Exhibit 1.1

 

19,200,000 Shares

OPERA LIMITED

 

ORDINARY SHARES, PAR VALUE US$0.0001 PER SHARE
IN THE FORM OF AMERICAN DEPOSITARY SHARES

 

UNDERWRITING AGREEMENT

 

 

[Date]

 

China International Capital Corporation Hong Kong Securities Limited

29th Floor, One International Finance Centre

1 Harbour View Street

Central, Hong Kong

 

Citigroup Global Markets Inc.

388 Greenwich Street

New York, NY 10013 

United States

 

As Representatives of the several Underwriters named in Schedule I hereto

 

Ladies and Gentlemen:

 

Opera Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Company”), proposes to issue and sell to the several Underwriters named in Schedule I hereto (the “Underwriters”) an aggregate of 19,200,000 ordinary shares, par value US$0.0001 per share, of the Company (the “Firm Shares”) in the form of 9,600,000 American Depositary Shares (as defined below).

 

The Company also proposes to issue and sell to the several Underwriters not more than an additional 2,880,000 ordinary shares, par value US$0.0001 per share, of the Company (the “Additional Shares”) in the form of 1,440,000 American Depositary Shares, if and to the extent that China International Capital Corporation Hong Kong Securities Limited and Citigroup Global Markets Inc., as representatives of the Underwriters (collectively, the “Representatives”), exercise, on behalf of the Underwriters, the right to purchase such Additional Shares granted to the Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter collectively referred to as the “Shares.” The ordinary shares, par value US$0.0001 per share, of the Company to be issued, outstanding after giving effect to the sales contemplated hereby are hereinafter referred to as the “Ordinary Shares.”

 

The Underwriters will take delivery of the Shares in the form of American Depositary Shares (the “American Depositary Shares” or “ADSs”). The American Depositary Shares are to be issued pursuant to a Deposit Agreement dated as of [date], 2018 (the “Deposit Agreement”) among the Company, The Bank of New York Mellon, as Depositary (the “Depositary”), and the owners and holders from time to time of the American Depositary Shares issued under the Deposit Agreement. Each American Depositary Share will initially represent the right to receive two Ordinary Shares deposited pursuant to the Deposit Agreement.

 

The Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement, including a prospectus, relating to the Shares and a registration statement relating to the American Depositary Shares. The registration statement relating to the Shares, as amended at the time it becomes effective, including the information (if any) deemed to be part of the registration statement at the time of effectiveness pursuant to Rule 430A under the U.S. Securities Act of 1933, as amended (the “Securities Act”), is hereinafter referred to as the “Registration Statement;” the prospectus in the form first used to confirm sales of Shares (or in the form first made available to the Underwriters by the Company to meet requests of purchasers pursuant to Rule 173 under the Securities Act) is hereinafter referred to as the “Prospectus.” The registration statement relating to the American Depositary Shares, as amended at the time it becomes effective, is hereinafter referred to as the “ADS Registration Statement.” If the Company has filed abbreviated registration statements to register additional Ordinary Shares or American Depositary Shares pursuant to Rule 462(b) under the Securities Act (the “Rule 462 Registration Statements”), then any reference herein to the terms “Registration Statement” and “ADS Registration Statement” shall be deemed to include the corresponding Rule 462 Registration Statement. The Company has filed, in accordance with Section 12 of the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), a registration statement on Form 8-A to register the Shares and the American Depositary Shares (the “Form 8-A Registration Statement”).

 

 

For purposes of this Agreement, “free writing prospectus” has the meaning set forth in Rule 405 under the Securities Act, “Time of Sale Prospectus” means the preliminary prospectus together with the documents and pricing information set forth in Schedule II hereto, and a “bona fide electronic road show” is as defined in Rule 433(h)(5) under the Securities Act that has been made available without restriction to any person. As used herein, the terms “Registration Statement,” “preliminary prospectus,” “Time of Sale Prospectus” and “Prospectus” shall include the documents, if any, incorporated by reference therein as of the date hereof.

 

China International Capital Corporation Hong Kong Securities Limited (the “Designated Underwriter”) agrees to reserve a portion of the American Depositary Shares to be purchased by it or its affiliates under this Agreement for sale to the Company’s directors, officers, employees and business associates and other parties related to the Company (collectively, “Participants”), as set forth in the Prospectus under the heading “Underwriting” (the “Directed Share Program”). The American Depositary Shares to be sold by the Designated Underwriter and its affiliates pursuant to the Directed Share Program are referred to hereinafter as the “Directed American Depositary Shares.” Any Directed American Depositary Shares not orally confirmed for purchase by any Participant by the end of the business day on which this Agreement is executed will be offered to the public by the Underwriters as set forth in the Prospectus.

 

1.          Representations and Warranties.

 

The Company represents and warrants to and agrees with each of the Underwriters that:

 

(a)          Effectiveness of Registration Statement. Each of the Registration Statement and the ADS Registration Statement has become effective under the Securities Act; no stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement or any post-effective amendment thereto is in effect, and no proceedings for such purpose are pending before or threatened by the Commission. The Form 8-A Registration Statement has become effective as provided in Section 12 of the Exchange Act. The Company has complied with each request (if any) from the Commission for additional information.

