dated
as
of [DATE] , 2007
TABLE
OF CONTENTS
| Page | ||||
|
PARTIES
|
1
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|||
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RECITALS
|
1
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|||
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Section
1. Certain Definitions
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||||
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(a)
ADR Register
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1
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(b)
ADRs; Direct Registration ADRs
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1
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(c)
ADS
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1
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|||
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(d)
Custodian
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1
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|||
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(e)
Deliver, execute, issue et al.
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1
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|||
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(f)
Delivery Order
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1
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|||
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(g)
Deposited Securities
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1
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|||
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(h)
Direct Registration System
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1
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|||
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(i)
Holder
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2
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|||
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(j)
Securities Act of 1933
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2
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|||
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(k)
Securities Exchange Act of 1934
|
2
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|||
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(l)
Shares
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2
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|||
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(m)
Transfer Office
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2
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(n)
Withdrawal Order
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2
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|||
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Section
2. ADRs
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2
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|||
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Section
3. Deposit of Shares
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3
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|||
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Section
4. Issue of ADRs
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3
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|||
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Section
5. Distributions on Deposited Securities
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3
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|||
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Section
6. Withdrawal of Deposited Securities
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3
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Section
7. Substitution of ADRs
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4
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Section
8. Cancellation and Destruction of ADRs; Records
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4
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Section
9. The Custodian
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4
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Section
10 Co-Registrars and Co-Transfer Agents
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5
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Section
11. Lists of Holders.
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5
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Section
12. Depositary's Agents
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5
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Section
13. Successor Depositary
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5
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Section
14. Reports
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6
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Section
15. Additional Shares
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6
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Section
16. Indemnification
|
6
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|||
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Section
17. Notices
|
7
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|||
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Section
18. Miscellaneous
|
7
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|||
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Section
19. Consent to Jurisdiction
|
8
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|||
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TESTIMONIUM
|
8
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|||
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SIGNATURES
|
9
|
-
i -
| Page | ||||
|
EXHIBIT
A
|
||||
|
FORM
OF FACE OF ADR
|
A-1
|
|||
|
Introductory
Paragraph
|
A-1
|
|||
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(1)
Issuance of ADRs
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A-2
|
|||
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(2)
Withdrawal of Deposited Securities
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A-2
|
|||
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(3)
Transfers of ADRs
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A-2
|
|||
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(4)
Certain Limitations
|
A-3
|
|||
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(5)
Taxes
|
A-4
|
|||
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(6)
Disclosure of Interests
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A-4
|
|||
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(7)
Charges of Depositary
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A-5
|
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(8)
Available Information
|
A-6
|
|||
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(9)
Execution
|
A-6
|
|||
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Signature
of Depositary
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A-6
|
|||
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Address
of Depositary's Office
|
A-6
|
|||
|
|
||||
|
FORM
OF REVERSE OF ADR
|
A-7
|
|||
|
(10)
Distributions on Deposited Securities
|
A-7
|
|||
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(11)
Record Dates
|
A-7
|
|||
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(12)
Voting of Deposited Securities
|
A-8
|
|||
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(13)
Changes Affecting Deposited Securities
|
A-8
|
|||
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(14)
Exoneration
|
A-9
|
|||
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(15)
Resignation and Removal of Depositary; the Custodian
|
A-10
|
|||
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(16)
Amendment
|
A-10
|
|||
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(17)
Termination
|
A-10
|
|||
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(18)
Appointment
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A-11
|
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-
ii -
DEPOSIT
AGREEMENT dated as of [DATE] , 2007 (the "Deposit Agreement") among XINYUAN
REAL ESTATE CO., LTD. and its successors (the "Company"), JPMORGAN CHASE
BANK, N.A., as depositary hereunder (the "Depositary"), and all holders from
time to time
of
American Depositary Receipts issued hereunder ("ADRs") evidencing American
Depositary
Shares ("ADSs") representing deposited Shares (defined below). The Company
hereby
appoints the Depositary as depositary for the Deposited Securities and hereby
authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. All
capitalized terms used herein have the meanings ascribed to them in Section
1 or
elsewhere in this
Deposit Agreement. The parties hereto agree as follows:
1.
Certain
Definitions.
(a) "ADR
Register"
is
defined in paragraph (3) of the form of ADR.
(b) "ADRs"
mean
the American Depositary Receipts executed and delivered hereunder.
ADRs may be either in physical certificated form or Direct Registration ADRs.
ADRs in
physical certificated form, and the terms and conditions governing the Direct
Registration ADRs
(as
hereinafter defined), shall be substantially in the form of Exhibit A annexed
hereto (the "form
of ADR").
The
term "Direct
Registration ADR"
means
an ADR, the ownership of which is recorded
on the Direct Registration System. References to "ADRs" shall include
certificated ADRs
and
Direct Registration ADRs, unless the context otherwise requires. The form of
ADR
is hereby
incorporated herein and made a part hereof; the provisions of the form of ADR
shall be binding
upon the parties hereto.
(c) Subject
to paragraph (13) of the form of ADR, each "ADS"
evidenced by an ADR represents
the right to receive one Share and a pro rata share in any other Deposited
Securities.
(d) "Custodian"means
the agent or agents of the Depositary (singly or collectively, as the
context requires) and any additional or substitute Custodian appointed pursuant
to Section 9.
(e)
The
terms
"deliver",
"execute",
"issue",
"register",
"surrender",
"transfer"
or
"cancel",
when
used with respect to Direct Registration ADRs, shall refer to an entry or
entries or an
electronic transfer or transfers in the Direct Registration System, and, when
used with respect to
ADRs
in physical certificated form, shall refer to the physical delivery, execution,
issuance, registration,
surrender, transfer or cancellation of certificates representing the
ADRs.
(f) "Delivery
Order"
is
defined in Section 3.
(g) "Deposited
Securities"
as of
any time means all Shares at such time deposited under
this Deposit Agreement and any and all other Shares, securities, property and
cash at such time
held
by the Depositary or the Custodian in respect or in lieu of such deposited
Shares and other
Shares, securities, property and cash.
(h)
"Direct
Registration System"
means
the system for the uncertificated registration of
ownership of securities established by The Depository Trust Company ("DTC")
and
utilized by the Depositary pursuant to which the Depositary may record the
ownership of ADRs without the issuance
of a certificate, which ownership shall be evidenced by periodic statements
issued by the Depositary
to the Holders entitled thereto. For purposes hereof, the Direct Registration
System shall
include access to the Profile Modification System maintained by DTC which
provides for automated
transfer of ownership between DTC and the Depositary.
(I) "Holder"
means
the person or persons in whose name an ADR is registered on the ADR
Register.
(j) "Securities
Act of 1933"
means
the United States Securities Act of 1933, as from time
to
time amended.
(k) "Securities
Exchange Act of 1934"
means
the United States Securities Exchange Act
of
1934, as from time to time amended.
(l) "Shares"mean
the
common shares of the Company, and shall include the rights to receive
Shares specified in paragraph (1) of the form of ADR.
(m) "Transfer
Office"
is
defined in paragraph (3) of the form of ADR.
(n) "Withdrawal
Order"
is
defined in Section 6.
2.
ADRs.
(a)
ADRs in certificated form shall be engraved, printed or otherwise reproduced
at the discretion of the Depositary in accordance with its customary practices
in its American
depositary receipt business, or at the request of the Company typewritten and
photocopied
on plain or safety paper, and shall be substantially in the form set forth
in
the form of ADR,
with
such changes as may be required by the Depositary or the Company to comply
with
their
obligations hereunder, any applicable law, regulation or usage or to indicate
any special limitations
or restrictions to which any particular ADRs are subject. ADRs may be issued
in
denominations
of any number of ADSs. ADRs in certificated form shall be executed by the
Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary. ADRs
in
certificated form bearing the facsimile signature of anyone who was at the
time
of execution
a duly authorized officer of the Depositary shall bind the Depositary,
notwithstanding that
such
officer has ceased to hold such office prior to the delivery of such
ADRs.
