F-3ASR
As filed with the Securities and Exchange Commission on
July 7, 2010
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form F-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF
1933
CNINSURE INC.
(Exact name of registrant as
specified in its charter)
Not Applicable
(Translation of
Registrants name into English)
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Cayman Islands
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Not Applicable
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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22/F, Yinhai Building
No. 299 Yanjiang Zhong Road
Guangzhou, Guangdong 510110
Peoples Republic of China
Tel: +86 20
6122-2777
(Address and telephone number of
Registrants principal executive offices)
CT Corporation System
111 Eighth Avenue
New York, New York 10011
+1 212
664-1666
(Name, address and telephone
number of agent for service)
Copies to:
David T. Zhang, Esq.
Eugene Y. Lee, Esq.
Latham & Watkins
41st Floor, One Exchange Square
8 Connaught Place, Central
Hong Kong
+852
2912-2503
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans,
please check the following
box. o
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, please check the
following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same
offering. o
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering. o
If this Form is a registration statement pursuant to General
Instruction I.C. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act, check the
following
box. þ
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.C. filed
to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities
Act, check the following
box. o
CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Each Class of
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Amount to be
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Offering
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Aggregate
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Registration
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Securities to be Registered
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Registered(3)
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Price per
Unit(3)
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Offering
Price(3)
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Fee(3)
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Ordinary shares, par value $0.001 per ordinary
share(1)(2)
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(1)
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Includes (i) ordinary shares
initially offered and sold outside the United States that may be
resold from time to time in the United States either as part of
their distribution or within 40 days after the later of the
effective date of this registration statement and the date the
shares are first bona fide offered to the public and
(ii) ordinary shares that may be purchased by the
underwriters pursuant to an over-allotment option. These
ordinary shares are not being registered for the purposes of
sales outside of the United States.
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(2)
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American depositary shares issuable
upon deposit of the ordinary shares registered hereby have been
registered under a separate registration statement on
Form F-6
(Registration
No. 333-146765).
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(3)
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An indeterminate aggregate number
of securities is being registered as may from time to time be
sold at indeterminate prices. In accordance with
Rules 456(b) and 457(r), the Registrant is deferring
payment of all of the registration fee.
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PROSPECTUS
American
Depositary Shares
Each
Representing 20 Ordinary Shares
CNINSURE
INC.
We may offer and sell our ordinary shares in the form of ADSs
from time to time in one or more offerings. Each ADS represents
20 of our ordinary shares. In addition, this prospectus may be
used to offer securities for the account of persons other than
us. Our ADSs are listed on the Nasdaq Global Select Market under
the symbol CISG.
Each time we or any selling shareholder sells our ADSs, we will
provide a supplement to this prospectus that contains specific
information about the offering. The supplement may also add,
update or change information contained in this prospectus. You
should carefully read this prospectus and any supplement before
you invest in any of our securities.
Investing in our ADSs involves risks. See the Risk
Factors section contained in the applicable prospectus
supplement and in the documents we incorporate by reference in
this prospectus to read about factors you should consider before
investing in the ADSs.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the accuracy or completeness of this
prospectus. Any representation to the contrary is a criminal
offense.
We or any selling shareholder may offer the ADSs directly to
purchasers or through underwriters, dealers or agents to be
designated at a future date. See Plan of
Distribution. If any underwriters, dealers or agents are
involved in the sale of any of the ADSs, their names, and any
applicable purchase price, fee, commission or discount
arrangements between or among them, will be set forth, or will
be calculable from the information set forth, in the applicable
prospectus supplement.
The date of this prospectus is July 7, 2010.
ABOUT
THIS PROSPECTUS
You should read this prospectus and any prospectus supplement,
together with the additional information described under the
heading Where You Can Find More Information About Us
and Incorporation of Documents by Reference.
In this prospectus, unless otherwise indicated or unless the
context otherwise requires,
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we, us, our company,
our or CNinsure refer to CNinsure Inc.,
its predecessor entities and its subsidiaries;
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China or PRC refers to the Peoples
Republic of China, excluding Taiwan, Hong Kong and Macau;
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provinces of China refers to the 22 provinces, the
four municipalities directly administered by the central
government (Beijing, Shanghai, Tianjin and Chongqing) and the
five autonomous regions (Xinjiang, Tibet, Inner Mongolia,
Ningxia and Guangxi);
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shares or ordinary shares refers to our
ordinary shares, par value US$0.001 per share;
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ADSs refers to the American depositary shares, each
of which represents 20 of our ordinary shares;
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all references to RMB or Renminbi are to
the legal currency of China and all references to $,
dollars, US$ and
U.S. dollars are to the legal currency of the
United States; and
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all discrepancies in any table between the amounts identified as
total amounts and the sum of the amounts listed therein are due
to rounding.
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This prospectus is part of an automatic shelf
registration statement that we filed with the SEC as a
well-known seasoned issuer as defined in
Rule 405 under the Securities Act of 1933 using a
shelf registration process. By using a shelf
registration statement, we or any selling shareholder may sell
the ADSs from time to time and in one or more offerings. This
prospectus only provides you with a summary description of the
ADSs and our ordinary shares they represent. Each time we or any
selling shareholder sells the ADSs, we will provide a supplement
to this prospectus that contains specific information about the
specific terms of that offering. The supplement may also add,
update or change information contained in this prospectus. If
there is any inconsistency between the information in this
prospectus and any prospectus supplement, you should rely on the
prospectus supplement.
You should rely only on the information contained or
incorporated by reference in this prospectus and in any
prospectus supplement. Neither we nor any selling shareholder
has authorized any other person to provide you with different
information. If anyone provides you with different or
inconsistent information, you should not rely on it. We will not
make an offer to sell these securities in any jurisdiction where
the offer or sale is not permitted. You should assume that the
information appearing in this prospectus and the applicable
supplement to this prospectus is accurate as of the date on its
respective cover, and that any information incorporated by
reference is accurate only as of the date of the document
incorporated by reference, unless we indicate otherwise. Our
business, financial condition, results of operations and
prospects may have changed since those dates.
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WHERE YOU
CAN FIND MORE INFORMATION ABOUT US
We file reports and other information with the SEC. Information
we file with the SEC can be inspected and copied at the Public
Reference Room maintained by the SEC at 100 F Street,
N.E., Washington, D.C. 20549. You may also obtain copies of
this information by mail from the Public Reference Section of
the SEC at prescribed rates. Further information on the
operation of the SECs Public Reference Room in
Washington, D.C. can be obtained by calling the SEC at
1-800-SEC-0330.
The SEC also maintains a web site that contains reports, proxy
and information statements and other information about issuers,
such as us, who file electronically with the SEC. The address of
that site is
http://www.sec.gov.
Our website address is
http://www.cninsure.net.
The information contained in, or that can be accessed through,
our website, however, is not, and should not be deemed to be, a
part of this prospectus or any accompanying prospectus
supplement.
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INCORPORATION
OF DOCUMENTS BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with the SEC. This means that we can
disclose important information to you by referring you to those
documents. The information incorporated by reference is
considered to be a part of this prospectus and should be read
with the same care.
Any reports we file with the SEC after the date of this
prospectus and before the date that the offering of securities
by means of this prospectus is terminated will automatically
update and, where applicable, supersede any information
contained in this prospectus or incorporated by reference in
this prospectus. This means that you must look at all of the SEC
filings that we incorporate by reference to determine if any of
the statements in this prospectus or in any documents previously
incorporated by reference have been modified or superseded.
We incorporate by reference into this prospectus the following
documents:
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our annual report on
Form 20-F
for the fiscal year ended December 31, 2009 filed on
May 7, 2010;
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our current report on
Form 6-K
filed on May 25, 2010;
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the description of our securities contained in our registration
statement on
Form 8-A
(File
No. 001-33768),
filed with the SEC on October 25, 2007 pursuant to
Section 12(g) of the Exchange Act, including all amendments
and reports subsequently filed for the purpose of updating that
description; and
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all subsequent annual reports on
Form 20-F
and any amendment thereto and any report on
Form 6-K
that so indicates it is being incorporated by reference, that we
file with the SEC on or after the date hereof and until the
termination or completion of the offering by means of this
prospectus.
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Our annual report on
Form 20-F
for the fiscal year ended December 31, 2009 filed on
May 7, 2010 contains a description of our business and
audited consolidated financial statements with a report by our
independent registered accounting firm. These financial
statements are prepared in accordance with United States
generally accepted accounting principles.
We will provide at no cost to each person, including any
beneficial owner, to whom this prospectus is delivered, upon
oral or written request of such person, a copy of any or all of
the reports or documents that have been incorporated by
reference in this prospectus, but not delivered with the
prospectus. Requests for such copies should be directed to:
22/F, Yinhai Building
No. 299 Yanjiang Zhong Road
Guangzhou, Guangdong 510110
Peoples Republic of China
+86-20-6122-2777
Attention: Investor Relations Department
Exhibits to the filings will not be sent, however, unless those
exhibits have specifically been incorporated by reference into
this prospectus and any accompanying prospectus supplement.
These documents may also be accessed through our website at
http://www.cninsure.net
or as described under the heading Where You Can Find More
Information About Us above. The information contained in,
or that can be accessed through, our website is not a part of
this prospectus or any accompanying prospectus supplement.
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SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement and the
information incorporated herein and therein by reference may
contain forward-looking statements intended to
qualify for the safe harbor from liability
established by the U.S. Private Securities Litigation
Reform Act of 1995. These statements, which are not statements
of historical fact, may contain estimates, assumptions,
projections
and/or
expectations regarding future events, which may or may not
occur. You can identify these forward-looking statements by
terminology such as may, will,
expect, anticipate,
forecast, intend, plan,
predict, propose, potential,
continue, believe, estimate,
is/are likely to, or the negative of these terms,
and other similar expressions. We have based these
forward-looking statements largely on our current expectations
and projections about future events and financial trends that we
believe may affect our financial condition, results of
operations, business strategy and financial needs. We do not
guarantee that the transactions and events described in this
prospectus or in any prospectus supplement will happen as
described or at all. You should read this prospectus and any
accompanying prospectus supplement completely and with the
understanding that actual future results may be materially
different from what we expect.
Whether actual results will conform with our expectations and
predictions is subject to a number of risks and uncertainties,
many of which are beyond our control, and reflect future
business decisions subject to change. Some of the assumptions,
future results and levels of performance expressed or implied in
the forward-looking statements we make inevitably will not
materialize, and unanticipated events may occur that will affect
our results.
We would like to caution you not to place undue reliance on the
forward-looking statements we make, and you should read these
statements in conjunction with the risk factors set forth under
the heading Risk Factors in this prospectus for a
more complete discussion of the risks of an investment in our
securities. These risks are not exhaustive. We operate in an
emerging and evolving environment. New risk factors emerge from
time to time and it is impossible for our management to predict
all risk factors, nor can we assess the impact of all risk
factors on our business or the extent to which any factor, or
combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statement.
The forward-looking statements made in this prospectus and the
accompanying prospectus supplement relate only to events as of
the date on which the statements are made. We undertake no
obligation, beyond that required by law, to update any
forward-looking statement to reflect events or circumstances
after the date on which the statement is made, even though our
situation may change in the future.
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OUR
COMPANY
We are a leading independent insurance intermediary company
operating in China. With 48,693 sales professionals, 1,421
claims adjustors and 571 sales and service outlets operating in
23 out of 31 provinces as of April 15, 2010. Our
distribution and service network reaches some of Chinas
most economically developed regions and some of the most
affluent cities in China, such as Beijing, Shanghai, Guangzhou
and Shenzhen.
As an insurance intermediary company, we do not assume
underwriting risks. Instead, we distribute to customers in China
a wide variety of property, casualty and life insurance products
underwritten by domestic and foreign insurance companies
operating in China and provide insurance claims adjusting
services, such as damage assessment, survey, authentication and
loss estimation. We also provide certain value-added services,
such as
24-hour
emergency services in select cities and assistance with claim
settlement, to our customers individuals and
institutions that purchase insurance products through us. In
addition, we provide information about potential customers to
insurance companies, which then sell insurance products to them,
either directly or through our affiliated insurance
intermediaries. Furthermore, in November 2009, we started to
offer certain consumer financial products and services through a
consumer credit brokerage company in which we hold
noncontrolling interests. We are compensated for our services
primarily by commissions and fees paid by insurance companies,
typically based on a percentage of the premium paid by the
insured or a percentage of the amount recovered from insurance
companies. Commission and fee rates generally depend on the type
of insurance products, the particular insurance company and the
region in which the insurance products are sold.