 

 

 

(b)          Compliance with Securities Law. (i) Each of the Registration Statement, the ADS Registration Statement and the Form 8-A Registration Statement, when it became effective, did not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (ii) the Registration Statement and the ADS Registration Statement at the time it became effective, the Closing Date (as defined in Section 4 hereof) and any Option Closing Date (as defined in Section 4 hereof) comply and, as amended or supplemented, if applicable, will comply in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder, each Time of Sale Prospectus, the Prospectus and any amendment or supplement thereto, at the time each was filed with the Commission, and, in each case, the Closing Date and any Option Closing Date complied and will comply the Securities Act and the applicable rules and regulations of the Commission thereunder, and each Time of Sale Prospectus delivered to the Underwriters for use in connection with this offering and the Prospectus was or will be identical to the electronically transmitted copies thereof filed with the Commission on its Electronic Data Gathering, Analysis and Retrieval system or any successor system (“EDGAR”), except to the extent permitted by Regulation S-T, (iii) the Time of Sale Prospectus does not, and at the time of each sale of the American Depositary Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers and at the Closing Date and each Option Closing Date, the Time of Sale Prospectus, as then amended or supplemented by the Company, if applicable, will not, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, (iv) each bona fide electronic road show, if any, when considered together with the Time of Sale Prospectus, does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (v) the Prospectus does not contain and, as amended or supplemented, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this paragraph do not apply to statements or omissions in the Registration Statement, the Time of Sale Prospectus or the Prospectus based upon information furnished to the Company in writing by such Underwriter through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by any Underwriter consists of the Underwriter Information described as such in Section 9(b) hereof.

 

(c)          Ineligible Issuer Status and Issuer Free Writing Prospectus. The Company is not an “ineligible issuer” in connection with the offering pursuant to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus that the Company is required to file pursuant to Rule 433(d) under the Securities Act has been, or will be, filed with the Commission in accordance with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Each free writing prospectus that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act or that was prepared by or on behalf of or used or referred to by the Company complies or will comply in all material respects with the requirements of the Securities Act and the applicable rules and regulations of the Commission thereunder. Except for the free writing prospectuses, if any, identified in Schedule II hereto, and electronic road shows, if any, furnished to the Representatives before first use, the Company has not prepared, used or referred to, and will not, without the prior consent of the Representatives, prepare, use or refer to, any free writing prospectus. The Company has satisfied and agrees that it will satisfy the conditions in Rule 433 to avoid a requirement to file with the Commission any electronic road show. As of the time of each sale of the American Depositary Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, no free writing prospectuses, when considered together with the Time of Sale Prospectus, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

 

(d)          EGC Status and Testing-the-Waters Communication. (i) From the time of initial confidential submission of the Registration Statement to the Commission (or, if earlier, the first date on which the Company engaged directly or through any person authorized to act on its behalf in any Testing-the-Waters Communication) through the date hereof, the Company has been and is an “emerging growth company,” as defined in Section 2(a) of the Securities Act (an “Emerging Growth Company”). “Testing-the-Waters Communication” means any oral or written communication with potential investors undertaken in reliance on Section 5(d) of the Securities Act. (ii) The Company (A) has not alone engaged in any Testing-the-Waters Communication other than Testing-the-Waters Communications with the consent of the Representatives with entities that are qualified institutional buyers within the meaning of Rule 144A under the Securities Act or institutions that are accredited investors within the meaning of Rule 501 under the Securities Act, and (B) has not authorized anyone other than the Representatives to engage in Testing-the-Waters Communications. The Company reconfirms that the Representatives have been authorized to act on its behalf in undertaking Testing-the-Waters Communications. (iii) Except for the management presentation materials, a copy of which was submitted to the SEC on May 8, 2018, the Company has not distributed any other Written Testing-the-Waters Communications. “Written Testing-the-Waters Communication” means any Testing-the-Waters Communication that is a written communication within the meaning of Rule 405 under the Securities Act. As of the time of each sale of the American Depositary Shares in connection with the offering when the Prospectus is not yet available to prospective purchasers, no individual Written Testing-the-Waters Communications, when considered together with the Time of Sale Prospectus, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

(e)          Good Standing of the Company. The Company has been duly incorporated, is validly existing as an exempted company with limited liability in good standing under the laws of the Cayman Islands, has the corporate power and authority to own or lease its property and to conduct its business as described in the Time of Sale Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification. The currently effective memorandum and articles of association or other constitutive or organizational documents of the Company comply with the requirements of applicable Cayman Islands law and are in full force and effect. The second amended and restated memorandum and articles of association of the Company adopted on July 13, 2018, filed as Exhibit 3.2 to the Registration Statement, comply with the requirements of applicable Cayman Islands laws and, immediately following closing on the Closing Date of the American Depositary Shares offered and sold hereunder, will be in full force and effect. Complete and correct copies of all constitutive documents of the Company and all amendments thereto have been delivered to the Representatives; except as set forth in the exhibits to the Registration Statements, no change will be made to any such constitutive documents on or after the date of this Agreement through and including the Closing Date.

 

 

(f)          Subsidiaries. Each of the Company’s direct and indirect subsidiaries (each a “Subsidiary” and collectively, the “Subsidiaries”) has been identified on Schedule III hereto. Each of the Subsidiaries has been duly incorporated, is validly existing as a corporation with limited liability and, where its jurisdiction of incorporation recognizes such qualification, in good standing under the laws of the jurisdiction of its incorporation, has full corporate or other requisite power and authority to own its property and to conduct its business as described in the Time of Sale Prospectus, and is duly qualified to transact business, and to the extent applicable, is in good standing in each jurisdiction in which the conduct of its business or its ownership or leasing of property requires such qualification, except for such qualification that would not have a Material Adverse Effect; all of the equity interests of each Subsidiary have been duly and validly authorized and issued, are owned directly or indirectly by the Company, are fully paid in accordance with its articles of association and non-assessable and are free and clear of all liens, encumbrances, equities or claims. None of the issued outstanding share capital or equity interest in any Subsidiary was issued in violation of preemptive or similar rights of any security holder of such Subsidiary. All of the constitutive or organizational documents of each of the Subsidiaries comply with the requirements of applicable laws of its jurisdiction of incorporation or organization and are in full force and effect. Apart from the Subsidiaries, the Company has no direct or indirect subsidiaries or any other company over which it has direct or indirect effective control. A “Material Adverse Effect” means a material adverse effect on the condition (financial or otherwise), earnings, results of operations, business or prospects of the Company and its Subsidiaries, taken as a whole, or on the ability of the Company and its Subsidiaries to carry out their obligations under this Agreement and the Deposit Agreement.