(b)
Direct
Registration ADRs.
Notwithstanding anything in this Deposit Agreement or in the
form
of ADR to the contrary, ADSs shall be evidenced by Direct Registration ADRs,
unless certificated
ADRs are specifically requested by the Holder.
(c)
Holders shall be bound by the terms and conditions of this Deposit Agreement
and
of the
form
of ADR, regardless of whether their ADRs are Direct Registration ADRs or
certificated ADRs.
2
3.
Deposit
of Shares.
In
connection with the deposit of Shares hereunder, the Depositary or
the
Custodian may require the following in form satisfactory to it: (a) a written
order directing the
Depositary to issue to, or upon the written order of, the person or persons
designated in such order
a
Direct Registration ADR or ADRs evidencing the number of ADSs representing
such
deposited
Shares (a "Delivery Order"); (b) proper endorsements or duly executed
instruments of transfer
in respect of such deposited Shares; (c) instruments assigning to the
Depositary, the Custodian
or a nominee of either any distribution on or in respect of such deposited
Shares or indemnity
therefor; and (d) proxies entitling the Custodian to vote such deposited Shares.
As soon
as
practicable after the Custodian receives Deposited Securities pursuant to any
such deposit or
pursuant to paragraph (10) or (13) of the form of ADR, the Custodian shall
present such Deposited
Securities for registration of transfer into the name of the Depositary, the
Custodian or a
nominee
of either, to the extent such registration is practicable, at the cost and
expense of the person
making such deposit (or for whose benefit such deposit is made) and shall obtain
evidence satisfactory
to it of such registration. Deposited Securities shall be held by the Custodian
for the account
and to the order of the Depositary at such place or places and in such manner
as
the Depositary
shall determine. Deposited Securities may be delivered by the Custodian to
any
person
only under the circumstances expressly contemplated in this Deposit Agreement.
To the extent
that the provisions of or governing the Shares make delivery of certificates
therefor impracticable,
Shares may be deposited hereunder by such delivery thereof as the Depositary
or
the
Custodian may reasonably accept, including, without limitation, by causing
them
to be credited
to an account maintained by the Custodian for such purpose with the Company
or
an accredited
intermediary, such as a bank, acting as a registrar for the Shares, together
with delivery of
the
documents, payments and Delivery Order referred to herein to the Custodian
or
the Depositary.
4.
Issue
of ADRs.
After
any such deposit of Shares, the Custodian shall notify the Depositary
of such deposit and of the information contained in any related Delivery Order
by letter,
first class airmail postage prepaid, or, at the request, risk and expense of
the
person making the
deposit, by cable, telex or facsimile transmission. After receiving such notice
from the Custodian,
the Depositary, subject to this Deposit Agreement, shall properly issue at
the
Transfer Office,
to or upon the order of any person named in such notice, an ADR or ADRs
registered as requested
and evidencing the aggregate ADSs to which such person is entitled.
5.
Distributions
on Deposited Securities.
To the
extent that the Depositary determines in its
reasonable discretion that any distribution pursuant to paragraph (10) of the
form of ADR is not
practicable with respect to any Holder, the Depositary may make such
distribution as it so deems
reasonably practicable, including the distribution of foreign currency,
securities or property (or
appropriate documents evidencing the right to receive foreign currency,
securities or property) or
the
retention thereof as Deposited Securities with respect to such Holder's ADRs
(without liability
for interest thereon or the investment thereof).
6.
Withdrawal
of Deposited Securities.
In
connection with any surrender of an ADR for withdrawal
of the Deposited Securities represented by the ADSs evidenced thereby, the
Depositary
may require proper endorsement in blank of such ADR (or duly executed
instruments of transfer thereof in blank) and the Holder's written order
directing the Depositary to cause the Deposited
Securities represented by the ADSs evidenced by such ADR to be withdrawn and
delivered
to, or upon the written order of, any person designated in such order (a
"Withdrawal Order").
Directions from the Depositary to the Custodian to deliver Deposited Securities
shall be given
by
letter, first class airmail postage prepaid, or, at the request, risk and
expense of the Holder,
by cable, telex or facsimile transmission. Delivery of Deposited Securities
may
be made by
the
delivery of certificates (which, if required by law shall be properly endorsed
or accompanied
by properly executed instruments of transfer or, if such certificates may be
registered,
registered in the name of such Holder or as ordered by such Holder in any
Withdrawal Order)
or
by such other means as the Depositary may deem practicable, including, without
limitation,
by transfer of record ownership thereof to an account designated in the
Withdrawal Order
maintained either by the Company or an accredited intermediary, such as a bank,
acting as a registrar
for the Deposited Securities.
3
7.
Substitution
of ADRs.
The
Depositary shall execute and deliver a new Direct Registration
ADR in exchange and substitution for any mutilated certificated ADR upon
cancellation
thereof or in lieu of and in substitution for such destroyed, lost or stolen
certificated ADR,
unless the Depositary has notice that such ADR has been acquired by a bona
fide
purchaser, upon
the
Holder thereof filing with the Depositary a request for such execution and
delivery and a sufficient
indemnity bond and satisfying any other reasonable requirements imposed by
the
Depositary.
8.
Cancellation
and Destruction of ADRs; Records.
All
ADRs surrendered to the Depositary
shall be cancelled by the Depositary. The Depositary is authorized to destroy
ADRs in certificated
form so cancelled in accordance with its customary practices.
The
Depositary agrees to maintain or cause its agents to maintain records of all
ADRs surrendered
and Deposited Securities withdrawn under Section 6 hereof and paragraph (2)
of
the form
of
ADR, substitute ADRs delivered under Section 7 hereof, and canceled or destroyed
ADRs under
this Section 8, in keeping with the procedures ordinarily followed by stock
transfer agents located
in the City of New York or as required by the laws or regulations governing
the
Depositary.
9.
The
Custodian.
Any
Custodian in acting hereunder shall be subject to the directions of the
Depositary and shall be responsible solely to it. The Depositary shall be
responsible for the compliance
by the Custodian with any applicable provisions of the Deposit Agreement. The
Depositary
may from time to time appoint one or more agents to act for it as Custodian
hereunder. Each
Custodian so appointed (other than JPMorgan Chase Bank, N.A.) shall give written
notice to the
Company and the Depositary accepting such appointment and agreeing to be bound
by the applicable
terms hereof. Any Custodian may resign from its duties hereunder by at least
30
days prior
written notice to the Depositary. The Depositary may discharge any Custodian
at
any time upon
notice to the Custodian being discharged. Any Custodian ceasing to act hereunder
as Custodian
shall deliver, upon the instruction of the Depositary, all Deposited Securities
held by it to
a
Custodian continuing to act. If upon the effectiveness of such resignation
there
would be no
Custodian acting hereunder, the Depositary shall, promptly after receiving
such
notice, appoint a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder.
4
10.
Co-Registrars
and Co-Transfer Agents.
The
Depositary may appoint and remove (i) co-registrars
to register ADRs and transfers, combinations and split-ups of ADRs and to
countersign
ADRs in accordance with the terms of any such appointment and (ii) co-transfer
agents
for the purpose of effecting transfers, combinations and split-ups of ADRs
at
designated transfer
offices in addition to the Transfer Office on behalf of the Depositary. Each
co-registrar or co-transfer
agent (other than JPMorgan Chase Bank, N.A.) shall give notice in writing to
the
Company
and the Depositary accepting such appointment and agreeing to be bound by the
applicable
terms of this Deposit Agreement.