As of April 15, 2010, we had 56 affiliated insurance
intermediary companies in the PRC, of which 49 are insurance
agencies, three are insurance brokerages and four are insurance
adjusting firms. According to the Insurance Intermediary Market
Development Report for 2009 published by the China Insurance
Regulatory Commission, our affiliates included:
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eight of Chinas top 20 insurance agencies, accounting for
approximately 11.5% of total insurance agency revenue in China
in 2009; and
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three of Chinas top 20 insurance claims adjusting firms,
accounting for approximately 13.2% of total claims adjusting
firm revenue in China in 2009.
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The professional insurance intermediary sector in China is at an
early stage of development and highly fragmented. We believe
this offers substantial opportunities for further growth and
consolidation. We intend to take advantage of these
opportunities to increase our market share by aggressively
expanding our distribution network through selective
acquisitions, recruitment of experienced and entrepreneurial
sales agents and franchising. In particular, we intend to devote
significant resources to distributing life insurance products in
order to benefit from the recurring fee income they generate and
to better capture the significant opportunities presented by
Chinas rapidly growing life insurance market. We will also
continue to grow our claims adjusting business to capture the
substantial growth in this sector. We have developed and refined
our unified operating platform through more than ten years of
operations and have successfully implemented it across our
company. We believe our scalable unified operating platform has
been key in our ability to expand our distribution network and
launch new products and services rapidly and efficiently while
maintaining the quality of our products and services.
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RISK
FACTORS
Please see the factors set forth under the heading
Item 3. Key Information D. Risk
Factors in our most recently filed annual report on
Form 20-F,
which is incorporated in this prospectus by reference, as
updated by our subsequent filings under the Securities Exchange
Act of 1934, and, if applicable, in any accompanying prospectus
supplement before investing in any securities that may be
offered pursuant to this prospectus.
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USE OF
PROCEEDS
We intend to use the net proceeds from the sale of the ADSs as
set forth in the applicable prospectus supplement. We will not
receive any of the proceeds from the sale of the ADSs by any
selling shareholder.
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ENFORCEABILITY
OF CIVIL LIABILITIES
We are incorporated in the Cayman Islands in order to take
advantage of certain benefits associated with being a Cayman
Islands exempted company, such as:
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political and economic stability;
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an effective judicial system;
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a favorable tax system;
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the absence of exchange control or currency
restrictions; and
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the availability of professional and support services.
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However, certain disadvantages accompany incorporation in the
Cayman Islands. These disadvantages include:
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the Cayman Islands has a less developed body of securities laws
as compared to the United States and these securities laws
provide significantly less protection to investors; and
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Cayman Islands companies may not have standing to sue before the
federal courts of the United States.
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Our constituent documents do not contain provisions requiring
that disputes be submitted to arbitration, including those
arising under the securities laws of the United States, among
us, our officers, directors and shareholders.
All of our current operations are conducted in China, and
substantially all of our assets are located in China. A majority
of our directors and officers are nationals or residents of
jurisdictions other than the United States and a substantial
portion of their assets are located outside of the United
States. As a result, it may be difficult for a shareholder to
effect service of process within the United States upon us or
such persons, or to enforce against us or them judgments
obtained in United States courts, including judgments predicated
upon the civil liability provisions of the securities laws of
the United States or any state in the United States.
We have appointed CT Corporation System, 111 Eighth Avenue, New
York, New York 10011, as our agent upon whom process may be
served in any action brought against us under the securities
laws of the United States.
Maples and Calder, our counsel as to Cayman Islands law, and
Commerce & Finance Law Offices, our counsel as to PRC
law, have advised us, respectively, that it is uncertain whether
the courts of the Cayman Islands and China, respectively, would:
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recognize or enforce judgments of United States courts obtained
against us or our directors or officers predicated upon the
civil liability provisions of the securities laws of the United
States or any state in the United States; or
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entertain original actions brought in each respective
jurisdiction against us or our directors or officers predicated
upon the securities laws of the United States or any state in
the United States.
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Maples and Calder has further advised us that a final and
conclusive judgment in the federal or state courts of the United
States under which a sum of money is payable, other than a sum
payable in respect of taxes, fines, penalties or similar
charges, and which was neither obtained in a manner nor is of a
kind of enforcement of which is contrary to natural practice or
the public policy of the Cayman Islands, may be subject to
enforcement proceedings as a debt in the courts of the Cayman
Islands under the common law doctrine of obligation. Civil
liability provisions of the U.S. federal and state
securities law permit punitive damages against us; however,
according to Maples and Calder, Cayman Island courts would not
recognize or enforce judgments against us to the extent the
judgment is punitive or penal. It is uncertain as to whether a
judgment obtained from the U.S. courts under civil
liability
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provisions of the securities law would be determined by the
Cayman Islands courts as penal or punitive in nature. Such a
determination has yet to be made by any Cayman Islands court.
Commerce & Finance Law Offices has further advised us
that the recognition and enforcement of foreign judgments are
provided for under PRC Civil Procedures Law. PRC courts may
recognize and enforce foreign judgments in accordance with the
requirements of PRC Civil Procedures Law based either on
treaties between China and the country where the judgment is
made or on reciprocity between jurisdictions. As there is
currently no treaty or other agreement of reciprocity between
China and the United States governing the recognition of a
judgment, it is uncertain whether a PRC court would enforce a
judgment rendered by a court in the United States.
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TAXATION
The following summary of the material Cayman Islands, PRC and
United States federal income tax consequences of an investment
in our ADSs or ordinary shares is based upon laws and relevant
interpretations thereof in effect as of the date of this
prospectus, all of which are subject to change. This summary
does not deal with all possible tax consequences relating to an
investment in our ADSs or ordinary shares, such as the tax
consequences under state, local and other tax laws.
Cayman
Islands Taxation
According to Maples and Calder, our Cayman Islands counsel, the
Cayman Islands currently levies no taxes on individuals or
corporations based upon profits, income, gains or appreciation
and there is no taxation in the nature of inheritance tax or
estate duty. There are no other taxes likely to be material to
us levied by the government of the Cayman Islands except for
stamp duty which may be applicable on instruments executed in,
or brought within the jurisdiction of the Cayman Islands, or
produced before a court of the Cayman Islands. The Cayman
Islands is not party to any double tax treaties that are
applicable to any payments made to or by CNinsure. There are no
exchange control regulations or currency restrictions in the
Cayman Islands.
PRC
Taxation
Under the former PRC Income Tax Law for Enterprises with Foreign
Investment and Foreign Enterprises, any dividends payable by
foreign-invested enterprises to non-PRC investors were exempt
from any PRC withholding tax. In addition, any interest or
dividends payable, or distributions made, by us to holders or
beneficial owners of our ADSs or ordinary shares would not have
been subject to any PRC tax, provided that such holders or
beneficial owners, including individuals and enterprises, were
not deemed to be PRC residents under the PRC tax law and had not
become subject to PRC tax.
Under the new Enterprise Income Tax Law, which took effect as of
January 1, 2008, enterprises established under the laws of
non-PRC jurisdictions but whose de facto management
body is located in China are considered resident
enterprises for PRC tax purposes. Under the implementation
regulations issued by the State Council relating to the new law,
de facto management bodies are defined as the bodies
that have material and overall management control over the
business, personnel, accounts and properties of an enterprise.
Substantially all of our management are currently based in
China, and may remain in China in the future. If we were treated
as a resident enterprise for PRC tax purposes, we
would be subject to PRC income tax on our worldwide income at a
uniform tax rate of 25%, but dividends received by us from our
PRC subsidiaries may be exempt from the income tax.
Under the new law and its implementation regulations, dividends
paid to a non-PRC investor are generally subject to a 10% PRC
withholding tax, if such dividends are derived from sources
within China and the non-PRC investor is considered to be a
non-resident enterprise without any establishment or place of
business within China or if the dividends paid have no
connection with the non-PRC investors establishment or
place of business within China, unless such tax is eliminated or
reduced under an applicable tax treaty. Similarly, any gain
realized on the transfer of ADSs or shares by such investor is
also subject to a 10% PRC withholding tax if such gain is
regarded as income derived from sources within China, unless
such tax is eliminated or reduced under an applicable tax treaty.
If we were considered a PRC resident enterprise, it
is possible that the dividends we pay with respect to our ADSs
or ordinary shares, or the gain you may realize from the
transfer of our ADSs or ordinary shares, would be treated as
income derived from sources within China and be subject to the
10% PRC withholding tax.
United
States Federal Income Taxation
The following discussion describes the material
U.S. federal income tax consequences to U.S. Holders
(as defined below) under current law of an investment in our
ADSs or ordinary shares. This discussion applies only to
U.S. Holders that hold the ADSs or ordinary shares as
capital assets (generally, property held for investment) and
that have the U.S. dollar as their functional currency.
This discussion is based on the tax laws of the United States as
in effect on the date of this prospectus and on
U.S. Treasury regulations in effect or, in some cases,
proposed as of the date of this prospectus, as well as judicial
and administrative interpretations thereof available on or
before such
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date. All of the foregoing authorities are subject to change,
which change could apply retroactively and could affect the tax
consequences described below.
The following discussion does not deal with the tax consequences
to any particular investor or to persons in special tax
situations such as:
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banks and other financial institutions;
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insurance companies;
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broker-dealers;
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traders that elect to use a mark-to-market method of accounting;
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tax-exempt entities;
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persons liable for alternative minimum tax;
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U.S. expatriates;
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regulated investment companies or real estate investment trusts;
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persons holding an ADS or ordinary share as part of a straddle,
hedging, conversion or integrated transaction;
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persons who acquired ADSs or ordinary shares pursuant to the
exercise of any employee stock options or otherwise as
compensation;
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persons that actually or constructively own 10% or more of the
total combined voting power of all classes of our voting
stock; or
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partnerships or other pass-through entities, or persons holding
ADSs or ordinary shares through such entities.
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INVESTORS SHOULD CONSULT THEIR TAX ADVISORS REGARDING THE
APPLICATION OF THE U.S. FEDERAL TAX RULES TO THEIR
PARTICULAR CIRCUMSTANCES AS WELL AS THE STATE, LOCAL, FOREIGN
AND OTHER TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP
AND DISPOSITION OF OUR ADSs OR ORDINARY SHARES.
The discussion below of the U.S. federal income tax
consequences to U.S. Holders will apply to you
if you are a beneficial owner of our ADSs or ordinary shares and
you are, for U.S. federal income tax purposes:
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an individual who is a citizen or resident of the United States;
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a corporation (or other entity treated as a corporation for
U.S. federal income tax purposes) organized under the laws
of the United States, any state thereof or the District of
Columbia;
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an estate, the income of which is subject to U.S. federal
income taxation regardless of its source; or
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a trust that (i) is subject to the primary supervision of a
court within the United States and the control of one or more
U.S. persons for all substantial decisions; or
(ii) has a valid election in effect under applicable
U.S. Treasury regulations to be treated as a
U.S. person.
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If you are a partner in a partnership (or other entity treated
as a partnership for U.S. federal income tax purposes) that
holds our ADSs or ordinary shares, your tax treatment will
generally depend on your status and the activities of the
partnership.
The discussion below assumes that the representations contained
in the deposit agreement are true and that the obligations in
the deposit agreement and any related agreement have been and
will be complied with in accordance with their terms. If you
hold our ADSs, you should be treated as the beneficial owner of
the underlying ordinary shares represented by those ADSs for
U.S. federal income tax purposes.
The U.S. Treasury has expressed concerns that
U.S. holders of ADSs may be claiming foreign tax credits in
situations where an intermediary in the chain of ownership
between the holder of an ADS and the issuer of the
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security underlying the ADS has taken actions inconsistent with
the ownership of the underlying security by the person claiming
the credit. Such actions (for example, a pre-release of an ADS
by a depositary) may also be inconsistent with the claiming of
the reduced rate of tax applicable to dividends received by
certain non-corporate U.S. holders of ADSs, including
individual U.S. holders (discussed below). Accordingly, the
availability of foreign tax credits or the reduced tax rate for
dividends received by certain non-corporate U.S. Holders,
including individual U.S. Holders, could be affected by
actions taken by the U.S. Treasury or the depositary.