 

(g)          Corporate Structure. The description of the corporate structure of the Company, as set forth in the Time of Sale Prospectus under the caption “Corporate History and Structure”, is true and accurate in all material respects and nothing has been omitted from such description which would make it misleading. There is no material agreement, contract or other document relating to the corporate structure or the operation of the Company together with its Subsidiaries taken as a whole, which has not been previously disclosed or made available to the Underwriters and disclosed in the Time of Sale Prospectus and the Prospectus.

 

(h)          Authorization of this Agreement. This Agreement has been duly authorized, executed and delivered by the Company.

 

 

(i)          Authorization of the Deposit Agreement. The Deposit Agreement has been duly authorized, executed and delivered by the Company and assuming due authorization, execution and delivery by the Depositary, constitutes a valid and legally binding obligation of the Company, enforceable in accordance with its terms, subject, as to enforceability, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles. The description of this Agreement and the description of the Deposit Agreement contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus is true and accurate in all material respects.

 

(j)          Due Authorization of Registration Statements. The Registration Statement, the preliminary prospectus, the Prospectus, any issuer free writing prospectus and the ADS Registration Statement and the filing of the Registration Statement, the Prospectus, any issuer free writing prospectus and the ADS Registration Statement with the Commission have been duly authorized by and on behalf of the Company, and the Registration Statement and the ADS Registration Statement have been duly executed pursuant to such authorization by and on behalf of the Company.  

 

(k)          Share Capital. The authorized share capital of the Company conforms as to legal matters to the description thereof contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.

 

(l)          Ordinary Shares. (i) The Ordinary Shares issued outstanding prior to the issuance of the Shares have been duly authorized and are validly issued, fully paid and non-assessable. As of the date hereof, the Company has authorized, issued and outstanding capitalization as set forth in the sections of the Time of Sale Prospectus and the Prospectus under the headings “Capitalization” and “Description of Share Capital” and, as of the Closing Date, the Company shall have authorized, issued and outstanding capitalization as set forth in the sections of the Time of Sale Prospectus and the Prospectus under the headings “Capitalization” and “Description of Share Capital.” (ii) Except as described in the Time of Sale Prospectus and the Prospectus, there are (A) no outstanding securities issued by the Company convertible into or exchangeable for, rights, warrants or options to acquire from the Company, or obligations of the Company to issue, Ordinary Shares or any of the share capital of the Company, and (B) no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any share capital of, or any direct interest in, any of the Company’s Subsidiaries.

 

(m)          American Depositary Shares. The American Depositary Shares, when issued by the Depositary against the deposit of Shares in respect thereof in accordance with the provisions of the Deposit Agreement, will be duly authorized, validly issued and the persons in whose names such American Depositary Shares are registered will be entitled to the rights of registered holders of American Depositary Shares specified therein and in the Deposit Agreement.

 

(n)          Shares. (i) The Shares to be sold by the Company have been duly authorized and, when issued and allotted in accordance with the terms of this Agreement and registered in the register of members of the Company, will be validly issued, fully paid and non-assessable, and the issuance of such Shares will not be subject to any preemptive rights, resale rights, rights of first refusal or similar rights. The Shares, when issued and allotted against payment therefor in accordance with the terms of this Agreement, will be free of any restriction upon the voting or transfer thereof pursuant to the Company’s constitutive documents or any agreement or other instrument to which the Company is a party. (ii) The Shares, when issued, are freely transferable by the Company to or for the account of the several Underwriters and the initial purchasers thereof, and, except as described in the Time of Sale Prospectus, the Prospectus and the memorandum and articles of association, there are no restrictions on subsequent transfers of the Shares under the laws of the Cayman Islands, Norway, Ireland, the PRC by non-PRC resident holders, Hong Kong or the United States.

 

 

(o)          Accurate Disclosure. The statements in the Time of Sale Prospectus and the Prospectus under the headings “Prospectus Summary,” “Risk Factors,” “Dividend Policy,” “Enforceability of Civil Liabilities,” “Corporate History and Structure,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business,” “Management,” “Principal Shareholders,” “Related Party Transactions,” “Description of Share Capital,” “Description of American Depositary Shares,” “Shares Eligible for Future Sale,” “Taxation” and “Underwriting,” insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate, complete and fair summaries of such matters described therein in all material respects.

 

(p)          Listing. The American Depositary Shares have been approved for listing on the NASDAQ, subject to official notice of issuance.

 

(q)          Compliance with Law, Constitutive Documents and Contracts. Except as described in the Time of Sale Prospectus and the Prospectus, neither the Company nor any of the Subsidiaries is (i) in breach or violation of any provision of applicable law or (ii) is in material breach or violation of its respective constitutive documents, or (iii) in default under (nor has any event occurred which, with notice, lapse of time or both, would result in any breach or violation of, constitute a default under or give the holder of any indebtedness (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a part of such indebtedness under) any agreement or other instrument that is (x) binding upon the Company or any of the Subsidiaries and (y) material to the Company and the Subsidiaries taken as a whole, or any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of the Subsidiaries; except in the case of (i) and (iii) above, where such breach or violation would not have a Material Adverse Effect.

 

(r)          Absence of Defaults and Conflicts Resulting from Transaction. The execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement and the Deposit Agreement will not contravene (i) any provision of applicable law or the memorandum and articles of association or other constitutive documents of the Company, (ii) any agreement or other instrument binding upon the Company or any of the Subsidiaries that is material to the Company and the Subsidiaries, taken as a whole, or (iii) any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any of the Subsidiaries; and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement or the Deposit Agreement, except such as may be required by the securities or Blue Sky laws of the various states of the United States of America in connection with the offer and sale of the Shares or the American Depositary Shares or otherwise described in the Time of Sale Prospectus and the Prospectus.