11.
Lists
of Holders.
The
Company shall have the right to inspect transfer records of the Depositary
and its agents and the ADR Register, take copies thereof and require the
Depositary and
its
agents to supply copies of such portions of such records as the Company may
request. The Depositary
or its agent shall furnish to the Company promptly upon the written request
of
the Company,
a list of the names, addresses and holdings of ADSs by all Holders as of a
date
within seven
days of the Depositary's receipt of such request.
12.
Depositary's
Agents.
The
Depositary may perform its obligations under this Deposit Agreement
through any agent appointed by it, provided that the Depositary shall notify
the
Company
of such appointment and shall remain responsible for the performance of such
obligations
as if no agent were appointed.
13.
Successor
Depositary.
The
Depositary may at any time resign as Depositary hereunder
by written notice of its election so to do delivered to the Company, such
resignation to take
effect upon the appointment of a successor depositary and its acceptance of
such
appointment as
hereinafter provided. The Depositary may at any time be removed by the Company
by providing
no less than 60 days prior written notice of such removal to the Depositary,
such removal
to take effect the later of (I) the 60th
day
after such notice of removal is first provided and (ii)
the
appointment of a successor depositary and its acceptance of such appointment
as
hereinafter
provided. Notwithstanding the foregoing, if upon the resignation or removal
of
the Depositary
a successor depositary is not appointed within the applicable 45-day period
(in
the case of
resignation) or 60-day period (in the case of removal) as specified in paragraph
(17) of the form of
ADR,
then the Depositary may elect to terminate this Deposit Agreement and the ADR
and the provisions
of said paragraph (17) shall thereafter govern the Depositary’s
obligations hereunder. In
case
at any time the Depositary acting hereunder shall resign or be removed, the
Company shall use
its
best efforts to appoint a successor depositary, which shall be a bank or trust
company having
an
office in the Borough of Manhattan, The City of New York. Every successor
depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its
appointment hereunder, and thereupon such successor depositary, without any
further act or deed,
shall become fully vested with all the rights, powers, duties and obligations
of
its predecessor.
The predecessor depositary, only upon payment of all sums due to it and on
the
written
request of the Company, shall (I) execute and deliver an instrument transferring
to such successor
all rights and powers of such predecessor hereunder (other than its rights
to
indemnification
and fees owing, each of which shall survive any such removal and/or
resignation), (ii) duly
assign, transfer and deliver all right, title and interest to the Deposited
Securities to such successor,
and (iii) deliver to such successor a list of the Holders of all outstanding
ADRs. Any such successor depositary shall promptly mail notice of its
appointment to such Holders. Any bank
or
trust company into or with which the Depositary may be merged or consolidated,
or to which
the
Depositary shall transfer substantially all its American depositary receipt
business, shall be
the
successor of the Depositary without the execution or filing of any document
or
any further act.
5
14.
Reports.
On or
before the first date on which the Company makes any communication
available to holders of Deposited Securities or any securities regulatory
authority or
stock
exchange, by publication or otherwise, the Company shall transmit to the
Depositary a copy
thereof in English or with an English translation or summary. The Company has
delivered to
the
Depositary, the Custodian and any Transfer Office, a copy of all provisions
of
or governing the
Shares and any other Deposited Securities issued by the Company or any affiliate
of the Company
and, promptly upon any change thereto, the Company shall deliver to the
Depositary, the
Custodian and any Transfer Office, a copy (in English or with an English
translation) of such provisions
as so changed. The Depositary and its agents may rely upon the Company's
delivery thereof
for all purposes of this Deposit Agreement.
15.
Additional
Shares.
Neither
the Company nor any company controlling, controlled by or
under
common control with the Company shall issue additional Shares, rights to
subscribe for Shares,
securities convertible into or exchangeable for Shares or rights to subscribe
for any such securities
or shall deposit any Shares under this Deposit Agreement, except under
circumstances complying
in all respects with the Securities Act of 1933. The Depositary will use
reasonable efforts
to comply with written instructions of the Company not to accept for deposit
hereunder any Shares
identified in such instructions at such times and under such circumstances
as
may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with securities
laws in the United States.
16.
Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary
and its agents against any loss, liability or expense (including reasonable
fees
and expenses
of counsel) which may arise out of acts performed or omitted, in connection
with
the provisions
of this Deposit Agreement and of the ADRs, as the same may be amended, modified
or supplemented
from time to time in accordance herewith (i) by either the Depositary or its
agents or
their
respective directors, employees, agents and affiliates, except, subject to
the
penultimate paragraph
of this Section 16, for any liability or expense directly arising out of the
negligence or bad
faith
of the Depositary or its agents acting in their capacities as such hereunder,
or
(ii) by the Company
or any of its directors, employees, agents or affiliates.
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense
which may arise out of any misstatement or alleged misstatement or omission
or
alleged omission
in any registration statement, proxy statement, prospectus (or placement
memorandum), or
preliminary prospectus (or preliminary placement memorandum) relating to the
offer or sale of ADSs,
except to the extent any such liability or expense arises out of (i) information
relating to the
Depositary or its agents (other than the Company), as applicable, furnished
in
writing by the Depositary
and not changed or altered by the Company expressly for use in any of the
foregoing documents
or (ii) if such information is provided, the failure to state a material fact
necessary to make
the
information provided not misleading.
6
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend
and save harmless the Company against any loss, liability or expense (including
reasonable fees
and
expenses of counsel) incurred by the Company in respect of this Deposit
Agreement to the
extent such loss, liability or expense is due to the negligence or bad faith
of
the Depositary or its
agents acting in their capacities as such hereunder.
Notwithstanding
any other provision of this Deposit Agreement or the ADRs (including
the
form
of ADR) to the contrary, neither the Company nor the Depositary, nor any of
their agents,
shall be liable to the other for any indirect, special, punitive or
consequential damages (collectively
"Special Damages") except (i) to the extent such Special Damages arise from
the
gross
negligence or willful misconduct of the party from whom indemnification is
sought or (ii) to the
extent Special Damages arise from or out of a claim brought by a third party
(including, without
limitation, Holders) against the Depositary or its agents, except to the extent
such Special Damages
arise out of the gross negligence or willful misconduct of the party seeking
indemnification
hereunder
The
obligations set forth in this Section 16 shall survive the termination of this
Deposit Agreement
and the succession or substitution of any indemnified person.
17.
Notices.
Notice
to any Holder shall be deemed given when first mailed, first class postage
prepaid, to the address of such Holder on the ADR Register or received by such
Holder. Notice
to
the Depositary or the Company shall be deemed given when first received by
it at
the address
or facsimile transmission number set forth in (a) or (b), respectively, or
at
such other address
or facsimile transmission number as either may specify to the other by written
notice:
|
(a)
|
JPMorgan
Chase Bank, N.A.
Four
New York Plaza
New
York, New York 10004
Attention:
ADR Administration
Fax:
(212) 623-0079
|
| (b) |
Xinyuan Real Estate Co., Ltd.
No. 18 Xinyuan Road
Zhengzhou,
Henan 450011
People's
Republic of China
Attention:
Chief Financial Officer
Fax:
(86) 371-6565-1686
|
18.
Miscellaneous.
This
Deposit Agreement is for the exclusive benefit of the Company, the
Depositary, the Holders, and their respective successors hereunder, and shall
not give any legal or
equitable right, remedy or claim whatsoever to any other person. The Holders
and
owners of ADRs
from
time to time shall be parties to this Deposit Agreement and shall be bound
by
all of the
provisions hereof. If any such provision is invalid, illegal or unenforceable
in
any respect, the remaining
provisions shall in no way be affected thereby. This Deposit Agreement may
be
executed
in any number of counterparts, each of which shall be deemed an original and
all
of which shall constitute one instrument.