Taxation
of Dividends and Other Distributions on the ADSs or Ordinary
Shares
Subject to the passive foreign investment company rules
discussed below, the gross amount of any distributions we make
to you with respect to our ADSs or ordinary shares (including
the amount of any taxes withheld therefrom) will generally be
included in your gross income as dividend income on the date of
actual or constructive receipt by the depositary, in the case of
ADSs, or by you, in the case of ordinary shares, but only to the
extent that the distribution is paid out of our current or
accumulated earnings and profits (as determined under
U.S. federal income tax principles). To the extent the
amount of the distribution exceeds our current and accumulated
earnings and profits (as determined under U.S. federal
income tax principles), such excess amount will be treated first
as a tax-free return of your tax basis in your ADSs or ordinary
shares, and then, to the extent such excess amount exceeds your
tax basis, as capital gain. We currently do not, and we do not
intend to, calculate our earnings and profits under
U.S. federal income tax principles. Therefore, a
U.S. Holder should expect that a distribution will
generally be treated as a dividend even if that distribution
would otherwise be treated as a non-taxable return of capital or
as capital gain under the rules described above. Any dividends
we pay will not be eligible for the dividends-received deduction
allowed to corporations in respect of dividends received from
other U.S. corporations.
With respect to certain non-corporate U.S. Holders,
including individual U.S. Holders, for taxable years
beginning before January 1, 2011, dividends will be
qualified dividend income that is taxed at the lower
applicable capital gains rate, provided that certain conditions
are satisfied, including (1) our ADSs or ordinary shares
are readily tradable on an established securities market in the
United States, or we are eligible for the benefits of a
qualifying income tax treaty with the United States that
includes an exchange of information program, (2) we are
neither a passive foreign investment company nor treated as such
with respect to you for our taxable year in which the dividend
is paid and the preceding taxable year, and (3) certain
holding period requirements are met. Based on U.S. Treasury
guidance, we expect that the ADSs, but not our ordinary shares,
will be considered readily tradable on an established securities
market in the United States for purposes of clause (1)
above so long as they remain listed on the Nasdaq Global Select
Market. There can be no assurance, however, that our ADSs will
be considered readily tradable on an established securities
market in later years. If we are deemed to be a resident
enterprise under PRC tax law (see
Taxation PRC Taxation), we may be
eligible for the benefits of the income tax treaty between the
United States and the PRC. You should consult your tax advisors
regarding the availability of the lower capital gains rate
applicable to qualified dividend income for any dividends paid
with respect to the ADSs or ordinary shares and any possible
change in law relating to the availability of such lower rate
for dividends paid by us.
Newly enacted legislation requires certain U.S. Holders
that are individuals, estates or trusts to pay an additional
3.8% tax on, among other things, dividends on our ADSs or
ordinary shares for taxable years beginning after
December 31, 2012. You should consult your tax advisors
regarding the effect, if any, of this legislation on an
investment in the ADSs or ordinary shares.
Dividends will constitute foreign source income for foreign tax
credit limitation purposes. If the dividends are qualified
dividend income (as discussed above), the amount of the dividend
taken into account for purposes of calculating the foreign tax
credit limitation will generally be limited to the gross amount
of the dividend, multiplied by the reduced tax rate applicable
to qualified dividend income and divided by the highest tax rate
normally applicable to dividends. The limitation on foreign
taxes eligible for credit is calculated separately with respect
to specific classes of income. For this purpose, any dividends
distributed by us with respect to our ADSs or ordinary shares
will be passive category income or, in the case of
certain U.S. Holders, general category income.
In addition, if PRC withholding taxes apply to dividends paid to
you with respect to the ADSs or ordinary shares (see
Taxation PRC Taxation), subject to
certain conditions and limitations, such PRC withholding taxes
may be treated as foreign taxes eligible for credit against your
U.S. federal income tax liability. The rules relating to
the
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determination of the foreign tax credit are complex, and you
should consult your tax advisors regarding the availability of a
foreign tax credit in your particular circumstances.
Taxation
of Disposition of the ADSs or Ordinary Shares
Subject to the passive foreign investment company rules
discussed below, you will recognize taxable gain or loss on any
sale, exchange or other taxable disposition of an ADS or
ordinary share equal to the difference between the amount
realized (in U.S. dollars) for the ADS or ordinary share
and your tax basis (in U.S. dollars) in the ADS or ordinary
share. The gain or loss will be capital gain or loss. If you are
a non-corporate U.S. Holder, including an individual
U.S. Holder, who has held the ADS or ordinary share for
more than one year, you will be eligible for reduced tax rates.
The deductibility of capital losses is subject to limitations.
Newly enacted legislation requires certain U.S. Holders
that are individuals, estates or trusts to pay an additional
3.8% tax on, among other things, capital gains from the sale or
other disposition of our ADSs or ordinary shares for taxable
years beginning after December 31, 2012. You should consult
your tax advisors regarding the effect, if any, of this
legislation on an investment in the ADSs or ordinary shares.
Any gain or loss that you recognize on a disposition of our ADSs
or ordinary shares will generally be treated as U.S. source
income or loss for foreign tax credit limitation purposes.
However, if we are deemed to be a resident
enterprise under PRC tax law, we may be eligible for the
benefits of the income tax treaty between the United States and
the PRC. In such event, if PRC tax were to be imposed on any
gain from the disposition of the ADSs or ordinary shares (see
Taxation PRC Taxation), a
U.S. Holder that is eligible for the benefits of the treaty
may elect to treat such gain as PRC source income. You should
consult your tax advisors regarding the proper treatment of gain
or loss in your particular circumstances.
Passive
Foreign Investment Company
Based on the market price of our ADSs, the value of our assets,
and the composition of our income and assets, we do not expect
to be a passive foreign investment company, or PFIC,
for U.S. federal income tax purposes for our current
taxable year ending December 31, 2010. We must make a
separate determination after the close of each taxable year as
to whether we were a PFIC for that year. Accordingly, we cannot
assure you that we will not be a PFIC for our current taxable
year or any future taxable year. Because PFIC status is a
factual determination for each taxable year that cannot be made
until after the close of each such year, Latham & Watkins
LLP, our special U.S. counsel, expresses no opinion with respect
to our PFIC status or our beliefs or expectations relating to
such status set forth in this discussion. A
non-U.S. corporation
will be a PFIC for any taxable year if either:
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at least 75% of its gross income for such year is passive
income; or
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at least 50% of the value of its assets (based on an average of
the quarterly values of the assets) during such year is
attributable to assets that produce passive income or are held
for the production of passive income (the asset
test).
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For this purpose, we will be treated as owning our proportionate
share of the assets and earning our proportionate share of the
income of any other corporation in which we own, directly or
indirectly, at least 25% (by value) of the stock. In applying
this rule, however, it is not clear whether the contractual
arrangements between us and our affiliated entities will be
treated as ownership of stock.
The composition of our income and assets will be affected by
how, and how quickly, we use the cash we generate from our
operations and raise in this or any subsequent offering. Because
the value of our assets for purposes of the asset test will
generally be determined by reference to the market price of our
ADSs or ordinary shares, fluctuations in the market price of the
ADSs or ordinary shares may cause us to become a PFIC. If we are
a PFIC for any taxable year during which you hold ADSs or
ordinary shares, we will generally continue to be treated as a
PFIC with respect to you for all succeeding years during which
you hold the ADSs or ordinary shares, unless we cease to be a
PFIC and you make a deemed sale election with
respect to the ADSs or ordinary shares, as applicable. If such
election is made, you will be deemed to have sold the ADSs or
ordinary shares you hold at their fair market value and any gain
from such deemed sale would be subject to the rules described in
the following two
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paragraphs. After the deemed sale election, your ADSs or
ordinary shares with respect to which such election was made
will not be treated as shares in a PFIC unless we subsequently
become a PFIC.
For each taxable year that we are treated as a PFIC with respect
to you, you will be subject to special tax rules with respect to
any excess distribution you receive and any gain you
recognize from a sale or other disposition (including a pledge)
of the ADSs or ordinary shares, unless you make a
mark-to-market election as discussed below.
Distributions you receive in a taxable year that are greater
than 125% of the average annual distributions you received
during the shorter of the three preceding taxable years or your
holding period for the ADSs or ordinary shares will be treated
as an excess distribution. Under these special tax rules:
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the excess distribution or recognized gain will be allocated
ratably over your holding period for the ADSs or ordinary shares;
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the amount allocated to the current taxable year, and any
taxable years in your holding period prior to the first taxable
year in which we were a PFIC, will be treated as ordinary
income; and
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the amount allocated to each other year will be subject to the
highest tax rate in effect for individuals or corporations, as
applicable, for each such year, and the interest charge
generally applicable to underpayments of tax will be imposed on
the resulting tax attributable to each such year.
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The tax liability for amounts allocated to years prior to the
year of disposition or excess distribution cannot be offset by
any net operating losses for such years, and gains (but not
losses) from a sale or other disposition of the ADSs or ordinary
shares cannot be treated as capital, even if you hold the ADSs
or ordinary shares as capital assets. In addition, non-corporate
U.S. Holders will not be eligible for reduced rates of taxation
on any dividends received from us in taxable years beginning
prior to January 1, 2011, if we are treated as a PFIC with
respect to you in the taxable year in which such dividends are
paid or in the preceding taxable year.
If we are treated as a PFIC with respect to you for any taxable
year, to the extent any of our subsidiaries are also PFICs or we
make direct or indirect equity investments in other entities
that are PFICs, you will be deemed to own shares in such
lower-tier PFICs that are directly or indirectly owned by us in
that proportion that the value of the ADSs or ordinary shares
you own bears to the value of all of our ADSs and ordinary
shares, and you may be subject to the rules described in the
preceding two paragraphs with respect to the shares of such
lower-tier PFICs that you would be deemed to own. You
should consult your tax advisors regarding the application of
the PFIC rules to any of our subsidiaries.
A U.S. Holder of marketable stock (as defined
below) of a PFIC may make a mark-to-market election for such
stock to elect out of the PFIC rules described above regarding
excess distributions and recognized gains. If you make a
mark-to-market election for our ADSs or ordinary shares, you
will include in income for each year that we are a PFIC an
amount equal to the excess, if any, of the fair market value of
the ADSs or ordinary shares you hold as of the close of your
taxable year over your adjusted basis in such ADSs or ordinary
shares. You will be allowed a deduction for the excess, if any,
of the adjusted basis of the ADSs or ordinary shares over their
fair market value as of the close of the taxable year. However,
deductions will be allowable only to the extent of any net
mark-to-market gains on the ADSs or ordinary shares included in
your income for prior taxable years. Amounts included in your
income under a mark-to-market election, as well as any gain from
the actual sale or other disposition of the ADSs or ordinary
shares, will be treated as ordinary income. Ordinary loss
treatment will apply to the deductible portion of any
mark-to-market loss on the ADSs or ordinary shares, as well as
to any loss from the actual sale or other disposition of the
ADSs or ordinary shares, to the extent that the amount of such
loss does not exceed the net mark-to-market gains previously
included for such ADSs or ordinary shares. Your basis in the
ADSs or ordinary shares will be adjusted to reflect any such
income or loss amounts. If you make a valid mark-to-market
election, the tax rules that apply to distributions by
corporations that are not PFICs would apply to distributions by
us, except that the lower capital gains rate applicable to
qualified dividend income (discussed above under
Taxation of Dividends and Other Distributions
on the ADSs or Ordinary Shares) would not apply.