 

 

(s)          No Material Adverse Change in Business. Since the end of the period covered by the latest audited financial statements included in the Registration Statement, the Time of Sale Prospectus and the Prospectus (i) there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and its Subsidiaries, taken as a whole; (ii) except as disclosed in the Time of Sale Prospectus and the Prospectus, there has been no purchase of its own issued outstanding share capital by the Company, no dividend or distribution of any kind declared, paid or made by the Company on any class of its share capital; (iii) there has been no material adverse change in the share capital, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and its Subsidiaries; (iv) neither the Company nor any of its Subsidiaries has (A) entered into or assumed any material transaction or agreement, (B) incurred, assumed or acquired any material liability or obligation, direct or contingent, (C) acquired or disposed of or agreed to acquire or dispose of any business or any other material asset, or (D) agreed to take any of the foregoing actions; and (v) neither the Company nor any of its Subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood, typhoon, or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree.

 

(t)          No Pending Proceedings. There are no legal or governmental proceedings pending or threatened (including any inquiries or investigations by any court or governmental agency or body, domestic or foreign) to which the Company, any of its Subsidiaries or any of its executive officers, directors and key employees is a party or to which any of the properties of the Company or any of its Subsidiaries is subject (i) other than proceedings that would not have a Material Adverse Effect, or on the power or ability of the Company to perform its obligations under this Agreement or to consummate the transactions contemplated by the Time of Sale Prospectus or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described; and there are no statutes, regulations, contracts or other documents that are required to be described in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required.  

 

(u)          Preliminary Prospectuses. Each preliminary prospectus filed as part of the registration statement as originally filed or as part of any amendment thereto, or filed pursuant to Rule 424 under the Securities Act, complied when so filed in all material respects with the Securities Act and the applicable rules and regulations of the Commission thereunder.

 

(v)         Investment Company Act. The Company is not, and after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Time of Sale Prospectus and the Prospectus will not be, required to register as an “investment company” as such term is defined in the Investment Company Act of 1940, as amended (the “1940 Act”).

 

 

(w)          Registration Rights; Lock-up Letters. Except as disclosed in the Time of Sale Prospectus and the Prospectus, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any securities of the Company owned or to be owned by such person or to require the Company to include such securities in the securities registered pursuant to the Registration Statement or in any securities being registered pursuant to any other registration statement filed by the Company under the Securities Act (collectively, “registration rights”), and any person to whom the Company has granted registration rights has agreed not to exercise such rights until after the expiration of the Restricted Period referred to in Section 6(x) hereof. Each officer, director and shareholder of the Company and each of Bitmain, IDG Capital Fund and IDG Capital Investors has furnished to the Representatives on or prior to the date hereof a letter or letters substantially in the form of Exhibit A hereto (the “Lock-Up Letter”).

 

(x)          Compliance with Anti-Corruption Laws. Neither the Company nor any of its Subsidiaries or their respective affiliates, nor any director, officer or employee thereof nor, to the Company’s knowledge, any agent or representative of the Company or of any of its Subsidiaries or their respective affiliates, has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment, giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to induce such government official to do or omit to do any act in violation of his lawful duties, influence official action or secure, obtain or retain business or any other improper advantage; (iii) made, offered, agreed, requested or taken an act in furtherance of any unlawful bribe or other unlawful benefit, including, without limitation, any rebate, payoff, influence payment, kickback or other unlawful or improper payment or benefit; or (iv) will use, directly or indirectly, the proceeds of the offering in furtherance of an offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else of value, to any person in violation of the Norwegian Penal Code, the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, the Anti-Unfair Competition Law of the PRC, the Criminal Law of the PRC, or any applicable anti-corruption laws (collectively, the “Anti-Corruption Laws”); and the Company and its Subsidiaries and affiliates have conducted their businesses in compliance with Anti-Corruption Laws and have instituted, maintained and enforced, and will continue to maintain and enforce, policies and procedures reasonably designed to promote and achieve compliance with such laws and with the representations and warranties contained herein; no investigation, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Anti-Corruption Laws is pending or, to the best knowledge of the Company, threatened.

 

(y)          Compliance with Anti-Money Laundering Laws. The operations of the Company and its Subsidiaries are and have been conducted at all times in compliance with all applicable financial recordkeeping and reporting requirements, including those of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of all jurisdictions where the Company and its Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no investigation, action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.  

 

 

(z)          Compliance with Economic Sanctions. (i) Neither the Company nor any of its Subsidiaries, nor any director, officer or employee thereof, nor, to the knowledge of the Company, any agent, affiliate or representative of the Company or any of its Subsidiaries, is an individual or entity (“Person”) that is, or is owned or controlled by one or more Persons that are:

 

(A)

the subject of any sanctions administered or enforced by the U.S. government, including but not limited to the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), the United Nations Security Council (“UNSC”), the European Union (“EU”), Her Majesty’s Treasury (“HMT”), or other relevant sanctions authority (collectively, “Sanctions”), nor

 

(B)

located, organized or resident in, or a national, governmental entity or agent of, a country or territory that is, the subject of Sanctions (including, without limitation, Crimea, Cuba, Iran, North Korea, Sudan and Syria).

 

(ii)

The Company represents and covenants that the Company and its Subsidiaries will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person:

 

(A)

to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is, or whose government is, the subject of Sanctions; or

 

(B)

in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering, whether as underwriter, advisor, investor or otherwise).