7
19.
Consent
to Jurisdiction.
The
Company irrevocably agrees that any legal suit, action or proceeding
against the Company brought by the Depositary or any Holder, arising out of
or
based upon
this
Deposit Agreement or the transactions contemplated hereby, may be instituted
in
any state
or
federal court in New York, New York, and irrevocably waives any objection which
it may now
or
hereafter have to the laying of venue of any such proceeding, and irrevocably
submits to the
non-exclusive jurisdiction of such courts in any such suit, action or
proceeding. The Company also
irrevocably agrees that any legal suit, action or proceeding against the
Depositary brought by the
Company, arising out of or based upon this Deposit Agreement or the transactions
contemplated
hereby, may only be instituted in a state or federal court in New York, New
York. The
Company has appointed CT Corporation System, 111 Eighth Avenue, 13th Floor,
New
York, New
York
10011, as its authorized agent (the "Authorized Agent") upon which process
may
be served
in
any such action arising out of or based on this Deposit Agreement or the
transactions contemplated
hereby which may be instituted in any state or federal court in New York, New
York
by
the Depositary or any Holder, and to the fullest extent permitted by law, waives
any other requirements
of or objections to personal jurisdiction with respect thereto. The Company
represents
and warrants that the Authorized Agent has agreed to act as said agent for
service of process,
and the Company agrees to take any and all action, including the filing of
any
and all documents
and instruments, that may be necessary to continue such appointment in full
force and effect
as
aforesaid. Service of process upon the Authorized Agent and written notice
of
such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company.
If, for any reason, the Authorized Agent named above or its successor shall
no
longer serve
as
agent of the Company to receive service of process in New York, the Company
shall promptly
appoint a successor acceptable to the Depositary, so as to serve and will
promptly advise the
Depositary thereof. In the event the Company fails to continue such designation
and appointment
in full force and effect, the Company hereby waives personal service of process
upon it
and
consents that any such service of process may be made by certified or registered
mail, return receipt
requested, directed to the Company at its address last specified for notices
hereunder, and service
so made shall be deemed completed five (5) days after the same shall have been
so mailed. Notwithstanding
the foregoing, any action based on this Agreement may be instituted by the
Depositary
or any Holder in any competent court in the Cayman Islands or People's Republic
of China.
To
the
extent that the Company or any of its properties, assets or revenues may have
or
may
hereafter be entitled to, or have attributed to it, any right of immunity,
on
the grounds of sovereignty
or otherwise, from any legal action, suit or proceeding, from the giving of
any
relief in any
respect thereof, from setoff or counterclaim, from the jurisdiction of any
court, from service of
process, from attachment upon or prior to judgment, from attachment in aid
of
execution or judgment,
or from execution of judgment, or other legal process or proceeding for the
giving of any
relief or for the enforcement of any judgment, in any jurisdiction in which
proceedings may at any
time
be commenced, with respect to its obligations, liabilities or other matter
under
or arising out
of or
in connection with the Shares or Deposited Securities, the ADSs, the ADRs or
this Agreement,
the Company, to the fullest extent permitted by law, hereby irrevocably and
unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to
such
relief
and enforcement.
8
IN
WITNESS WHEREOF, XINYUAN REAL ESTATE CO., LTD. and JPMORGAN
CHASE BANK, N.A. have duly executed this Deposit Agreement as of the day and
year
first above set forth and all holders of ADRs shall become parties hereto upon
acceptance by them
of
ADRs issued in accordance with the terms hereof.
XINYUAN
REAL ESTATE CO., LTD.
By:
__________________________
Name:
Title:
JPMORGAN
CHASE BANK, N.A.
By:
__________________________
Name:
Title:
Vice President
9
EXHIBIT
A
ANNEXED
TO AND INCORPORATED IN
DEPOSIT
AGREEMENT
[FORM
OF
FACE OF ADR]
|
____
Number
|
No. of ADSs: |
|
_________
Each
ADS represents
One
Share
CUSIP:
|
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
COMMON
SHARES
of
XINYUAN
REAL ESTATE CO., LTD.
(Incorporated
under the laws of the Cayman Islands)
JPMORGAN
CHASE BANK, N.A., a national banking association organized under
the
laws of the United States of America , as depositary hereunder (the
"Depositary"), hereby
certifies that
is the
registered owner (a "Holder") of
American
Depositary Shares
("ADSs"), each (subject to paragraph (13)) representing one common share
(including the rights
to
receive Shares described in paragraph (1), "Shares" and, together with any
other
securities,
cash or property from time to time held by the Depositary in respect or in
lieu
of deposited
Shares, the "Deposited Securities"), of Xinyuan Real Estate Co., Ltd., a
corporation organized
under the laws of the Cayman Islands (the "Company"), deposited under the
Deposit Agreement
dated as of [DATE] , 2007 (as amended from time to time, the "Deposit
Agreement") among
the
Company, the Depositary and all Holders from time to time of American Depositary
Receipts
issued thereunder ("ADRs"), each of whom by accepting an ADR becomes a party
thereto.
The Deposit Agreement and this ADR (which includes the provisions set forth
on
the reverse
hereof) shall be governed by and construed in accordance with the laws of the
State of New
York.
A-1
(1)
Issuance
of ADRs.
This
ADR is one of the ADRs issued under the Deposit Agreement.
Subject to paragraph (4), the Depositary may so issue ADRs for delivery at
the
Transfer
Office (defined in paragraph (3)) only against deposit with the Custodian of:
(a) Shares in
form
reasonably satisfactory to the Custodian; (b) rights to receive Shares from
the
Company or any
registrar, transfer agent, clearing agent or other entity recording Share
ownership or transactions;
or, (c) other rights to receive Shares (until such Shares are actually deposited
pursuant
to (a) or (b) above, "Pre-released ADRs") only if (i) Pre-released ADRs are
fully collateralized
(marked to market daily) with cash, government securities or such other
collateral as
the
Depositary deems appropriate held by the Depositary for the benefit of Holders
(but such collateral
shall not constitute "Deposited Securities"), (ii) each recipient of
Pre-released ADRs represents
and agrees in writing with the Depositary that such recipient or its customer
(a) beneficially
owns such Shares, (b) assigns all beneficial right, title and interest therein
to the Depositary,
(c) holds such Shares for the account of the Depositary and (d) will deliver
such Shares
to
the Custodian as soon as practicable and promptly upon demand therefor, (iii)
all Pre-released
ADRs evidence not more than 30% of all ADSs (excluding those evidenced by
Pre-released
ADRs) and (iv) Pre-released ADRs are terminable on not more than five (5)
business days
notice, provided,
however,
that
the Depositary reserves the right to change or disregard such limit
from time to time as it deems appropriate. The Depositary may retain for its
own
account any
earnings on collateral for Pre-released ADRs and its charges for issuance
thereof. At the request,
risk and expense of the person depositing Shares, the Depositary may accept
deposits for forwarding
to the Custodian and may deliver ADRs at a place other than its office. Every
person depositing
Shares under the Deposit Agreement represents and warrants that such Shares
are
validly
issued and outstanding, fully paid, nonassessable and free of pre-emptive
rights, that the person
making such deposit is duly authorized so to do and that such Shares (A) are
not
"restricted securities"
as such term is defined in Rule 144 under the Securities Act of 1933 unless
at
the time of
deposit they may be freely transferred in accordance with Rule 144(k) and may
otherwise be offered
and sold freely in the United States or (B) have been registered under the
Securities Act of 1933.