The mark-to-market election is available only for
marketable stock, which is stock that is traded in
greater than de minimis quantities on at least 15 days
during each calendar quarter (regularly traded) on a
qualified exchange or other market, as defined in applicable
U.S. Treasury regulations. Our ADSs are listed on the
Nasdaq Global Select Market, which is a qualified exchange or
other market for these purposes. Consequently, if the ADSs
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continue to be listed on the Nasdaq Global Select Market and are
regularly traded, and you are a holder of ADSs, we expect that
the mark-to-market election would be available to you if we
become a PFIC. Because a mark-to-market election cannot be made
for equity interests in any lower-tier PFICs that we own, a
U.S. Holder may continue to be subject to the PFIC rules
described above regarding excess distributions and recognized
gains with respect to its indirect interest in any investments
held by us that are treated as an equity interest in a PFIC for
U.S. federal income tax purposes.
Alternatively, a U.S. Holder of stock of a PFIC may make a
qualified electing fund election with respect to
such corporation to elect out of the PFIC rules described above
regarding excess distributions and recognized gains. A
U.S. Holder that makes a valid qualified electing fund
election with respect to a PFIC will generally include in income
for a taxable year such holders pro rata share of the
corporations income for the taxable year. However, the
qualified electing fund election is available only if the PFIC
provides such U.S. Holder with certain tax information as
required under applicable U.S. Treasury regulations. We do
not intend to prepare or provide the information that would
enable you to make a qualified electing fund election.
Under newly enacted legislation, unless otherwise provided by
the U.S. Treasury, each U.S. shareholder of a PFIC is
required to file an annual report containing such information as
the U.S. Treasury may require. Prior to such legislation, a
U.S. shareholder of a PFIC was required to file Internal
Revenue Service Form 8621 only for each taxable year in
which such shareholder received distributions from the PFIC,
recognized gain on a disposition of the PFIC stock, or made a
reportable election. If we are or become a PFIC, you
should consult your tax advisors regarding any reporting
requirements that may apply to you.
You should consult your tax advisors regarding the
application of the PFIC rules to your investment in our ADSs or
ordinary shares.
Information
Reporting and Backup Withholding
Dividend payments with respect to ADSs or ordinary shares and
proceeds from the sale, exchange or other disposition of ADSs or
ordinary shares may be subject to information reporting to the
Internal Revenue Service and possible U.S. backup
withholding at a current rate of 28%, unless the conditions of
an applicable exception are satisfied. Backup withholding will
not apply to a U.S. Holder that furnishes a correct
taxpayer identification number and makes any other required
certification or that is otherwise exempt from backup
withholding. U.S. Holders that are required to establish
their exempt status generally must provide such certification on
Internal Revenue Service
Form W-9.
Under newly enacted legislation, certain individuals holding the
ADSs or ordinary shares other than in an account at a financial
institution may be subject to additional information reporting
requirements. U.S. Holders should consult their tax
advisors regarding the application of the U.S. information
reporting and backup withholding rules.
Backup withholding is not an additional tax. Amounts withheld as
backup withholding may be credited against your
U.S. federal income tax liability, and you may obtain a
refund of any excess amounts withheld under the backup
withholding rules by filing the appropriate claim for refund
with the Internal Revenue Service and furnishing any required
information in a timely manner.
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DESCRIPTION
OF SHARE CAPITAL
We are a Cayman Islands company and our affairs are governed by
our memorandum and articles of association and the Companies
Law, Cap. 22 (2009 Revision) of the Cayman Islands, which is
referred to as the Companies Law below.
As of the date hereof, our authorized share capital consists of
10,000,000,000 ordinary shares, with a par value of $0.001 each.
As of the date hereof, 916,997,726 ordinary shares are issues
and outstanding (including the 3,218,900 ordinary shares that we
reserved for issuance upon the exercise of our outstanding
options).
The following is a summary of the material provisions of our
amended and restated memorandum and articles of association and
the Companies Law insofar as they relate to the material terms
of our ordinary shares.
Ordinary
Shares
General. All of our outstanding ordinary
shares are fully paid and non-assessable. Certificates
representing the ordinary shares are issued in registered form.
Our shareholders who are nonresidents of the Cayman Islands may
freely hold and vote their shares.
Dividend Rights. The holders of our ordinary
shares are entitled to such dividends as may be declared by our
board of directors subject to the Companies Law.
Voting Rights. Each ordinary share is entitled
to one vote on all matters upon which the ordinary shares are
entitled to vote. Voting at any meeting of shareholders is by
show of hands unless a poll is demanded. A poll may be demanded
by the chairman of the meeting or by any one or more
shareholders together holding at least ten percent of our paid
up voting share capital, present in person or by proxy.
A quorum required for a meeting of shareholders consists of
shareholders holding in aggregate not less than one-third of our
issued voting share capital present in person or by proxy or, if
a corporation or other non-natural person, by its duly
authorized representative. We may, but are not obliged, to hold
an annual general meeting of shareholders. General meetings may
be convened by our board of directors on its own initiative or
upon a request to the directors by shareholders holding in
aggregate not less than one-third of our voting share capital.
Advance notice of at least 14 days is required for the
convening of our annual general meeting and other shareholders
meetings.
An ordinary resolution to be passed by the shareholders requires
the affirmative vote of a simple majority of the votes attaching
to the ordinary shares cast in a general meeting, while a
special resolution requires the affirmative vote of no less than
two-thirds of the votes cast attaching to the ordinary shares. A
special resolution is required for important matters such as a
change of name. Holders of the ordinary shares may effect
certain changes by ordinary resolution, including consolidating
and dividing all or any of our share capital into shares of
larger amount than our existing share capital, and canceling any
shares which have not been taken or agreed to be taken.
Transfer of Shares. Subject to the
restrictions of our articles of association, as applicable, any
of our shareholders may transfer all or any of his or her
ordinary shares by an instrument of transfer in the usual or
common form or any other form approved by our board.
Liquidation. On a return of capital on winding
up or otherwise (other than on conversion, redemption or
purchase of shares), assets available for distribution among the
holders of ordinary shares may be distributed among the holders
of the ordinary shares as determined by the liquidator, subject
to sanction of an ordinary resolution of our company.
Calls on Shares and Forfeiture of Shares. Our
board of directors may from time to time make calls upon
shareholders for any amounts unpaid on their shares in a notice
served to such shareholders at least 14 days prior to the
specified time of payment. The shares that have been called upon
and remain unpaid on the specified time are subject to
forfeiture.
Redemption and Repurchase of Shares. Subject
to the provisions of the Companies Law and our articles of
association, we may issue shares on terms that they are subject
to redemption, at our option or at the option of the holders, on
such terms and in such manner as our board of directors may
determine before the issue of such shares. We also may purchase
our own shares, provided that our shareholders have approved the
manner of purchase by
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ordinary resolution or the manner of purchase is in accordance
with that specified in our articles of association. The manner
of purchase specified in our articles of association, which
cover purchases of shares listed on an internationally
recognized stock exchange and shares not so listed, is in
accordance with Section 37(2) of the Companies Law or any
modification or reenactment thereof for the time being in force.
Variations of Rights of Shares. All or any of
the special rights attached to any class of shares may, subject
to the provisions of the Companies Law, be varied either with
the written consent of the holders of a majority of the issued
shares of that class or with the sanction of a special
resolution passed at a general meeting of the holders of the
shares of that class.
Inspection of Books and Records. Holders of
our ordinary shares have no general right under Cayman Islands
law to inspect or obtain copies of our list of shareholders or
our corporate records. However, we make our annual reports,
which contains our audited financial statements, available to
our shareholders.
Differences
in Corporate Law
The Companies Law differs from laws applicable to United States
corporations and their shareholders. Set forth below is a
summary of the significant differences between the provisions of
the Companies Law applicable to us and the laws applicable to
companies incorporated in the United States and their
shareholders.
Mergers and Similar Arrangements. The
Companies Law permits mergers and consolidations between Cayman
Islands companies and between Cayman Islands companies and
non-Cayman Islands companies.
For these purposes, (a) merger means the
merging of two or more constituent companies and the vesting of
their undertaking, property and liabilities in one of such
companies as the surviving company and (b) a
consolidation means the combination of two or more
constituent companies into a consolidated company and the
vesting of the undertaking, property and liabilities of such
companies to the consolidated company.
In order to effect such a merger or consolidation, the directors
of each constituent company must approve a written plan of
merger or consolidation, or the Plan, which must then be
authorised by either (a) a special resolution of the
shareholders of each constituent company voting together as one
class if the shares to be issued to each shareholder in the
consolidated or surviving company will have the same rights and
economic value as the shares held in the relevant constituent
company or (b) a shareholder resolution of each constituent
company passed by a majority in number representing 75% in value
of the shareholders voting together as one class. The Plan must
be filed with the Registrar of Companies together with a
declaration as to the solvency of the consolidated or surviving
company, a list of the assets and liabilities of each
constituent company and an undertaking that a copy of the
certificate of merger or consolidation will be given to the
members and creditors of each constituent company and published
in the Cayman Islands Gazette.
Dissenting shareholders have the right to be paid the fair value
of their shares (which, if not agreed between the parties, will
be determined by the Cayman Islands court) if they follow the
required procedures, subject to certain exceptions. Court
approval is not required for a merger or consolidation which is
effected in compliance with these statutory procedures.
In addition, there are statutory provisions that facilitate the
reconstruction and amalgamation of companies, provided that the
arrangement is approved by a majority in number of each class of
shareholders and creditors with whom the arrangement is to be
made, and who must in addition represent three-fourths in value
of each such class of shareholders or creditors, as the case may
be, that are present and voting either in person or by proxy at
a meeting, or meetings, convened for that purpose. The convening
of the meetings and subsequently the arrangement must be
sanctioned by the Grand Court of the Cayman Islands. While a
dissenting shareholder has the right to express to the court the
view that the transaction ought not to be approved, the court
can be expected to approve the arrangement if it determines that:
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the company is not proposing to act illegally or beyond the
scope of its authority and the statutory provisions as to
majority vote have been complied with;
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the shareholders have been fairly represented at the meeting in
question;
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the arrangement is such that a businessman would reasonably
approve; and
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the arrangement is not one that would more properly be
sanctioned under some other provision of the Companies Law, or
would amount to a fraud on the minority.
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When a take-over offer is made and accepted by holders of 90.0%
of the shares within four months, the offerer may, within a
two-month period, require the holders of the remaining shares to
transfer such shares according to the terms of the offer. An
objection can be made to the Grand Court of the Cayman Islands
but this is unlikely to succeed unless there is evidence of
fraud, bad faith or collusion.
If the arrangement and reconstruction is thus approved, the
dissenting shareholder would have no rights comparable to
appraisal rights, which would otherwise ordinarily be available
to dissenting shareholders of United States corporations,
providing rights to receive payment in cash for the judicially
determined value of the shares.
Shareholders Suits. The Cayman Islands
courts can be expected to follow English case law precedents.
The common law principles (namely the rule in Foss v.
Harbottle and the exceptions thereto) which permit a minority
shareholder to commence a class action against or derivative
actions in the name of the Company to challenge (a) an act
which is ultra vires the Company or illegal, (b) an act
which constitutes a fraud against the minority where the
wrongdoers are themselves in control of the Company, and
(c) an action which requires a resolution with a qualified
(or special) majority which has not been obtained) have been
applied and followed by the courts in the Cayman Islands.
Indemnification. Cayman Islands law does not
limit the extent to which a companys articles of
association may provide for indemnification of officers and
directors, except to the extent any such provision may be held
by the Cayman Islands courts to be contrary to public policy,
such as to provide indemnification against civil fraud or the
consequences of committing a crime.
Our amended and restated memorandum and articles of association
provide for indemnification of officers and directors for
losses, damages, costs and expenses incurred in their capacity
as such, except through their own willful neglect or default.
We have entered into indemnification agreements with our
directors and executive officers to indemnify them to the
fullest extent permitted by applicable law and our articles of
association, from and against all costs, charges, expenses,
liabilities and losses incurred in connection with any
litigation, suit or proceeding to which such director is or is
threatened to be made a party, witness or other participant.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling us under the foregoing provisions, we have
been advised that in the opinion of the SEC such indemnification
is against public policy as expressed in the Securities Act and
therefore is unenforceable.