 

(iii)

The Company represents and covenants that, for the past five years, the Company and its Subsidiaries have not knowingly engaged in, are not now engaged in, and will not knowingly engage in, any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

 

 

(aa)         Title to Property. (i) The Company and its Subsidiaries do not own any real property; (ii) each of the Company and its Subsidiaries has good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects except such as do not materially affect the value of such property and do not interfere with the use made and proposed to be made of such property by the Company and its Subsidiaries ; and (iii) any buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by the Company and its Subsidiaries.

 

(bb)         Company IT System. The Company reasonably believes that (i) the Company, its subsidiaries own or have a valid right to access and use all computer systems, networks, hardware, software, databases, websites, and equipment used to process, store, maintain and operate data, information, and functions used in connection with the business of the Company, its Subsidiaries (the “Company IT Systems”) in all material respects, (ii) the Company IT Systems are adequate for, and operate and perform as required in connection with, the operation of the business of the Company, its subsidiaries as currently conducted in all material respects and (iii) the Company and its subsidiaries have implemented reasonable backup, security and disaster recovery technology consistent with applicable regulatory standards;

 

(cc)         Possession of Intellectual Property. Except as described in the Time of Sale Prospectus, the Company and its Subsidiaries own, possess, or have been authorized to use, or can acquire on reasonable terms sufficient trademarks, trade names, patent rights, copyrights, domain names, licenses, approvals, trade secrets, inventions, technology, know-how and other intellectual property and similar rights, including registrations and applications for registration thereof (collectively, “Intellectual Property Rights”) necessary or material to the conduct of the business now conducted in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and the expected expiration of any such Intellectual Property Rights would not, individually or in the aggregate, have a Material Adverse Effect. Except as disclosed in the Time of Sale Prospectus and the Prospectus, (i) there are no rights of third parties to any of the Intellectual Property Rights owned by the Company or its Subsidiaries; (ii) there is no infringement, misappropriation breach, default or other violation, or the occurrence of any event that with notice or the passage of time would constitute any of the foregoing, by the Company or its Subsidiaries or third parties of any of the Intellectual Property Rights of the Company or its Subsidiaries; (iii) there is no pending or threatened action, suit, proceeding or claim by others challenging the Company’s or the Subsidiaries’ rights in or to, or the violation of any of the terms of, any of their Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (iv) there is no pending or threatened action, suit, proceeding or claim by others challenging the validity, enforceability or scope of any such Intellectual Property Rights, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (v) there is no pending or threatened action, suit, proceeding or claim by others that the Company, any Subsidiary or any Affiliated Entity infringes, misappropriates or otherwise violates or conflicts with any Intellectual Property Rights or other proprietary rights of others and the Company is unaware of any other fact which would form a reasonable basis for any such claim; and (vi) none of the Intellectual Property Rights used by the Company or its Subsidiaries in their businesses has been obtained or is being used by the Company or its Subsidiaries in violation of any contractual obligation binding on the Company or its Subsidiaries in violation of the rights of any persons, except in each case covered by clauses (i) – (vi) such as would not, if determined adversely to the Company or its Subsidiaries, individually or in the aggregate, have a Material Adverse Effect. 

 

 

(dd)         Merger or Consolidation. Except as described in the Time of Sale Prospectus, neither the Company nor any of its Subsidiaries is a party to any effective memorandum of understanding, letter of intent, definitive agreement or any similar agreements with respect to a merger or consolidation or an acquisition or disposition of assets, technologies, business units or businesses which is required to be described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and which is not so described.

 

(ee)         Termination of Contracts. Neither the Company nor any of its Subsidiaries has sent or received any communication regarding termination of, or intent not to renew, any of the contracts or agreements referred to or described in the Time of Sale Prospectus and the Prospectus or filed as an exhibit to the Registration Statement, and no such termination or non-renewal has been threatened by the Company or any of its Subsidiaries, or to the best knowledge of the Company, any other party to any such contract or agreement.

 

(ff)         Absence of Labor Dispute; Compliance with Labor Law. No labor dispute with the employees or third-party contractors of the Company or any of its Subsidiaries exists, or to the best knowledge of the Company, is imminent; and the Company is not aware of any existing, threatened or imminent labor disturbance by the employees of any of the principal suppliers, service providers or business partners of the Company and its Subsidiaries that could have a Material Adverse Effect. The Company and its Subsidiaries are and have been in all times in compliance with all applicable labor laws and regulations in all material respects, and no governmental investigation or proceedings with respect to labor law compliance exists, or to the best knowledge of the Company, is imminent.

 

(gg)         Insurance. Each of the Company and its Subsidiaries are insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; neither the Company nor any of its Subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its Subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost.

 

(hh)         Possession of Licenses and Permits. Except as disclosed in the Time of Sale Prospectus and the Prospectus, (i) each of the Company and its Subsidiaries possesses all licenses, certificates, authorizations, declarations and permits issued by, and has made all necessary reports to and filings with, the appropriate national, local or foreign regulatory authorities having jurisdiction over the Company and each of its Subsidiaries and their respective assets and properties, for the Company and each of its Subsidiaries that are necessary to conduct their respective businesses; (ii) each of the Company and its Subsidiaries is in compliance with the terms and conditions of all such licenses, certificates, authorizations and permits; (iii) such licenses, certificates, authorizations and permits are valid and in full force and effect and contain no burdensome restrictions or conditions not described in the Time of Sale Prospectus or the Prospectus; (iv) neither the Company nor any of its Subsidiaries has received any notice of proceedings relating to the revocation or modification of any such license, certificate, authorization or permit; (v) neither the Company nor any of its Subsidiaries has any reason to believe that any such license, certificate, authorization or permit will not be renewed in the ordinary course; except in the case of (i) and (v) above, where such failure to possess, file or renew would not have a Material Adverse Effect.