Such representations and warranties shall survive the deposit of Shares and
issuance of ADRs.
The
Depositary will not knowingly accept for deposit under the Deposit Agreement
any
Shares
required to be registered under the Securities Act of 1933 and not so
registered; the Depositary
may refuse to accept for such deposit any Shares identified by the Company
in
order to facilitate
the Company's compliance with such Act.
(2)
Withdrawal
of Deposited Securities.
Subject
to paragraphs (4) and (5), upon surrender of
(i) a
certificated ADR in form satisfactory to the Depositary at the Transfer Office
or (ii) proper instructions
and documentation in the case of a Direct Registration ADR, the Holder hereof
is
entitled
to delivery at, or to the extent in dematerialized form from, the Custodian's
office of the Deposited
Securities at the time represented by the ADSs evidenced by this ADR. At the
request, risk
and
expense of the Holder hereof, the Depositary may deliver such Deposited
Securities at such
other place as may have been requested by the Holder. Notwithstanding any other
provision of
the
Deposit Agreement or this ADR, the withdrawal of Deposited Securities may be
restricted only
for
the reasons set forth in General Instruction I.A.(1) of Form F-6 (as such
instructions may be
amended from time to time) under the Securities Act of 1933.
(3)
Transfers
of ADRs.
The
Depositary or its agent will keep, at a designated transfer office
(the "Transfer Office"), (a) a register (the "ADR Register") for the
registration, registration of transfer, combination and split-up of ADRs, and,
in the case of Direct Registration ADRs, shall include
the Direct Registration System, which at all reasonable times will be open
for
inspection by
Holders and the Company for the purpose of communicating with Holders in the
interest of the business
of the Company or a matter relating to the Deposit Agreement and (b) facilities
for the delivery
and receipt of ADRs. The term ADR Register includes the Direct Registration
System. Title
to
this ADR (and to the Deposited Securities represented by the ADSs evidenced
hereby), when
properly endorsed (in the case of ADRs in certificated form) or upon delivery
to
the Depositary
of proper instruments of transfer, is transferable by delivery with the same
effect as in the
case
of negotiable instruments under the laws of the State of New York; provided
that the
Depositary,
notwithstanding any notice to the contrary, may treat the person in whose name
this ADR
is
registered on the ADR Register as the absolute owner hereof for all purposes
and
neither the
Depositary nor the Company will have any obligation or be subject to any
liability under the Deposit
Agreement to any holder of an ADR, unless such holder is the Holder thereof.
Subject to paragraphs
(4) and (5), this ADR is transferable on the ADR Register and may be split
into
other ADRs
or
combined with other ADRs into one ADR, evidencing the aggregate number of ADSs
surrendered
for split-up or combination, by the Holder hereof or by duly authorized attorney
upon surrender
of this ADR at the Transfer Office properly endorsed (in the case of ADRs in
certificated
form) or upon delivery to the Depositary of proper instruments of transfer
and
duly stamped
as may be required by applicable law; provided
that the
Depositary may close the ADR Register
at any time or from time to time when deemed expedient by it or requested by
the
Company.
At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated
ADR with a Direct Registration ADR, or vice versa, execute and deliver a
certificated ADR
or a
Direct Registration ADR, as the case may be, for any authorized number of ADSs
requested,
evidencing the same aggregate number of ADSs as those evidenced by the
certificated ADR
or
Direct Registration ADR, as the case may be, substituted.
A-2
(4)
Certain
Limitations.
Prior
to the issue, registration, registration of transfer, split-up or combination
of any ADR, the delivery of any distribution in respect thereof, or, subject
to
the last sentence
of paragraph (2), the withdrawal of any Deposited Securities, and from time
to
time in the
case
of clause (b)(ii) of this paragraph (4), the Company, the Depositary or the
Custodian may require:
(a) payment with respect thereto of (i) any stock transfer or other tax or
other
governmental
charge, (ii) any stock transfer or registration fees in effect for the
registration of transfers
of Shares or other Deposited Securities upon any applicable register and (iii)
any applicable
charges as provided in paragraph (7) of this ADR; (b) the production of proof
satisfactory
to it of (i) the identity of any signatory and genuineness of any signature
and
(ii) such other
information, including without limitation, information as to citizenship,
residence, exchange control
approval, beneficial ownership of any securities, compliance with applicable
law, regulations,
provisions of or governing Deposited Securities and terms of the Deposit
Agreement and
this
ADR, as it may deem necessary or proper; and (c) compliance with such
regulations as the
Depositary may establish consistent with the Deposit Agreement. The issuance
of
ADRs, the acceptance
of deposits of Shares, the registration, registration of transfer, split-up
or
combination of
ADRs
or, subject to the last sentence of paragraph (2), the withdrawal of Deposited
Securities may
be
suspended, generally or in particular instances, when the ADR Register or any
register for Deposited
Securities is closed or when any such action is deemed advisable by the
Depositary.
A-3
(5)
Taxes.
If any
tax or other governmental charge shall become payable by or on behalf
of
the
Custodian or the Depositary with respect to this ADR, any Deposited Securities
represented by
the
ADSs evidenced hereby or any distribution thereon, such tax or other
governmental charge shall
be
paid by the Holder hereof to the Depositary. The Depositary may refuse to effect
any registration,
registration of transfer, split-up or combination hereof or, subject to the
last
sentence of
paragraph (2), any withdrawal of such Deposited Securities until such payment
is
made. The Depositary
may also deduct from any distributions on or in respect of Deposited Securities,
or may
sell
by public or private sale for the account of the Holder hereof any part or
all
of such Deposited
Securities (after attempting by reasonable means to notify the Holder hereof
prior to such
sale), and may apply such deduction or the proceeds of any such sale in payment
of such tax or
other
governmental charge, the Holder hereof remaining liable for any deficiency,
and
shall reduce
the number of ADSs evidenced hereby to reflect any such sales of Shares. In
connection with
any
distribution to Holders, the Company will remit to the appropriate governmental
authority
or agency all amounts (if any) required to be withheld and owing to such
authority or agency
by
the Company; and the Depositary and the Custodian will remit to the appropriate
governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority
or agency by the Depositary or the Custodian. If the Depositary determines
that
any distribution
in property other than cash (including Shares or rights) on Deposited Securities
is subject
to any tax that the Depositary or the Custodian is obligated to withhold, the
Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary
deems necessary and practicable to pay such taxes, by public or private sale,
and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after
deduction of such taxes to the Holders entitled thereto. Each Holder of an
ADR
or an interest
therein agrees to indemnify the Depositary, the Company, the Custodian and
any
of their respective
directors, employees, agents and affiliates against, and hold each of them
harmless from,
any
claims by any governmental authority with respect to taxes, additions to tax,
penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit
obtained.
(6)
Disclosure
of Interests.
To the
extent that the provisions of or governing any Deposited
Securities may require disclosure of or impose limits on beneficial or other
ownership of
Deposited Securities, other Shares and other securities and may provide for
blocking transfer, voting
or
other rights to enforce such disclosure or limits, Holders and all persons
holding ADRs agree
to
comply with all such disclosure requirements and ownership limitations and
to
comply with
any
reasonable Company instructions in respect thereof. The Company reserves the
right to instruct
Holders to deliver their ADSs for cancellation and withdrawal of the Deposited
Securities so
as to
permit the Company to deal directly with the Holder thereof as a holder of
Shares and Holders
agree to comply with such instructions. The Depositary agrees to cooperate
with
the Company
in its efforts to inform Holders of the Company's exercise of its rights under
this paragraph
and agrees to consult with, and provide reasonable assistance without risk,
liability or expense
on the part of the Depositary, to the Company on the manner or manners in which
it may enforce
such rights with respect to any Holder. The Depositary agrees to forward, upon
the request
and at the expenses of the Company, any written request for beneficial ownership
information
from the Company to the Holders, and at the Company's expense, to promptly
forward to the Company any responses received by the Depositary.