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DESCRIPTION
OF AMERICAN DEPOSITARY SHARES
American
Depositary Shares
JPMorgan Chase Bank, N.A., as depositary, will issue the ADSs
which you will be entitled to receive in the offering. Each ADS
will represent an ownership interest in ordinary shares which we
will deposit with the custodian, as agent of the depositary,
under the deposit agreement among ourselves, the depositary and
yourself as an ADR holder. In the future, each ADS will also
represent any securities, cash or other property deposited with
the depositary but which have not been distributed directly to
you. Unless specifically requested by you, all ADSs will be
issued on the books of our depositary in book-entry form and
periodic statements will be mailed to you which reflect your
ownership interest in such ADSs. In our description, references
to American depositary receipts or ADRs shall include the
statements you will receive which reflect your ownership of ADSs.
The depositarys office is located at 1 Chase
Manhattan Plaza, Floor 58, New York, New York 10005.
You may hold ADSs either directly or indirectly through your
broker or other financial institution. If you hold ADSs
directly, by having an ADS registered in your name on the books
of the depositary, you are an ADR holder. This description
assumes you hold your ADSs directly. If you hold the ADSs
through your broker or financial institution nominee, you must
rely on the procedures of such broker or financial institution
to assert the rights of an ADR holder described in this section.
You should consult with your broker or financial institution to
find out what those procedures are.
Because the depositarys nominee will actually be the
registered owner of the shares, you must rely on it to exercise
the rights of a shareholder on your behalf. The obligations of
the depositary and its agents are set out in the deposit
agreement. The deposit agreement and the ADSs are governed by
New York law.
The following is a summary of the material terms of the deposit
agreement. Because it is a summary, it does not contain all the
information that may be important to you. For more complete
information, you should read the entire deposit agreement and
the form of ADR which contains the terms of your ADSs. You can
read a copy of the deposit agreement which is filed as an
exhibit to the registration statement of which this prospectus
forms a part. You may also obtain a copy of the deposit
agreement at the SECs Public Reference Room which is
located at 100 F Street, NE, Washington, D.C.
20549. You may obtain information on the operation of the Public
Reference Room by calling the SEC at
1-800-SEC-0330.
You may also find the registration statement and the attached
deposit agreement from the SECs website at
http://www.sec.gov.
Share
Dividends and Other Distributions
How
will you Receive Dividends and Other Distributions on the Shares
Underlying your ADSs?
We may make various types of distributions with respect to our
shares. The depositary has agreed to pay to you the cash
dividends or other distributions it or the custodian receives on
shares or other deposited securities, after converting any cash
received into U.S. dollars and, in all cases, making any
necessary deductions provided for in the deposit agreement. You
will receive these distributions in proportion to the number of
underlying securities that your ADSs represent.
Except as stated below, to the extent the depositary is legally
permitted it will deliver such distributions to ADR holders in
proportion to their interests in the following manner:
Cash. The depositary will distribute any
U.S. dollars available to it resulting from a cash dividend
or other cash distribution or the net proceeds of sales of any
other distribution or portion thereof (to the extent
applicable), on an averaged or other practicable basis, subject
to (a) appropriate adjustments for taxes withheld,
(b) such distribution being impermissible or impracticable
with respect to certain registered holders, and
(c) deduction of the depositarys expenses in
(1) converting any foreign currency to U.S. dollars 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
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by public or private means in any commercially reasonable
manner. If exchange rates fluctuate during a time when the
depositary cannot convert a foreign currency, you may lose some
or all of the value of the distribution.
Shares. In the case of a distribution in
shares, the depositary will issue additional ADRs to evidence
the number of ADSs representing such shares. Only whole ADSs
will be issued. Any shares which would result in fractional ADSs
will be sold and the net proceeds will be distributed in the
same manner as cash to the ADR holders entitled thereto.
Rights to receive Additional Shares. In the
case of a distribution of rights to subscribe for additional
shares or other rights, if we provide satisfactory evidence that
the depositary may lawfully distribute such rights, the
depositary will distribute warrants or other instruments
representing such rights. However, if we do not furnish such
evidence, the depositary may:
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sell such rights if practicable and distribute the net proceeds
as cash; or
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if it is not practicable to sell such rights, do nothing and
allow such rights to lapse, in which case ADR holders will
receive nothing.
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We have no obligation to file a registration statement under the
Securities Act in order to make any rights available to ADR
holders.
Other Distributions. In the case of a
distribution of securities or property other than those
described above, the depositary may either (a) distribute
such securities or property in any manner it deems equitable and
practicable or (b) to the extent the depositary deems
distribution of such securities or property not to be equitable
and practicable, sell such securities or property and distribute
any net proceeds in the same way it distributes cash.
If the depositary determines that any distribution described
above is not practicable with respect to any specific ADR
holder, the depositary may choose any practicable method of
distribution for such ADR holder, including the distribution of
foreign currency, securities or property, or it may retain such
items, without paying interest on or investing them, on behalf
of the ADR holder as deposited securities, in which case the
ADSs will also represent the retained items.
Any U.S. dollars 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 for interest
thereon and dealt with by the depositary in accordance with its
then current practices.
The depositary is not responsible if it decides that it is
unlawful or impractical to make a distribution available to any
ADR holders.
There can be no assurance that the depositary will be able to
convert any currency at a specified exchange rate or sell any
property, rights, shares or other securities at a specified
price, nor that any of such transactions can be completed within
a specified time period.
Deposit,
Withdrawal and Cancellation
How
does the Depositary Issue ADSs?
The depositary will issue ADSs if you or your broker deposit
shares or evidence of rights to receive shares with the
custodian. In the case of the ADSs to be issued under this
prospectus, we will arrange with the underwriters named herein
to deposit such shares.
Shares deposited in the future with the custodian must be
accompanied by certain delivery documentation, including
instruments showing that such shares have been properly
transferred or endorsed to the person on whose behalf the
deposit is being made.
The custodian will hold all deposited shares (including those
being deposited by or on our behalf in connection with the
offering to which this prospectus relates) for the account of
the depositary. ADR holders thus have no direct ownership
interest in the shares and only have such rights as are
contained in the deposit agreement. The custodian will also hold
any additional securities, property and cash received on or in
substitution for the deposited shares. The deposited shares and
any such additional items are referred to as deposited
securities.
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Upon each deposit of shares, receipt of related delivery
documentation and compliance with the other provisions of the
deposit agreement, including the payment of the fees and charges
of the depositary and any taxes or other fees or charges owing,
the depositary will issue an ADR or ADRs in the name or upon the
order of the person entitled thereto evidencing the number of
ADSs to which such person is entitled. All of the ADSs issued
will, unless specifically requested to the contrary, be part of
the depositarys direct registration system, and a
registered holder will receive periodic statements from the
depositary which will show the number of ADSs registered in such
holders name. An ADR holder can request that the ADSs not
be held through the depositarys direct registration system
and that a certificated ADR be issued.
How do
ADR Holders Cancel an ADS and Obtain Deposited
Securities?
When you turn in your ADSs at the depositarys office, or
when you provide proper instructions and documentation in the
case of direct registration ADSs, the depositary will, upon
payment of certain applicable fees, charges and taxes, deliver
the underlying shares at the custodians office or effect
delivery by such other means as the depositary deems
practicable, including transfer to an account of an accredited
financial institution on your behalf. At your risk, expense and
request, the depositary may deliver deposited securities at such
other place as you may request.
The depositary may only restrict the withdrawal of deposited
securities in connection with:
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temporary delays caused by closing our transfer books or those
of the depositary or the deposit of shares in connection with
voting at a shareholders meeting, or the payment of
dividends;
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the payment of fees, taxes and similar charges; or
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compliance with any U.S. or foreign laws or governmental
regulations relating to the ADRs or to the withdrawal of
deposited securities.
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This right of withdrawal may not be limited by any other
provision of the deposit agreement.
Record
Dates
The depositary may fix record dates for the determination of the
ADR holders who will be entitled (or obligated, as the case may
be):
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to receive a dividend, distribution or rights;
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to give instructions for the exercise of voting rights at a
meeting of holders of ordinary shares or other deposited
securities;
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for the determination of the registered holders who shall be
responsible for the fee assessed by the depositary for
administration of the ADR program and for any expenses as
provided for in the ADR; or
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to receive any notice or to act in respect of other matters all
subject to the provisions of the deposit agreement.
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Voting
Rights
How do
you Vote?
If you are an ADR holder and the depositary asks you to provide
it with voting instructions, you may instruct the depositary how
to exercise the voting rights for the shares which underlie your
ADSs. After receiving voting materials from us, the depositary
will notify the ADR holders of any shareholder meeting or
solicitation of consents or proxies. This notice will state such
information as its contained in the voting materials and
describe how you may instruct the depositary to exercise the
voting rights for the shares which underlie your ADSs and will
include instructions for giving a discretionary proxy to a
person designated by us. For instructions to be valid, the
depositary must receive them in the manner and on or before the
date specified. The depositary will try, as far as is practical,
subject to the provisions of and governing the underlying shares
or other deposited securities, to vote or to have its agents
vote the shares or other deposited securities as you instruct.
The depositary will only vote or attempt to vote
21
as you instruct. The depositary will not itself exercise any
voting discretion. Furthermore, neither the depositary nor its
agents are responsible for any failure to carry out any voting
instructions, for the manner in which any vote is cast or for
the effect of any vote.
There is no guarantee that you will receive voting materials in
time to instruct the depositary to vote and it is possible that
you, or persons who hold their ADSs through brokers, dealers or
other third parties, will not have the opportunity to exercise a
right to vote.
Reports
and Other Communications
Will
you be Able to View our Reports?
The depositary will make available for inspection by ADR holders
any written communications from us 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. We will furnish these communications in English when
so required by any rules or regulations of the Securities and
Exchange Commission.
Additionally, if we make any written communications generally
available to holders of our shares, including the depositary or
the custodian, and we request the depositary to provide them to
ADR holders, the depositary will mail copies of them, or, at its
option, English translations or summaries of them to ADR holders.
Fees and
Expenses
What
Fees and Expenses Will you be Responsible for
Paying?
ADR holders will be charged a fee for each issuance of ADSs,
including issuances resulting from distributions of shares,
rights and other property, and for each surrender of ADSs in
exchange for deposited securities. The fee in each case is $5.00
for each 100 ADSs (or any portion thereof) issued or surrendered.
The following additional charges shall be incurred by the ADR
holders, by any party depositing or withdrawing shares or by any
party surrendering ADRs or to whom ADRs are issued (including,
without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock
regarding the ADRs or the deposited securities or a distribution
of ADRs), whichever is applicable:
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to the extent not prohibited by the rules of any stock exchange
or interdealer quotation system upon which the ADSs are traded,
a fee of US$1.50 per ADR or ADRs for transfers of certificated
or direct registration ADRs;
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a fee of US$0.02 or less per ADS (or portion thereof) for any
cash distribution made pursuant to the deposit agreement;
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a fee of up to US$0.05 per ADS per calendar year for services
performed by the depositary in administering our ADR program
(which fee shall be assessed against holders of ADRs as of the
record date set by the depositary not more than once each
calendar year and shall be payable in the manner described in
the next succeeding provision);
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any other charge payable by any of the depositary, any of the
depositarys agents, including, without limitation, the
custodian, or the agents of the depositarys agents in
connection with the servicing of our shares or other deposited
securities (which charge shall be assessed against registered
holders of our ADRs 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 registered holders or by deducting
such charge from one or more cash dividends or other cash
distributions);
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a fee for the distribution of securities (or the sale of
securities in connection with a distribution), such fee being in
an amount equal to the fee for the execution and delivery of
ADSs which would have been charged as a result of the deposit of
such securities (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 those
holders entitled thereto;
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stock transfer or other taxes and other governmental charges;
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cable, telex and facsimile transmission and delivery charges
incurred at your request;
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transfer or registration fees for the registration of transfer
of deposited securities on any applicable register in connection
with the deposit or withdrawal of deposited securities;
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expenses of the depositary in connection with the conversion of
foreign currency into U.S. dollars; and
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such fees and expenses as are incurred by the depositary
(including without limitation expenses incurred 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
depositarys or its custodians compliance with
applicable laws, rules or regulations.
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We 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 us and the depositary. The
fees described above may be amended from time to time.
Our depositary has agreed to reimburse us for certain expenses
we incur that are related to establishment and maintenance of
the ADR program, including investor relations expenses and
exchange application and listing fees. There are limits on the
amount of expenses for which the depositary will reimburse us,
but the amount of reimbursement available to us is not related
to the amounts of fees the depositary collects from investors.