 

 

(ii)         Related Party Transactions. No material relationships or material transactions, direct or indirect, exist between any of the Company or its Subsidiaries on the one hand and their respective shareholders, affiliates, officers and directors or any affiliates or family members of such persons on the other hand, except as described in the Time of Sale Prospectus and the Prospectus.

 

(jj)         PFIC Status. Based on the Company’s current income and assets and projections as to the value of its assets and the market value of its American Depositary Shares, including the current and anticipated valuation of its assets, the Company believes that it was not a Passive Foreign Investment Company (“PFIC”) within the meaning of Section 1297 of the United States Internal Revenue Code of 1986, as amended, for its most recent taxable year and does not expect to be a PFIC for its current taxable year or in the foreseeable future.

 

(kk)         No Transaction or Other Taxes. No transaction, stamp, capital or other documentary, issuance, registration, transaction, transfer, withholding, or other similar taxes or duties are payable by or on behalf of the Underwriters to the government of Norway, Ireland, the PRC, Hong Kong or Cayman Islands or any political subdivision or taxing authority thereof in connection with (i) the creation, allotment, issuance, and sale of the Shares by the Company or the deposit of the Shares with the Depositary and the Custodian, as defined in the Deposit Agreement (the “Custodian”), the issuance of the American Depositary Shares by the Depositary, and the delivery of the American Depositary Shares to or for the account of the Underwriters, (ii) the purchase from the Company of the Shares and the initial sale and allotment of the American Depositary Shares representing the Shares to purchasers thereof by the Underwriters, or (iii) the execution, delivery or performance of this Agreement or the Deposit Agreement; except that Cayman Islands and PRC stamp duty may be payable in the event that this Agreement or the Deposit Agreement is executed in or brought within the jurisdiction of the Cayman Islands or the PRC, as applicable.

 

(ll)           Independent Accountants. KPMG AS, whose reports on the consolidated financial statements of the Company are included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, are independent registered public accountants with respect to the Company as required by the Securities Act and by the rules of the Public Company Accounting Oversight Board. 

 

 

(mm)       Financial Statements. The financial statements included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, together with the related notes and schedules thereto, present fairly the consolidated financial position of the Company and the Subsidiaries as of the dates indicated and the consolidated results of operations, cash flows and changes in equity of the Company for the periods specified and have been prepared in compliance as to form in all material respects with the applicable accounting requirements of the Securities Act and the related rules and regulations adopted by the Commission and in conformity with the International Financial Reporting Standards applied on a consistent basis during the periods involved; the other financial data contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Company; there are no financial statements (historical or pro forma) that are required to be included in the Registration Statement, the Time of Sale Prospectus or the Prospectus that are not included as required; and the Company and the Subsidiaries do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations) not described in the Registration Statement, the Time of Sale Prospectus and the Prospectus.  

 

(nn)         Critical Accounting Policies. The section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the Time of Sale Prospectus and the Prospectus accurately and fairly describes (i) the accounting policies that the Company believes are the most important in the portrayal of the Company’s financial condition and results of operations and that require management’s most difficult subjective or complex judgment; (ii) the material judgments and uncertainties affecting the application of critical accounting policies and estimates; (iii) the likelihood that materially different amounts would be reported under different conditions or using different assumptions and an explanation thereof; (iv) all material trends, demands, commitments and events known to the Company, and uncertainties, and the potential effects thereof, that the Company believes would materially affect its liquidity and are reasonably likely to occur; and (v) all off-balance sheet commitments and arrangements of the Company and its Subsidiaries, if any. The Company’s directors and management have reviewed and agreed with the selection, application and disclosure of the Company’s critical accounting policies as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and have consulted with its independent accountants with regards to such disclosure.

 

(oo)         Internal Controls and Compliance with the Sarbanes-Oxley Act. Except as disclosed in the Time of Sale Prospectus and the Prospectus, the Company maintains a system of internal controls, including, but not limited to, disclosure controls and procedures, internal controls over accounting matters and financial reporting and legal and regulatory compliance controls (collectively, “Internal Controls”) which are sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with the International Financial Reporting Standards and to maintain asset accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization, and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Time of Sale Prospectus and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been (i) no material weakness in the Company’s internal control over financial reporting (whether or not remediated) and (ii) no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

 

 

(pp)         Absence of Accounting Issues. The Company has not received any notice, oral or written, from the Board stating that it is reviewing or investigating, and neither the Company’s independent auditors nor its internal auditors have recommended that the Board review or investigate, (i) adding to, deleting, changing the application of, or changing the Company’s disclosure with respect to, any of the Company’s material accounting policies or (ii) any matter which could result in a restatement of the Company’s financial statements for any annual or interim period during the current or prior two fiscal years.

 

(qq)         Operating and Other Company Data. All operating and other Company data disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, including but not limited to MAU, average MAU, average user time spent, page views, minutes of video viewing, are true and accurate in all material respects.

 

(rr)         Third-party Data. Any statistical, industry-related and market-related data included in the Registration Statement, the Time of Sale Prospectus or Prospectus are based on or derived from sources that the Company reasonably and in good faith believes to be reliable and accurate, and such data agree with the sources from which they are derived, and the Company has obtained the written consent for the use of such data from such sources to the extent required.

 

(ss)         Registration Statement Exhibits. There are no legal or governmental proceedings or contracts or other documents of a character required to be described in the Registration Statement, the ADS Registration Statement or the Form 8-A Registration Statement or, in the case of documents, to be filed as exhibits to the Registration Statement, that are not described or filed as required.

 

(tt)         No Unapproved Marketing Documents. The Company has not distributed and, prior to the later to occur of any delivery date and completion of the distribution of the Shares, will not distribute any offering material in connection with the offering and sale of the Shares other than the preliminary prospectus filed as part of the Registration Statement or as part of any amendment thereto, the Prospectus and any issuer free writing prospectus to which the Representatives have consented, as set forth on Schedule II hereto.