A-4
(7)
Charges
of Depositary.
The
Depositary may collect from (I) each person to whom ADSs
are
issued, including, without limitation, issuances against deposits of
Shares, issuances in respect
of Share Distributions, Rights and Other Distributions (as such terms are
defined in paragraph
(10)), issuances pursuant to a stock dividend or stock split declared by
the Company, or issuances
pursuant to a merger, exchange of securities or any other transaction or
event affecting the
ADSs
or the Deposited Securities, and (ii) each person surrendering ADSs for
withdrawal of Deposited
Securities or whose ADSs are cancelled or reduced for any other reason,
U.S.$5.00 for each
100
ADSs (or portion thereof) issued, delivered, reduced, cancelled or
surrendered (as the case
may
be). The Depositary may sell (by public or private sale) sufficient securities
and property received
in respect of Share Distributions, Rights and Other Distributions prior to
such
deposit to pay
such
charge. The following additional charges shall be incurred by the Holders,
by
any party depositing
or withdrawing Shares or by any party surrendering ADSs, to whom ADSs are issued
(including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company
or an exchange of stock regarding the ADSs or the Deposited Securities or a
distribution
of ADSs pursuant to paragraph (10)), whichever is applicable (I) a fee of
U.S.$0.02 or less
per
ADS (or portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement,
(ii) to the extent not prohibited by the rules of the primary stock exchange
upon which the
ADSs
are listed, a fee of U.S.$1.50 per ADR or ADRs for transfers made pursuant
to
paragraph
(3) hereof, (iii) a fee for the distribution or sale of securities pursuant
to
paragraph (10) hereof,
such fee being in an amount equal to the fee for the execution and delivery
of
ADSs referred
to above which would have been charged as a result of the deposit of such
securities (for purposes
of this paragraph (7) treating all such securities as if they were Shares)
but
which securities
or the net cash proceeds from the sale thereof are instead distributed by the
Depositary to
Holders entitled thereto, (iv)
an
aggregate fee of up to U.S.$0.05 per ADS (or portion thereof) per
calendar year for services performed by the Depositary in administering the
ADRs
(which fee may
be
charged on a periodic basis during each calendar year and shall be assessed
against Holders
as of the record date or record dates set by the Depositary during each calendar
year and shall
be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such
charge from one or more cash dividends or other cash distributions), and (v)
such fees and expenses
as are incurred by the Depositary (including without limitation expenses
incurred on behalf
of
Holders in connection with compliance with foreign exchange control regulations
or any law
or
regulation relating to foreign investment) in delivery of Deposited Securities
or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation.
The Company will pay all other charges and expenses of the Depositary and any
agent of
the
Depositary (except the Custodian) pursuant to agreements from time to time
between the Company
and the Depositary, except (I) stock transfer or other taxes and other
governmental charges
(which are payable by Holders or persons depositing Shares), (ii) cable, telex
and facsimile
transmission and delivery charges incurred at the request of persons depositing,
or Holders
delivering Shares, ADRs or Deposited Securities (which are payable by such
persons or Holders),
(iii) transfer or registration fees for the registration or transfer of
Deposited Securities on any
applicable register in connection with the deposit or withdrawal of Deposited
Securities (which
are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there
are
no such fees in respect of the Shares as of the date of the Deposit Agreement),
(iv) expenses
of the Depositary in connection with the conversion of foreign currency into
U.S. dollars (which
are paid out of such foreign currency), and (v) any other charge payable by
any
of the Depositary, any of the Depositary’s
agents,
including, without limitation, the Custodian, or the agents
of
the Depositary’s agents in connection with the servicing of the Shares or other
Deposited
Securities (which charge shall be assessed against Holders as of the record
date
or dates set
by
the Depositary and shall be payable at the sole discretion of the Depositary
by
billing such Holders
or by deducting such charge from one or more cash dividends or other cash
distributions). Such
charges may at any time and from time to time be changed by agreement between
the Company
and the Depositary.
A-5
(8)
Available
Information.
The
Deposit Agreement, the provisions of or governing Deposited
Securities and any written communications from the Company, which are both
received by
the
Custodian or its nominee as a holder of Deposited Securities and made generally
available to
the
holders of Deposited Securities, are available for inspection by Holders at
the
offices of the Depositary
and the Custodian and at the Transfer Office. The Depositary will distribute
copies of such
communications (or English translations or summaries thereof) to Holders when
furnished by
the
Company. The Company is subject to the periodic reporting requirements of the
Securities Exchange
Act of 1934 and accordingly files certain reports with the United States
Securities and Exchange
Commission (the "Commission"). Such reports and other information may be
inspected
and copied at public reference facilities maintained by the Commission located
at the date
hereof at 100 F Street, NE, Washington, DC 20549.
(9)
Execution.
This
ADR shall not be valid for any purpose unless executed by the Depositary
by the manual or facsimile signature of a duly authorized officer of the
Depositary.
Dated:
JPMORGAN
CHASE BANK, N.A., as Depositary
By
____________________________
Authorized
Officer
The
Depositary's office is located at 4 New York Plaza, New York, New York
10004.
A-6
[FORM
OF
REVERSE OF ADR]
(10)
Distributions
on Deposited Securities.
Subject
to paragraphs (4) and (5), to the extent
practicable, the Depositary will distribute to each Holder entitled thereto
on
the record date set
by
the Depositary therefor at such Holder's address shown on the ADR Register,
in
proportion to
the
number of Deposited Securities (on which the following distributions on
Deposited Securities
are received by the Custodian) represented by ADSs evidenced by such Holder's
ADRs: (a)
Cash.
Any
U.S. dollars available to the Depositary resulting from a cash dividend or
other
cash
distribution or the net proceeds of sales of any other distribution or portion
thereof authorized
in this paragraph (10) ("Cash"), on an averaged or other practicable basis,
subject to (i) appropriate
adjustments for taxes withheld, (ii) such distribution being impermissible
or
impracticable
with respect to certain Holders, and (iii) deduction of the Depositary's
expenses in (1)
converting any foreign currency to U.S. dollars by sale or in such other manner
as the Depositary
may determine to the extent that it determines that such conversion may be
made
on a reasonable
basis, (2) transferring foreign currency or U.S. dollars to the United States
by
such means
as
the Depositary may determine to the extent that it determines that such transfer
may be made
on a
reasonable basis, (3) obtaining any approval or license of any governmental
authority required
for such conversion or transfer, which is obtainable at a reasonable cost and
within a reasonable
time and (4) making any sale by public or private means in any commercially
reasonable
manner. (b) Shares.
(i)
Additional ADRs evidencing whole ADSs representing any Shares
available to the Depositary resulting from a dividend or free distribution
on
Deposited Securities
consisting of Shares (a "Share Distribution") and (ii) U.S. dollars available
to
it resulting
from the net proceeds of sales of Shares received in a Share Distribution,
which
Shares would
give rise to fractional ADSs if additional ADRs were issued therefor, as in
the
case of Cash.
(c)
Rights.