The depositary collects its fees for issuance and cancellation
of ADSs directly from investors depositing shares or
surrendering ADSs for the purpose of withdrawal or from
intermediaries acting for them. The depositary collects fees for
making distributions to investors by deducting those fees from
the amounts distributed or by selling a portion of distributable
property to pay the fees. The depositary may collect its annual
fee for depositary services by deduction from cash
distributions, or by directly billing investors, or by charging
the book-entry system accounts of participants acting for them.
The depositary may generally refuse to provide services until
its fees for those services and any other unpaid fees are paid.
Payment
of Taxes
ADR holders must pay any tax or other governmental charge
payable by the custodian or the depositary on any ADS or ADR,
deposited security or distribution. If an ADR holder owes any
tax or other governmental charge, the depositary may
(a) deduct the amount thereof from any cash distributions,
or (b) sell deposited securities and deduct the amount
owing from the net proceeds of such sale. In either case the ADR
holder remains liable for any shortfall. Additionally, if any
tax or governmental charge is unpaid, the depositary may also
refuse to effect any registration, registration of transfer,
split-up or
combination of deposited securities or withdrawal of deposited
securities (except under limited circumstances mandated by
securities regulations). If any tax or governmental charge is
required to be withheld on any non-cash distribution, the
depositary may sell the distributed property or securities to
pay such taxes and distribute any remaining net proceeds to the
ADR holders entitled thereto.
By holding an ADR or an interest therein, you will be agreeing
to indemnify us, the depositary, its custodian and any of our or
their respective directors, employees, agents and affiliates
against, and hold each of them harmless from, any claims 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. None of the depositary, the
custodian or our company shall be liable for the failure by any
holder or beneficial owner of ADSs or ordinary shares to obtain
the benefits of credits on the basis of
non-U.S. tax
paid against such holders or beneficial owners
income tax liability. The depositary and our company shall not
incur any liability for any tax consequences that may be
incurred by holders and beneficial owners of ADSs or ordinary
shares on account of their ownership of ordinary shares, ADRs or
ADSs.
Reclassifications,
Recapitalizations and Mergers
If we take certain actions that affect the deposited securities,
including (i) any change in par value,
split-up,
consolidation, cancellation or other reclassification of
deposited securities or (ii) any recapitalization,
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reorganization, merger, consolidation, liquidation,
receivership, bankruptcy or sale of all or substantially all of
our assets, then the depositary may choose to:
(1) amend the form of ADR;
(2) distribute additional or amended ADRs;
(3) distribute cash, securities or other property it has
received in connection with such actions;
(4) sell any securities or property received and distribute
the proceeds as cash; or
(5) none of the above.
If the depositary does not choose any of the above options, any
of the cash, securities or other property it receives will
constitute part of the deposited securities and each ADS will
then represent a proportionate interest in such property.
Amendment
and Termination
How
may the Deposit Agreement be Amended?
We may agree with the depositary to amend the deposit agreement
and the ADSs without your consent for any reason. ADR holders
must be given at least 30 days notice of 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 prejudices any
substantial existing right of ADR holders. If an ADR holder
continues to hold an ADR or ADRs after being so notified, such
ADR holder is deemed to agree to such amendment. 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, we 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,
which amendment or supplement may take effect before a notice is
given or you otherwise receive notice. No amendment, however,
will impair your right to surrender your ADSs and receive the
underlying securities.
How
may the Deposit Agreement be Terminated?
The depositary may, and shall at our written direction,
terminate the deposit agreement and the ADR by mailing notice of
such termination to the registered holders of ADRs 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 under the deposit agreement,
notice of such termination by the depositary shall not be
provided to registered 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
under the deposit agreement, notice of such termination by the
depositary shall not be provided to registered holders of ADRs
unless a successor depositary shall not be operating hereunder
on the 90th day after our notice of removal was first
provided to the depositary. After termination, the
depositarys only responsibility will be (i) to
deliver deposited securities to ADR holders who surrender their
ADRs, and (ii) to hold or sell distributions received on
deposited securities. As soon as practicable after the
expiration of six months from the termination date, the
depositary will sell the deposited securities which remain and
hold the net proceeds of such sales, without liability for
interest, in trust for the ADR holders who have not yet
surrendered their ADRs. After making such sale, the depositary
shall have no obligations except to account for such proceeds
and other cash. The depositary will not be required to invest
such proceeds or pay interest on them.
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Limitations
on Obligations and Liability to ADR holders
Limits
on our Obligations and the Obligations of the Depositary; Limits
on Liability to ADR Holders and Holders of ADSs
Prior to the issue, registration, registration of transfer,
split-up,
combination, or cancellation of any ADRs, or the delivery of any
distribution in respect thereof, the depositary and its
custodian may require you to pay, provide or deliver:
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payment with respect thereto of (a) any stock transfer or
other tax or other governmental charge, (b) any stock
transfer or registration fees in effect for the registration of
transfers of shares or other deposited securities upon any
applicable register, and (c) any applicable fees and
expenses described in the deposit agreement;
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the production of proof satisfactory to the depositary
and/or its
custodian of (a) the identity of any signatory and
genuineness of any signature and (b) such other
information, including without limitation, information as to
citizenship, residence, exchange control approval, beneficial
ownership of any securities, payment of applicable taxes or
governmental charges, or legal or beneficial ownership and the
nature of such interest, information relating to the
registration of the shares on the books maintained by or on our
behalf for the transfer and registration of shares, compliance
with applicable laws, regulations, provisions of or governing
deposited securities and terms of the deposit agreement and the
ADR, as it may deem necessary or proper; and
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compliance with such regulations as the depositary may establish
consistent with the deposit agreement.
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The deposit agreement expressly limits the obligations and
liability of the depositary, ourselves and our respective
agents. Neither we nor the depositary nor any such agent will be
liable if:
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present or future law, rule or regulation of the United States,
the Cayman Islands, the Peoples Republic of China or any
other country, or of any governmental or regulatory authority or
securities exchange or market or automated quotation system, the
provisions of or governing any deposited securities, any present
or future provision of our charter, any act of God, war,
terrorism or other circumstance beyond our, the
depositarys or our respective agents control shall
prevent, delay or subject to any civil or criminal penalty any
act which the deposit agreement or the ADRs provide shall be
done or performed by us, the depositary or our respective agents
(including, without limitation, voting);
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it exercises or fails to exercise discretion under the deposit
agreement or the ADR;
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it performs its obligations without gross negligence or bad
faith;
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it takes any action or refrains from taking any action in
reliance upon the advice of or information from legal counsel,
accountants, any person presenting shares for deposit, any
registered holder of ADRs, or any other person believed by it to
be competent to give such advice or information; or
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it relies upon any written notice, request, direction or other
document believed by it to be genuine and to have been signed or
presented by the proper party or parties.
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Neither the depositary nor its agents have any obligation to
appear in, prosecute or defend any action, suit or other
proceeding in respect of any deposited securities or the ADRs.
We and our agents shall only be obligated to appear in,
prosecute or defend any action, suit or other proceeding in
respect of any deposited securities or the ADRs, which in our
opinion may involve us in expense or liability, if indemnity
satisfactory to us against all expense (including fees and
disbursements of counsel) and liability is furnished as often as
may be required. 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
registered holder or holders of ADRs, any ADSs or otherwise 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 depositary will not be responsible for failing to carry out
instructions to vote the deposited securities or for the manner
in which the deposited securities are voted or the effect of the
vote. In no event shall we, the depositary or
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any of our respective agents be liable to holders of ADSs or
interests therein for any indirect, special, punitive or
consequential damages.
The depositary may own and deal in deposited securities and in
ADSs.
Disclosure
of Interest in ADSs
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, you agree to comply with all such disclosure
requirements and ownership limitations and to comply with any
reasonable instructions we may provide in respect thereof. We
reserve the right to request you to deliver your ADSs for
cancellation and withdrawal of the deposited securities so as to
permit us to deal with you directly as a holder of deposited
securities and, by holding an ADS or an interest therein, you
will be agreeing to comply with such instructions.
Requirements
for Depositary Actions
We, the depositary or the custodian may refuse to:
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issue, register or transfer an ADR or ADRs;
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effect a
split-up or
combination of ADRs;
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deliver distributions on any such ADRs; or
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permit the withdrawal of deposited securities (unless the
deposit agreement provides otherwise), until the following
conditions have been met:
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the holder has paid all taxes, governmental charges, and fees
and expenses as required in the deposit agreement;
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the holder has provided the depositary with any information it
may deem necessary or proper, including, without limitation,
proof of identity and the genuineness of any signature; and
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the holder has complied with such regulations as the depositary
may establish under the deposit agreement.
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The depositary may also suspend the issuance of ADSs, the
deposit of shares, the registration, transfer,
split-up or
combination of ADRs, or the withdrawal of deposited securities
(unless the deposit agreement provides otherwise), if the
register for ADRs or any deposited securities is closed or the
depositary decides it is advisable to do so.
Books of
Depositary
The depositary or its agent will maintain a register for the
registration, registration of transfer, combination and
split-up of
ADRs, which register shall include the depositarys direct
registration system. You may inspect such records at such office
during regular business hours, but solely for the purpose of
communicating with other holders in the interest of business
matters relating to the deposit agreement. Such register may be
closed from time to time, when deemed expedient by the
depositary.
The depositary will maintain facilities to record and process
the issuance, cancellation, combination,
split-up and
transfer of ADRs. These facilities may be closed from time to
time, to the extent not prohibited by law.
Pre-Release
of ADSs
The depositary may issue ADSs prior to the deposit with the
custodian of shares (or rights to receive shares). This is
called a pre-release of the ADS. A pre-release is closed out as
soon as the underlying shares (or rights to
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receive shares from us or from any registrar, transfer agent or
other entity recording share ownership or transactions) are
delivered to the depositary. The depositary may pre-release ADSs
only if:
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the depositary has received collateral for the full market value
of the pre-released ADSs (marked to market daily); and
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each recipient of pre-released ADSs agrees in writing that he or
she:
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owns the underlying shares;
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assigns all rights in such shares to the depositary;
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holds such shares for the account of the depositary; and
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will deliver such shares to the custodian as soon as
practicable, and promptly if the depositary so demands (but in
any event within five business days of the depositarys
demand therefor).
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In general, the number of pre-released ADSs will not evidence
more than 30% of all ADSs outstanding at any given time
(excluding those evidenced by pre-released ADSs). However, the
depositary may 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 ADSs and its
charges for issuance thereof.
Appointment
In the deposit agreement, 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 will be deemed for all purposes to:
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be a party to and bound by the terms of the deposit agreement
and the applicable ADR or ADRs; and
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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 or
ADRs, to adopt any and all procedures necessary to comply with
applicable laws 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 and
ADRs, the taking of such actions to be the conclusive
determinant of the necessity and appropriateness thereof.
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27
PLAN OF
DISTRIBUTION
We or any selling shareholder may sell or distribute the ADSs
offered by this prospectus, from time to time, in one or more
offerings, as follows:
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through agents;
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to dealers or underwriters for resale;
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directly to purchasers; or
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through a combination of any of these methods of sale.
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The ADSs distributed by any of these methods may be sold to the
public, in one or more transactions, either:
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at a fixed price or prices, which may be changed;
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at market prices prevailing at the time of sale;
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at prices related to prevailing market prices; or
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at negotiated prices.
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Sale
through Underwriters or Dealers
If underwriters are used in the sale, the underwriters will
acquire the ADSs for their own account, including through
underwriting, purchase, security lending or repurchase
agreements with us or any selling shareholder. The underwriters
may resell the securities from time to time in one or more
transactions, including negotiated transactions. Underwriters
may offer securities to the public either through underwriting
syndicates represented by one or more managing underwriters or
directly by one or more firms acting as underwriters. Unless
otherwise indicated in the applicable prospectus supplement, the
obligations of the underwriters to purchase the ADSs will be
subject to certain conditions, and the underwriters will be
obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change from time to
time any public offering price and any discounts or concessions
allowed or reallowed or paid to dealers.