 

(uu)         Payments of Dividends; Payments in Foreign Currency. Except as described in the Time of Sale Prospectus and Prospectus, (i) none of the Company nor any of its Subsidiaries is prohibited, directly or indirectly, from (A) paying any dividends or making any other distributions on its share capital, (B) making or repaying any loan or advance to the Company or any other Subsidiary or (C) transferring any of its properties or assets to the Company or any other Subsidiary; and (ii) all dividends and other distributions declared and payable upon the share capital of the Company or any of its Subsidiaries (A) may be converted into United States dollars, that may be freely transferred out of such Person’s jurisdiction of incorporation, without the consent, approval, authorization or order of, or qualification with, any court or governmental agency or body in such Person’s jurisdiction of incorporation or tax residence; and (B) are not and will not be subject to withholding, value added or other taxes under the currently effective laws and regulations of such Person’s jurisdiction of incorporation, without the necessity of obtaining any consents, approvals, authorizations, orders, registrations, clearances or qualifications of or with any court or governmental agency or body having jurisdiction over such Person.

 

 

(vv)         Foreign Private Issuer. The Company is a “foreign private issuer” within the meaning of Rule 405 under the Securities Act.

 

(ww)         Absence of Manipulation. None of the Company, the Subsidiaries or, to the best knowledge of the Company, any of their respective directors, officers, affiliates or controlling persons has taken, directly or indirectly, any action which was designed to cause or result in, or that has constituted or which might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares and the American Depositary Shares.

 

(xx)        No Sale, Issuance and Distribution of Shares. Except as described in the Time of Sale Prospectus and the Prospectus, the Company has not sold, issued or distributed any Ordinary Shares during the six-month period preceding the date hereof, including any sales pursuant to Rule 144A under, or Regulation D or S of, the Securities Act, other than shares issued pursuant to employee benefit plans , qualified stock option plans or other employee compensation plans or pursuant to outstanding options, rights or warrants.  

 

(yy)         No Immunity. None of the Company, the Subsidiaries or any of their respective properties, assets or revenues has any right of immunity, under the laws of the Cayman Islands, Norway, Ireland, Hong Kong, the PRC, the State of New York or the United States, from any legal action, suit or proceeding, the giving of any relief in any such legal action, suit or proceeding or counterclaim, the jurisdiction of any Cayman Islands, Norway, Ireland, Hong Kong, PRC, New York or United States federal court, service of process, attachment upon or prior to judgment, or attachment in aid of execution of judgment, or execution of a judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of a judgment, in any such court, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement or the Deposit Agreement; and, to the extent that the Company, any of the Subsidiaries or any of their respective properties, assets or revenues may have or may hereafter become entitled to any such right of immunity in any such court in which proceedings may at any time be commenced, each of the Company and the Subsidiaries waives or will waive such right to the extent permitted by law and has consented to such relief and enforcement as provided in Section 13 hereof and Section 7.7 of the Deposit Agreement.

 

(zz)         Validity of Choice of Law. The choice of the laws of the State of New York as the governing law of this Agreement and the Deposit Agreement is a valid choice of law under the laws of the Cayman Islands, Norway, Ireland, Hong Kong and the PRC and will be recognized by courts in the Cayman Islands, Norway, Ireland, Hong Kong and the PRC. The Company has the power to submit, and pursuant to Section 13 hereof and Section 7.6 of the Deposit Agreement, has legally, validly, effectively and irrevocably submitted, to the personal jurisdiction of each New York State and United States Federal court sitting in The City of New York (each, a “New York Court”) and has validly and irrevocably waived any objection to the laying of venue of any suit, action or proceeding brought in any such court; and the Company has the power to designate, appoint and empower, and pursuant to Section 13 hereof and Section 7.6 of the Deposit Agreement, has legally, validly, effectively and irrevocably designated, appointed and empowered, an authorized agent for service of process in any action arising out of or relating to this Agreement, the Deposit Agreement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the Registration Statement, the ADS Registration Statement or the offering of the Shares or the American Depositary Shares in any New York Court, and service of process effected on such authorized agent will be effective to confer valid personal jurisdiction over the Company as provided in Section 13 hereof and Section 7.6 of the Deposit Agreement.

 

 