(i)
Warrants or other instruments in the discretion of the Depositary representing
rights
to
acquire additional ADRs in respect of any rights to subscribe for additional
Shares or rights
of
any nature available to the Depositary as a result of a distribution on
Deposited Securities ("Rights"),
to the extent that the Company timely furnishes to the Depositary evidence
satisfactory to
the
Depositary that the Depositary may lawfully distribute the same (the Company
has
no obligation
to so furnish such evidence), or (ii) to the extent the Company does not so
furnish such evidence
and sales of Rights are practicable, any U.S. dollars available to the
Depositary from the net
proceeds of sales of Rights as in the case of Cash, or (iii) to the extent
the
Company does not so
furnish such evidence and such sales cannot practicably be accomplished by
reason of the nontransferability
of the Rights, limited markets therefor, their short duration or otherwise,
nothing
(and any Rights may lapse). (d) Other
Distributions.
(i)
Securities or property available to
the
Depositary resulting from any distribution on Deposited Securities other than
Cash, Share Distributions
and Rights ("Other Distributions"), by any means that the Depositary may deem
equitable
and practicable, or (ii) to the extent the Depositary deems distribution of
such
securities or
property not to be equitable and practicable, any U.S. dollars available to
the
Depositary from the
net
proceeds of sales of Other Distributions as in the case of Cash. Such U.S.
dollars available will
be
distributed by checks drawn on a bank in the United States for whole dollars
and
cents. Fractional
cents will be withheld without liability and dealt with by the Depositary in
accordance with
its
then current practices.
(11)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable,
fix a record date (which, to the extent applicable, shall be as near as
practicable to any corresponding
record date set by the Company) for the determination of the Holders who shall
be responsible for the fee assessed by the Depositary for administration of
the
ADR program and for any
expenses provided for in paragraph (7) hereof as well as for the determination
of the Holders who
shall
be entitled to receive any distribution on or in respect of Deposited
Securities, to give instructions
for the exercise of any voting rights, to receive any notice or to act in
respect of other matters
and only such Holders shall be so entitled or obligated.
A-7
(12)
Voting
of Deposited Securities.
As soon
as practicable after receipt from the Company
of notice of any meeting or solicitation of consents or proxies of holders
of
Shares or other
Deposited Securities, the Depositary shall distribute to Holders a notice
stating (a) such information
as is contained in such notice and any solicitation materials, (b) that each
Holder on the
record date set by the Depositary therefor will, subject to any applicable
provisions of Cayman Island
law, be entitled to instruct the Depositary as to the exercise of the voting
rights, if any, pertaining
to the Deposited Securities represented by the ADSs evidenced by such Holder's
ADRs and
(c)
the manner in which such instructions may be given, including instructions
to
give a discretionary
proxy to a person designated by the Company. Upon receipt of instructions of
a
Holder
on
such record date in the manner and on or before the date established by the
Depositary for
such
purpose, the Depositary shall endeavor insofar as practicable and permitted
under the provisions
of or governing Deposited Securities to vote or cause to be voted the Deposited
Securities
represented by the ADSs evidenced by such Holder's ADRs in accordance with
such
instructions.
The Depositary will not itself exercise any voting discretion in respect of
any
Deposited
Securities. There is no guarantee that Holders generally or any Holder in
particular will receive
the notice described above with sufficient time to enable such Holder to return
any voting instructions
to the Depositary in a timely manner.
To
the
extent voting instruction cards are not so received by the Depositary from
any
Holder,
the Depositary shall deem such Holder to have so instructed the Depositary
to
give a discretionary
proxy to a person designated by the Company and the Depositary shall endeavor
insofar
as practicable and permitted under the provisions of or governing Deposited
Securities to give
a
discretionary proxy to a person designated by the Company to vote the Deposited
Securities represented
by the ADSs evidenced by such Holder's ADRs as to which such instructions are
so
given,
provided that no such instruction shall be deemed given and no discretionary
proxy shall be given
(I)
with respect to any matter as to which the Company informs the Depositary (and
the Company
agrees to provide such information promptly in writing when and if applicable)
that (x) the
Company does not wish such proxy given, (y) substantial opposition exists or
(z)
materially affects
the rights of holders of Shares and (ii) unless, with respect to such meeting,
the Depositary has
been
provided with an opinion of counsel to the Company, in form and substance
satisfactory to
the
Depositary, to the effect that (a) the granting of such discretionary proxy
does
not subject the
Depositary to any reporting obligations in the Cayman Islands, (b) the granting
of such proxy will
not
result in a violation of Cayman Island law, rule, regulation or permit, (c)
the
voting arrangement
and deemed instruction as contemplated herein will be given effect under Cayman
Island
law, and (d) the granting of such discretionary proxy will not result in the
Shares represented
by the ADSs being considered assets of the Depositary under Cayman Island
law.
(13)
Changes
Affecting Deposited Securities.
Subject
to paragraphs (4) and (5), the Depositary
may, in its discretion, amend this ADR or distribute additional or amended
ADRs
(with
or
without calling this ADR for exchange) or cash, securities or property on the
record date set
by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited Securities,
any Share Distribution or Other Distribution
not distributed to Holders or any cash, securities or property available to
the
Depositary
in respect of Deposited Securities from (and the Depositary is hereby authorized
to surrender
any Deposited Securities to any person and, irrespective of whether such
Deposited Securities
are surrendered or otherwise cancelled by operation of law, rule, regulation
or
otherwise,
to sell by public or private sale any property received in connection with)
any
recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy
or
sale
of
all or substantially all the assets of the Company, and to the extent the
Depositary does not so
amend
this ADR or make a distribution to Holders to reflect any of the foregoing,
or
the net proceeds
thereof, whatever cash, securities or property results from any of the foregoing
shall constitute
Deposited Securities and each ADS evidenced by this ADR shall automatically
represent
its pro rata interest in the Deposited Securities as then
constituted.
A-8
(14)
Exoneration.
The
Depositary, the Company, their agents and each of them shall: (a) incur
no
liability (I) if any present or future law, rule or regulation of the United
States, the Cayman
Islands, The People's Republic of China (including the Hong Kong Special
Administrative
Region, the People's Republic of China) or any other country, or of any
governmental
or regulatory authority or any securities exchange or market or automated
quotation system,
the provisions of or governing any Deposited Securities, any present or future
provision of the
Company's charter, any act of God, war, terrorism or other circumstance beyond
its control shall
prevent, delay or subject to any civil or criminal penalty
any act which the Deposit Agreement
or this ADR provides shall be done or performed by
it or
them (including, without limitation,
voting pursuant to paragraph (12) hereof), or (ii) by reason of any exercise
or
failure to exercise
any discretion given it in the Deposit Agreement or this ADR; (b) assume no
liability except
to
perform its obligations to the extent they are specifically set forth in this
ADR and the Deposit
Agreement without gross negligence or bad faith; (c) in the case of the
Depositary and its agents,
be under no obligation to appear in, prosecute or defend any action, suit or
other proceeding
in respect of any Deposited Securities or this ADR; (d) in the case of the
Company and
its
agents hereunder be under no obligation to appear in, prosecute or defend any
action, suit or
other
proceeding in respect of any Deposited Securities or this ADR, which in its
opinion may involve
it in expense or liability, unless indemnity satisfactory to it against all
expense (including fees
and
disbursements of counsel) and liability be furnished as often as may be
required; or (e) not
be
liable for any action or inaction by it in reliance upon the advice of or
information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder,
or
any other person
believed by it to be competent to give such advice or information. The
Depositary, its agents
and the Company may rely and shall be protected in acting upon any written
notice, request,
direction or other document believed by them to be genuine and to have been
signed or presented
by the proper party or parties. The Depositary and its agents will not be
responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
for the manner in which
any
such vote is cast or for the effect of any such vote. The Depositary and its
agents may own
and
deal in any class of securities of the Company and its affiliates and in ADRs.