If dealers are used in the sale of ADSs offered through this
prospectus, we or any selling shareholder will sell the
securities to them as principals. They may then resell those
ADSs to the public at varying prices determined by the dealers
at the time of resale. The applicable prospectus supplement will
include the names of the dealers and the terms of the
transaction.
Direct
Sales and Sales through Agents
We or any selling shareholder may sell the ADSs offered through
this prospectus directly. In this case, no underwriters or
agents would be involved. Such ADSs may also be sold through
agents designated from time to time. The applicable prospectus
supplement will name any agent involved in the offer or sale of
the offered securities and will describe any commissions payable
to the agent. Unless otherwise indicated in the applicable
prospectus supplement, any agent will agree to use its commonly
reasonable efforts to solicit purchases for the period of its
appointment.
We or any selling shareholder may sell the ADSs directly to
institutional investors or others who may be deemed to be
underwriters within the meaning of the Securities Act with
respect to any sale of those ADSs. The terms of any such sales
will be described in the applicable prospectus supplement.
Delayed
Delivery Contracts
If the applicable prospectus supplement indicates, we or any
selling shareholder may authorize agents, underwriters or
dealers to solicit offers from certain types of institutions to
purchase ADSs at the public offering price under delayed
delivery contracts. These contracts would provide for payment
and delivery on a specified date in the future. The contracts
would be subject only to those conditions described in the
prospectus supplement. The applicable prospectus supplement will
describe the commission payable for solicitation of those
contracts.
28
Stabilization
and Other Transactions
Any underwriter may engage in stabilizing transactions,
syndicate covering transactions and penalty bids in accordance
with Rule 104 under the Exchange Act. Stabilizing
transactions involve bids to purchase the underlying security in
the open market for the purpose of pegging, fixing or
maintaining the price of the ADSs. Syndicate covering
transactions involve purchases of the ADSs in the open market
after the distribution has been completed in order to cover
syndicate short positions.
Penalty bids permit the underwriters to reclaim a selling
concession from a syndicate member when the ADSs originally sold
by the syndicate member are purchased in a syndicate covering
transaction to cover syndicate short positions. Stabilizing
transactions, syndicate covering transactions and penalty bids
may cause the price of the ADSs to be higher than it would be in
the absence of the transactions. The underwriters may, if they
commence these transactions, discontinue them at any time.
General
Information
Agents, underwriters and dealers may be entitled, under
agreements entered into with us, to indemnification by us,
against certain liabilities, including liabilities under the
Securities Act. Our agents, underwriters and dealers, or their
respective affiliates, may be customers of, engage in
transactions with or perform services for us or our affiliates,
in the ordinary course of business for which they may receive
customary compensation.
29
LEGAL
MATTERS
We are being represented by Latham & Watkins with
respect to certain legal matters as to United States federal
securities and New York state law. The validity of the ordinary
shares and legal matters as to Cayman Islands law will be passed
upon for us by Maples and Calder. We are being represented by
Commerce & Finance Law Offices with respect to legal
matters as to PRC law. Latham & Watkins may rely upon
Maples and Calder with respect to matters governed by Cayman
Islands law and Commerce & Finance Law Offices with
respect to matters governed by PRC law.
30
EXPERTS
The financial statements, and the related financial statement
schedule, incorporated in this prospectus by reference from our
annual report on
Form 20-F
for the year ended December 31, 2009, and the effectiveness
of our companys internal control over financial reporting
have been audited by Deloitte Touche Tohmatsu, an independent
registered public accounting firm, as stated in their reports,
which are incorporated herein by reference. Such financial
statements and financial statement schedule have been so
incorporated in reliance upon the reports of such firm given
upon their authority as experts in accounting and auditing.
The offices of Deloitte Touche Tohmatsu are located at
35th Floor, One Pacific Place, 88 Queensway, Hong Kong.
31
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
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Item 8.
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Indemnification
of Directors and Officers
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Cayman Islands law does not limit the extent to which a
companys articles of association may provide for
indemnification of officers and directors, except to the extent
any such provision may be held by the Cayman Islands courts to
be contrary to public policy, such as to provide indemnification
against civil fraud or the consequences of committing a crime.
Our amended and restated memorandum and articles of association
provide for indemnification of officers and directors against
all actions, proceedings, costs, charges, losses, damages and
expenses incurred in their capacities as such, except through
their own willful neglect or default.
Pursuant to the form of indemnification agreements filed as
Exhibit 10.3 to our F-1 registration statement (File
No. 333-146605),
as amended, we will agree to indemnify our directors and
officers against certain liabilities and expenses incurred by
such persons in connection with claims made by reason of their
being such a director or officer.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
persons controlling us pursuant to the foregoing provisions, we
have been informed that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
Any underwriting agreement entered into in connection with an
offering of the ADSs will also provide for indemnification of
our officers and directors in certain cases.
See Index to Exhibits beginning on
page II-5
of this registration statement.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or any decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the SEC pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set
forth in the Calculation of Registration Fee table
in the effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that:
Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section
do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in
periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act, that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
II-1
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) To file a post-effective amendment to the registration
statement to include any financial statements required by
Item 8.A. of
Form 20-F
at the start of any delayed offering or throughout a continuous
offering. Financial statements and information otherwise
required by Section 10(a)(3) of the Securities Act need not be
furnished, provided that the Registrant includes in the
prospectus, by means of a post-effective amendment, financial
statements required pursuant to this paragraph (a)(4) and other
information necessary to ensure that all other information in
the prospectus is at least as current as the date of those
financial statements. Notwithstanding the foregoing, a
post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of
the Securities Act or Rule 3-19 of
Regulation S-K
if such financial statements and information are contained in
periodic reports filed with or furnished to the SEC by the
Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this
Form F-3.
(5) That, for the purpose of determining liability under
the Securities Act to any purchaser:
(i) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the registration
statement as of the date the filed prospectus was deemed part of
and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration statement
in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the
purpose of providing the information required by
section 10(a) of the Securities Act shall be deemed to be
part of and included in the registration statement as of the
earlier of the date such form of prospectus is first used after
effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As
provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date
shall be deemed to be a new effective date of the registration
statement relating to the securities in the registration
statement to which that prospectus relates, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof. Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement
or prospectus that was part of the registration statement or
made in any such document immediately prior to such effective
date.
(6) That, for the purpose of determining liability of the
Registrant under the Securities Act to any purchaser in the
initial distribution of the securities:
The undersigned Registrant undertakes that in a primary offering
of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the
undersigned Registrant relating to the offering required to be
filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or used
or referred to by the undersigned Registrant;
II-2
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about
the undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the
offering made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act ,
each filing of the Registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act
that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to directors, officers
and controlling persons of the Registrant pursuant to the
foregoing provisions, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid
by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe
that it meets all of the requirements for filing
Form F-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in
Guangzhou, Peoples Republic of China, on July 7, 2010.
CNINSURE INC.
Name : Yinan Hu
Title : Chairman and Chief Executive Officer
POWER OF
ATTORNEY
Each person whose signature appears below constitutes and
appoints Yinan Hu as his or her true and lawful attorney-in-fact
and agent, 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 or all amendments (including
post-effective amendments) to this registration statement, and
to file the same, with all exhibits thereto, and other documents
in connection therewith, with the SEC, hereby ratifying and
confirming all that said attorney-in-fact and agent, or its
substitute or substitutes, may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities and on the dates indicated.
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Signature
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Title
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Date
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/s/ Yinan
Hu
Name:
Yinan Hu
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Chairman and Chief Executive Officer (principal executive
officer)
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July 7, 2010
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/s/ Peng
Ge
Name:
Peng Ge
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Chief Financial Officer
(principal financial and accounting officer)
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July 7, 2010
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/s/ Qiuping
Lai
Name:
Qiuping Lai
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President and Director
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July 7, 2010
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/s/ Shangzhi
Wu
Name:
Shangzhi Wu
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Director
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July 7, 2010
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/s/ Yongwei
Ma
Name:
Yongwei Ma
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Director
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July 7, 2010
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/s/ Stephen
Markscheid
Name:
Stephen Markscheid
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Director
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July 7, 2010
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/s/ Allen
Warren Lueth
Name:
Allen Warren Lueth
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Director
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July 7, 2010
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II-4
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Signature
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Title
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Date
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/s/ Mengbo
Yin
Name:
Mengbo Yin
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Director
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July 7, 2010
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/s/ Donald
J. Puglisi
Name:
Donald J. Puglisi
Managing Director,
Puglisi & Associates
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Authorized U.S. Representative
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July 7, 2010
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II-5
INDEX TO
EXHIBITS
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Exhibit
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Number
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Description of Document
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1
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.1*
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Form of Underwriting Agreement
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4
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.1
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Registrants Specimen American Depositary Receipt (included
in Exhibit 4.3)
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4
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.2
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Registrants Specimen Certificate for Ordinary Shares
(incorporated by reference to Exhibit 4.2 to our
registration statement on
Form F-1
(File
No. 333-146605),
as amended, initially filed with the Securities and Exchange
Commission on October 10, 2007)
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4
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.3
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Form of Deposit Agreement among the Registrant, the depositary
and holders of the American depositary receipts (incorporated by
reference to Exhibit 4.3 to our registration statement on
Form F-1/A
(File
No. 333-146605),
as amended, initially filed with the Securities and Exchange
Commission on October 25, 2007)
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5
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.1
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Opinion of Maples and Calder regarding the validity of the
ordinary shares
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8
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.1
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Opinion of Maples and Calder regarding certain Cayman Islands
tax matters (included in Exhibit 5.1)
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8
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.2
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Opinion of Latham & Watkins LLP regarding certain U.S.
tax matters
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8
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.3
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Opinion of Commerce & Finance Law Offices regarding
certain PRC tax matters
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23
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.1
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Consent of Deloitte Touche Tohmatsu, Independent Registered
Public Accounting Firm
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23
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.2
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Consent of Latham & Watkins LLP (included in
Exhibit 8.2)
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23
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.3
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Consent of Maples and Calder (included in Exhibit 5.1)
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23
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.4
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Consent of Commerce & Finance Law Offices (included in
Exhibit 8.3)
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24
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.1
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Powers of Attorney (included as part of the signature page in
Part II of this registration statement)
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*
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To be filed as an exhibit to a
post-effective amendment to this registration statement or as an
exhibit to a report filed under the Exchange Act and
incorporated herein by reference.
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II-6
EX-5.1
Exhibit 5.1
[Letterhead of Maples and Calder]
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Our ref
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ELB\628018\3870731v3 |
Direct
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+852 2971 3035 |
Email
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emily.brown@maplesandcalder.com |
CNinsure Inc.
21/F, Yinhai Building
No. 299 Yanjiang Zhong Road
Guangzhou, Guangdong 510110
Peoples Republic of China
7 July 2010
Dear Sir
CNinsure Inc.
We act as Cayman Islands counsel for CNinsure Inc. (the Company), a Cayman Islands company, in
connection with its registration statement on Form F-3, including all amendments or supplements
thereto (the Registration Statement), filed with the Securities and Exchange Commission (the
Commission) under the Securities Act of 1933, as amended (the Act) relating to the sale by the
Company of certain American Depositary Shares each representing 20 ordinary shares of the Company
of a par value of US$0.001 each (the shares represented by the American Depositary Shares being
sold by the Company being hereinafter referred to as the Offer Shares) and the sale by the
selling shareholder identified therein (the Selling Shareholder) of certain American Depositary
Shares each representing 20 ordinary shares of the Company of a par value of US$0.001 each (the
shares represented by the American Depositary Shares being sold by the Selling Shareholder being
hereinafter referred to as the Selling Shareholder Offer Shares).
We have reviewed originals, copies, drafts or conformed copies of the following documents (the
Documents):
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1.1 |
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the certificate of incorporation dated 10 April 2007. |
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1.2 |
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the amended and restated memorandum and articles of association of the Company as
conditionally adopted by a special resolution passed on 10 October 2007 and subsequently
amended by a special resolution passed on 19 December 2008 (the Memorandum and Articles of
Association). |
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1.3 |
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the written resolutions of the board of directors of the Company dated 7 July 2010 (the
Resolutions) and the corporate records of the Company maintained at its registered office in
the Cayman Islands; |
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1.4 |
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a certificate of good standing dated 20 May 2010 issued by the Registrar of Companies (the
Certificate of Good Standing); |
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1.5 |
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a certificate from a director of the Company dated 7 July 2010, a copy of which is annexed
hereto (the Directors Certificate); and |
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1.6 |
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the Registration Statement. |
Save as aforesaid we have not been instructed to undertake and have not undertaken any further
enquiry or due diligence in relation to the transaction the subject of this opinion. The following
opinions are given only as to and based on circumstances and matters of fact existing at the date
hereof and of which we are aware consequent upon the instructions we have received in relation to
the matter the subject of this opinion and as to the laws of the Cayman Islands as the same are in
force at the date hereof. In giving this opinion, we have relied upon the completeness and
accuracy (and assumed the continuing completeness and accuracy as at the date hereof) of the
Directors Certificate as to matters of fact and the Certificate of Good Standing without further
verification and have relied upon the following assumptions, which we have not independently
verified:
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2.1 |
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copy documents or drafts of documents provided to us are true and complete copies of, or in
the final forms of, the originals. |
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2.2 |
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the genuineness of all signatures and seals. |
The following opinions are given only as to matters of Cayman Islands law and we have assumed that
there is nothing under any other law that would affect or vary the following opinions.
Based upon the foregoing and subject to the qualifications set out below and having regard to such
legal considerations as we deem relevant, we are of the opinion that:
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3.1 |
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the Company has been duly incorporated as an exempted company with limited liability for an
unlimited duration and is validly existing and in good standing under the laws of the Cayman
Islands. |
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3.2 |
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the authorised share capital of the Company is US$10,000,000 divided into 10,000,000,000
shares of a nominal or par value of US$0.001 each. |
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3.3 |
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the Offer Shares have been duly and validly authorized and, when issued and allotted against
full payment therefor and registered in the Companys register of members as fully paid, will
be |
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validly issued, fully paid and non-assessable (meaning that no further sums are payable to
the Company on such shares). |
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3.4 |
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the Selling Shareholder Offer Shares have been duly authorized and are issued, fully paid and
non-assessable (meaning no further sums are payable to the Company with respect to the holding
of such shares). |
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3.5 |
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the statements under the caption Taxation in the prospectus forming part of the
Registration Statement, to the extent that they constitute statements of Cayman Islands law,
are accurate in all material respects and that such statements constitute our opinion. |
This opinion is subject to the following qualification and limitation that under the Companies Law
(2009 Revision) of the Cayman Islands, the register of members of a Cayman Islands company is by
statute regarded as prima facie evidence of any matters which the Companies Law (2009 Revision)
directs or authorises to be inserted therein. A third party interest in the shares in question
would not appear. An entry in the register of members may yield to a court order for rectification
(for example, in the event of fraud or manifest error).
Except as specifically stated herein, we make no comment with respect to any representations and
warranties which may be made by or with respect to the Company in the Registration Statement or
otherwise with respect to the commercial terms of the transactions that are the subject of this
opinion.
We hereby consent to the use of this opinion in, and the filing hereof as an Exhibit to, the
Registration Statement and to the reference to our name under the headings Enforceability of Civil
Liabilities, Taxation and Legal Matters and elsewhere in the prospectus included in the
Registration Statement. In giving such consent, we do not thereby admit that we come within the
category of persons whose consent is required under Section 7 of the Act or the Rules and
Regulations of the Commission thereunder.
Yours faithfully
/s/ Maples and Calder
Maples and Calder
Encl.
Annex
CNinsure Inc.
PO Box 309
Ugland House
Grand Cayman, KY1-1104
Cayman Islands
7 July 2010
Maples and Calder
53rd Floor
The Center
99 Queens Road Central
Hong Kong
Dear Sirs
CNinsure Inc. (the Company)
I, Hu Yinan, being a director of the Company, am aware that you are being asked to provide a legal
opinion (the Opinion) in relation to certain aspects of Cayman Islands law. Capitalised terms
used in this certificate have the meaning given to them in the Opinion. I hereby certify that:
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The Memorandum and Articles of Association remain in full force and effect and are unamended. |
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The Resolutions were signed by all the directors in the manner prescribed in the Articles of
Association of the Company. |
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The authorised share capital of the Company is US$10,000,000 divided into 10,000,000,000
ordinary shares of a nominal or par value of US$0.001 each and the Selling Shareholder Offer
Shares have been issued and are fully paid up and non-assessable. |
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The shareholders of the Company have not restricted or limited the powers of the directors in
any way and there is no contractual or other prohibition (other than as arising under Cayman
Islands law) binding on the Company prohibiting it from entering into and performing its
obligations under the Registration Statement. |
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The Resolutions were duly adopted, are in full force and effect at the date hereof and have
not been amended, varied or revoked in any respect. |
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The directors of the Company at the date of the Resolutions were as follows: |
Hu Yi Nan
Lai Qiu Ping
Wu Shangzhi
Stephen Markscheid
Allen Warren Lueth
Ma Yongwei
Mengbo Yin
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The minute book and corporate records of the Company as maintained at its registered office
in the Cayman Islands and made available to you are complete and accurate in all material
respects and all minutes and resolutions filed therein represent a complete and accurate
record of all meetings of the shareholders and directors (or any committee thereof) (duly
convened and held in accordance with the Articles of Association) and all resolutions passed
at the meetings, or passed by written consent as the case may be. |
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Each director considers the transactions contemplated by the Registration Statement to be of
commercial benefit to the Company and has acted bona fide in the best interests of the
Company, and for a proper purpose of the Company in relation to the transactions the subject
of the Opinion. |
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To the best of my knowledge and belief, having made due inquiry, the Company is not the
subject of legal, arbitral, administrative or other proceedings in any jurisdiction that would
have a material adverse effect on the business, properties, financial condition, results of
operations or prospects of the Company. Nor have the directors or shareholders taken any
steps to have the Company struck off or placed in liquidation, nor have any steps been taken
to wind up the Company. Nor has any receiver been appointed over any of the Companys
property or assets. |
I confirm that you may continue to rely on this Certificate as being true and correct on the day
that you issue the Opinion unless I shall have previously notified you personally to the contrary.
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Signature: |
/s/ Hu Yinan
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Hu Yinan |
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Director |
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EX-8.2
Exhibit 8.2
July 7, 2010
CNinsure Inc.
22/F, Yinhai Building
No. 299 Yanjiang Zhong Road
Guangzhou, Guangdong 510110
Peoples Republic of China
Ladies and Gentlemen:
We have acted as special U.S. counsel to CNinsure Inc., a Cayman Islands company (the
Company), in connection with the Companys filing with the Securities and Exchange Commission
(the Commission) of a registration statement on Form F-3, dated July 7, 2010, which incorporates
by reference certain documents listed therein (the Registration Statement), under the Securities
Act of 1933, as amended (the Act), relating to the registration of certain securities (the
Securities) of the Company for sale from time to time by us or for resale from time to time by
the selling shareholder identified therein.
The facts, as we understand them, and upon which with your permission we rely in rendering the
opinion herein, are set forth in the Registration Statement. In addition, in our capacity as
counsel, we have made such legal and factual examinations and inquiries as we have deemed necessary
or appropriate. In our examination, we have assumed the accuracy of all information provided to
us.
Based on such facts and subject to the qualifications, assumptions and limitations set forth
herein and in the Registration Statement, we hereby confirm that the statements in the Registration
Statement under the caption TaxationUnited States Federal Income Taxation, insofar as such
statements purport to constitute summaries of United States federal income tax law and regulations
or legal conclusions with respect thereto, constitute accurate summaries of the matters described
therein in all material respects.
No opinion is expressed as to any matter not discussed herein.
July 7, 2010
Page 2
We are opining herein as to the effect on the subject transaction only of the federal income
tax laws of the United States, and we express no opinion with respect to the applicability thereto,
or the effect thereon, of other federal laws or the laws of any state or any other jurisdiction, or
as to any other matters of municipal law or the laws of any local agencies within any state.
This opinion is rendered to you as of the date of this letter, and we undertake no obligation
to update this opinion subsequent to the date hereof. This opinion is based on current provisions
of the Internal Revenue Code of 1986, as amended, regulations promulgated thereunder, and
interpretations thereof by the Internal Revenue Service and the courts having jurisdiction over
such matters. Our opinion is not binding upon the Internal Revenue Service or the courts, and
there can be no assurance that the Internal Revenue Service will not assert a contrary position.
Furthermore, no assurance can be given that future legislative, judicial or administrative changes,
on either a prospective or retroactive basis, would not affect the conclusions stated in this
opinion.
This letter is furnished only to you and is solely for your benefit in connection with the
transaction described herein. This opinion may not be relied upon by you for any other purpose, or
furnished to, assigned to, quoted to, or relied upon by any other person, firm or other entity for
any purpose (including any person, firm or other entity that acquires Securities from you), without
our prior written consent, which may be granted or withheld in our sole discretion. We hereby
consent to your filing this opinion as an exhibit to the Registration Statement and to the
reference to our firm contained in the Registration Statement under the heading Taxation. In
giving such consent, we do not thereby admit that we are in the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
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Very truly yours,
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/s/ Latham & Watkins LLP
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EX-8.3
Exhibit 8.3
7 July, 2010
CNinsure Inc.
22/F, Yinhai Building
No.299 Yanjiang Zhong Road
Guangzhou, Guangdong 510110
Peoples Republic of China
Dear Sirs,
We are qualified lawyers of the Peoples Republic of China (the PRC) and are qualified to
issue opinions on the laws and regulations of the PRC. We have acted as PRC counsel for CNinsure
Inc., a company incorporated under the laws of the Cayman Islands (the Company), in connection
with the Companys registration statement on Form F-3 (the Registration Statement, which term
does not include any exhibits thereto) to be filed with the United States Securities and Exchange
Commission (the SEC).
For the purposes of giving this opinion, we have examined and relied upon copies of the
following draft documents:
(i) the Registration Statement; and
(ii) the Prospectus (the Prospectus) contained in the Registration Statement.
We have assumed (i) the genuineness and authenticity of all signatures, stamps and seals and
the conformity to the originals of all copies of documents (whether or not certified) examined by
us and the authenticity and completeness of the originals from which such copies were taken; (ii)
the accuracy and completeness of all factual representations made in the Registration Statement and
the Prospectus and other documents reviewed by us, (iii) that there is no provision of the law of
any jurisdiction, other than PRC, which would have any implication in relation to the opinions
expressed herein; (iv) the validity and binding effect under the laws of the United States of
America of the Registration Statement and the Prospectus and that the Registration Statement will
be duly filed with or declared effective by the SEC; and (v) that the Prospectus, when published,
will be in substantially the same form as that examined by us for purposes of this opinion.
We have made no investigation of and express no opinion in relation to the laws of any
jurisdiction other than PRC. This opinion is to be governed by and construed in accordance with the
laws of PRC and is limited to and is given on the basis of the current law and practice in PRC.
On the basis of and subject to the foregoing, we are of the opinion that the statements
relating to certain PRC tax matters set forth under the caption Taxation PRC Taxation in the
Companys Prospectus, is true and accurate based on current PRC law and practice at the date of
this letter and that such statements constitute our opinion.
We hereby consent to the filing of this opinion with the SEC as an exhibit to the Registration
Statement and to the references to us under the caption Enforceability of Civil Liabilities in
the Prospectus. In giving such consent, we do not thereby admit that we come within the category of
persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the
regulations promulgated thereunder.
Very truly yours,
/s/ Commerce & Finance Law Offices
Commerce & Finance Law Offices
exv23w1
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form F-3 of our
reports dated May 7, 2010 relating to the consolidated financial statements and the related
financial statement schedule of CNinsure Inc., its subsidiaries and variable interest entities
(collectively the Group) (which report expresses an unqualified opinion and includes an
explanatory paragraph relating to the translation of Renminibi amounts into U.S. dollar amounts for
the convenience of the readers) and the effectiveness of the Groups internal control over
financial reporting, appearing in the Annual Report on Form 20-F of the Group for the year ended
December 31, 2009, and to the reference to us under the heading Experts in the Prospectus, which
is part of this Registration Statement.
/s/
Deloitte Touche Tohmatsu
Deloitte Touche Tohmatsu
Hong Kong
July 7, 2010