Notwithstanding
anything to the contrary set forth in the Deposit Agreement or an ADR, the
Depositary
and its agents may fully respond to any and all demands or requests for
information maintained
by or on its behalf in connection with the Deposit Agreement, any Holder or
Holders, any
ADR
or ADRs or otherwise related hereto to the extent such information is requested
or required
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations,
administrative or judicial process, banking, securities or other regulators.
The
Company has agreed to indemnify the Depositary and its agents under certain
circumstances and the
Depositary has agreed to indemnify the Company under certain circumstances.
Neither the Company
nor the Depositary nor any of their respective agents shall be liable to Holders
or beneficial
owners of interests in ADSs for any indirect, special, punitive or consequential
damages.
No disclaimer of liability under the Securities Act of 1933 is intended by
any
provision hereof.
A-9
(15)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may resign as
Depositary by written notice of its election so to do delivered to the Company,
such resignation to
take
effect upon the appointment of a successor depositary and its acceptance of
such appointment
as provided in the Deposit Agreement. The Depositary may at any time be
removed by
the
Company by no less than 60 days prior written notice of such removal, to become
effective upon
the
later of (I) the 60th day after delivery of the notice to the Depositary and
(ii) the appointment
of a successor depositary and its acceptance of such appointment as provided
in
the Deposit
Agreement. The Depositary may appoint substitute or additional Custodians and
the term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(16)
Amendment.
Subject
to the last sentence of paragraph (2), the ADRs and the Deposit Agreement
may be amended by the Company and the Depositary, provided
that any
amendment that
imposes or increases any fees or charges (other than stock transfer or other
taxes and other governmental
charges, transfer or registration fees, cable, telex or facsimile transmission
costs, delivery
costs or other such expenses), or that shall otherwise prejudice any substantial
existing right
of
Holders, shall become effective 30 days after notice of such amendment shall
have been given
to
the Holders. Every Holder of an ADR at the time any amendment to the Deposit
Agreement
so becomes effective shall be deemed, by continuing to hold such ADR, to consent
and
agree
to such amendment and to be bound by the Deposit Agreement as amended thereby.
In no
event
shall any amendment impair the right of the Holder of any ADR to surrender
such
ADR and
receive the Deposited Securities represented thereby, except in order to comply
with mandatory
provisions of applicable law. Any amendments or supplements which (I) are
reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be
registered on Form F-6 under the Securities Act of 1933 or (b) the ADSs or
Shares to be traded solely
in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or
charges to be borne by Holders, shall be deemed not to prejudice any substantial
rights of Holders.
Notwithstanding the foregoing, if any governmental body or regulatory body
should adopt
new
laws, rules or regulations which would require amendment or supplement of the
Deposit
Agreement or the form of ADR to ensure compliance therewith, the Company and
the
Depositary
may amend or supplement the Deposit Agreement and the ADR at any time in
accordance
with such changed laws, rules or regulations. Such amendment or supplement
to
the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment
or supplement is given to Holders or within any other period of time as required
for compliance.
(17)
Termination.
The
Depositary may, and shall at the written direction of the Company, terminate
the Deposit Agreement and this ADR by mailing notice of such termination to
the
Holders
at least 30 days prior to the date fixed in such notice for such termination;
provided, however,
if the Depositary shall have (I) resigned as Depositary hereunder, notice of
such termination
by the Depositary shall not be provided to Holders unless a successor depositary
shall not be operating hereunder within 45 days of the date of such resignation,
and (ii) been removed as
Depositary hereunder, notice of such termination by the Depositary shall not
be
provided to Holders
unless a successor depositary shall not be operating hereunder on the
60th
day
after the Company's
notice of removal was first provided to the Depositary. After the date so fixed
for termination,
the Depositary and its agents will perform no further acts under the Deposit
Agreement
and this ADR, except to receive and hold (or sell) distributions on Deposited
Securities
and deliver Deposited Securities being withdrawn. As soon as practicable after
the expiration
of six months from the date so fixed for termination, the Depositary shall
sell
the Deposited
Securities and shall thereafter (as long as it may lawfully do so) hold in
a
segregated account
the net proceeds of such sales, together with any other cash then held by it
under the Deposit
Agreement, without liability for interest, in trust for the pro rata
benefit
of the Holders of ADRs
not
theretofore surrendered. After making such sale, the Depositary shall be
discharged from
all
obligations in respect of the Deposit Agreement and this ADR, except to account
for such net
proceeds and other cash. After the date so fixed for termination, the Company
shall be discharged
from all obligations under the Deposit Agreement except for its obligations
to
the Depositary
and its agents.
A-10
(18)
Appointment.
Each
Holder and each person holding an interest in ADSs, upon acceptance
of any ADSs (or any interest therein) issued in accordance with the terms and
conditions
of the Deposit Agreement shall be deemed for all purposes to (a) be a party
to
and bound
by
the terms of the Deposit Agreement and the applicable ADR(s), and (b) appoint
the Depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and
to
take any and all
actions contemplated in the Deposit Agreement and the applicable ADR(s), to
adopt any and all
procedures necessary to comply with applicable law and to take such action
as
the Depositary in
its
sole discretion may deem necessary or appropriate to carry out the purposes
of
the Deposit Agreement
and the applicable ADR(s), the taking of such actions to be the conclusive
determinant of
the
necessity and appropriateness thereof.
A-11
Ziegler,
Ziegler & Associates LLP
Counselors
at Law
570
Lexington Avenue, 44th
Floor
New
York, New York 10022
(212)
319-7600
Telecopier
(212) 319-7605
November
20, 2007
JPMorgan
Chase Bank, N.A., as Depositary
4
New
York Plaza
New
York,
New York 10004
American
Depositary Shares
evidenced
by American Depositary Receipts
for
deposited common shares of
Xinyuan
Real Estate Co., Ltd.
Dear
Sirs:
Referring
to the Registration Statement on Form F-6 relating to the above-entitled
American Depositary Shares ("ADSs") evidenced by American Depositary Receipts
("ADRs") each ADS representing one common share of Xinyuan
Real Estate Co., Ltd.
(the
"Company"), a corporation incorporated under the laws of the Cayman Islands.
Capitalized terms used herein that are not herein defined shall have the
meanings assigned to them in the Deposit Agreement (the “Deposit Agreement”)
appearing, or incorporated by reference, in Exhibit (a) to the Registration
Statement.
In
rendering the opinions set forth herein, we have assumed that (i) the Deposit
Agreement will have been duly authorized, executed and delivered by the Company
and the Depositary and will constitute a valid and legally binding obligation
of
the Company enforceable against it in accordance with its terms, (ii) the
relevant Deposited Securities will have been duly deposited with a Custodian
under and in accordance with all applicable laws and regulations, (iii) that
the
choice of New York law contained in the Deposit Agreement is legal and valid
under the laws of the Cayman Islands and the People’s Republic of China and (iv)
that insofar as any obligation under the Deposit Agreement is to be performed
in, or by a party organized under the laws of, any jurisdiction outside of
the
United States of America, its performance will not be illegal or ineffective
in
any jurisdiction by virtue of the law of that jurisdiction.
We
are of
the opinion that the ADSs covered by the Registration Statement, when issued
in
accordance with the terms of the Deposit Agreement, will, when sold, be legally
issued and will entitle the holders thereof to the rights specified in the
Deposit Agreement and the ADRs.
The
foregoing opinion is limited to the Federal laws of the United States and the
laws of the State of New York, and we are expressing no opinion as to the effect
of the laws of any other jurisdiction.
We
hereby
consent to the use of this opinion as Exhibit d of the above-mentioned
Registration Statement. In giving such consent, we do not admit thereby that
we
are within the category of persons whose consent is required under Section
7 of
the Securities Act of 1933, as amended.
Very
truly yours,
/s/Ziegler,
Ziegler & Associates LLP