(aaa)        Enforceability of Judgment. Except as described in the Time of Sale Prospectus and the Prospectus, any final and conclusive judgment for a fixed or readily calculable sum of money rendered by a New York Court having jurisdiction under its own domestic laws in respect of any suit, action or proceeding against the Company based upon this Agreement or the Deposit Agreement would be recognized against the Company and would give judgement based thereon in the Cayman Islands, Norway, Ireland and the PRC, provided that (i) with respect to courts of the Cayman Islands, such judgment (A) is given by a foreign court of competent jurisdiction, (B) imposes on the judgment debtor a liability to pay a liquidated sum for which the judgment has been given and is final, (C) is not in respect of taxes, a fine or a penalty, and (D) was not obtained in a manner and is not of a kind the enforcement of which is contrary to natural justice or the public policy of the Cayman Islands, (ii) with respect to courts of the PRC, (A) adequate service of process has been effected and the defendant has had a reasonable opportunity to be heard, (B) such judgments or the enforcement thereof are not contrary to the law, public policy, security or sovereignty of the PRC, (C) such judgments were not obtained by fraudulent means and do not conflict with any other valid judgment in the same matter between the same parties and (D) an action between the same parties in the same matter is not pending in any PRC court at the time the lawsuit is instituted in a foreign court, and (iii) with respect to courts of Ireland (A) the courts are satisfied (on the basis of Irish conflicts of laws) that the New York Court was a court of competent jurisdiction; (B) the judgment has not been obtained or alleged to have been obtained by fraud or a trick; (C) the decision of the New York Court and the enforcement thereof was not and would not be contrary to natural or constitutional justice under Irish law; (D) the enforcement of the judgment would not be contrary to public policy as understood by the Irish courts or constitute the enforcement of a judgment of a penal or revenue nature; (E) the judgment is not inconsistent with a judgment of the Irish courts in respect of the same matter; (F) the judgment is final and conclusive and is for a debt or definite sum of money; (G) the procedural rules of the New York Court and the Irish courts have been observed; (H) no fresh evidence is adduced by any party thereto which could not have been discovered prior to the judgment of the New York Court by reasonable diligence by such party and which shows such judgment to be erroneous; and (I) there is a practical benefit to the party in whose favour the judgment of the New York Court is made in seeking to have that judgment enforced in Ireland; and (iv) with respect to courts of Norway (A) the respective parties have agreed on and submitted in writing to the exclusive jurisdiction of the relevant court or tribunal, (B) the decision obtained is final, non-appealable, conclusive and enforceable in and pursuant to the laws of the country in which it has been passed, (C) the decision relates to issues where freedom of contract apply and no mandatory rules on jurisdiction or overriding mandatory provisions are applicable, including (I) interest in land or concerns certain rights in respect of property, (II) validity of the constitution, the nullity or the dissolution of companies or other persons, or the validity of the resolutions of their decision-making bodies, (III) any debt settlement negotiations, bankruptcy, insolvency, liquidation, enforcement or similar proceedings in respect of the relevant Norwegian company, and (IV) the acceptance and enforcement of the decision are not considered to be in conflict with decency or Norwegian mandatory law or public policy. The Company is not aware of any reason why the enforcement in the Cayman Islands, the PRC, Ireland or Norway of such a New York Court judgment would be, as of the date hereof, contrary to public policy of the Cayman Islands, the PRC or Ireland.

 

 

(bbb)         No Finder’s Fee. There are no contracts, agreements or understandings between the Company or its Subsidiaries and any person that would give rise to a valid claim against the Company or its Subsidiaries or any Underwriter for a brokerage commission, finder’s fee or other like payment in connection with this offering, or any other arrangements, agreements, understandings, payments or issuance with respect to the Company and its Subsidiaries and or any of their respective officers, directors, shareholders, partners, employees or affiliates that may affect the Underwriters’ compensation as determined by the Financial Industry Regulatory Authority (“FINRA”).

 

(ccc)        No Broker-Dealer Affiliation. There are no affiliations or associations between (i) any member of FINRA and (ii) the Company or any of its Subsidiaries or, to the best knowledge of the Company, any of their respective officers, directors or 5% or greater security holders or any beneficial owner of the Company’s unregistered equity securities that were acquired at any time on or after the 180th day immediately preceding the date that the Registration Statement was initially filed with the Commission.

 

(ddd)         Compliance with Foreign Laws. The Registration Statement, the Prospectus, the Time of Sale Prospectus and any preliminary prospectus comply, and any amendments or supplements thereto will comply, with any applicable laws or regulations of foreign jurisdictions in which the Prospectus, the Time of Sale Prospectus or any preliminary prospectus, as amended or supplemented, if applicable, are distributed in connection with the Directed Share Program.  No consent, approval, authorization or order of, or qualification with, any governmental body or agency, other than those obtained, is required in connection with the offering of the Directed American Depositary Shares in any jurisdiction where the Directed American Depositary Shares are being offered.

 

(eee)        Absence of Unlawful Influence. The Company has not offered, or caused the Designated Underwriter or its affiliates to offer, Directed American Depositary Shares to any person pursuant to the Directed Share Program with the specific intent to unlawfully influence (i) a customer or supplier of the Company to alter the customer’s or supplier’s level or type of business with the Company, or (ii) a trade journalist or publication to write or publish favorable information about the Company or its services or products.

 

 

(fff)        Representation of Officers. Any certificate signed by any officer of the Company and delivered to the Representatives or counsel to the Underwriters in connection with the offering shall be deemed a representation and warranty by the Company, as to matters covered thereby, to each Underwriter.

 

(ggg)        Tax Filings. (i) The Company and each of its Subsidiaries have filed all national, local and foreign tax returns required to be filed through the date of this Agreement or have requested extensions thereof and have paid all taxes required to be paid thereon (except for such taxes, if any, as are being contested in good faith and as to which adequate reserves have been provided, or where the failure to file such tax returns or pay such taxes would not, individually or in the aggregate, result in a Material Adverse Effect), and no tax deficiency has been determined adversely to the Company or any of its Subsidiaries which has had (nor does the Company nor any of its Subsidiaries have any notice or knowledge of any tax deficiency which could reasonably be expected to be determined adversely to the Company or its Subsidiaries and which could reasonably be expected to have) a Material Adverse Effect. (ii) To the best knowledge of the Company after due and careful inquiry, all local and national governmental tax holidays, exemptions, waivers, financial subsidies, and other local and national tax relief, concessions and preferential treatment enjoyed by the Company or any of the Subsidiaries as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus are valid, binding and enforceable and do not violate any applicable laws, regulations, rules, orders, decrees, guidelines, judicial interpretations, notices or other legislation.

 

(hhh)        Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus (including all amendments and supplements thereto) has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

 

(iii)        Concurrent Private Placement. The issuance and sale of Ordinary Shares by the Company to Tospring Technology Limited (“Bitmain”), IDG China Capital Fund III L.P. (“IDG Capital Fund”) and IDG China Capital III Investors L.P. (“IDG Capital Investors”) pursuant to subscription agreements each dated June 26, 2018 (the “Private Placement”) was conducted in accordance with Regulation S under the Securities Act and all requirements of Regulation S were duly complied with by the Company, Bitmain, IDG Capital Fund and IDG Capital Investors. The Private Placement will not be integrated with the offering of the Shares hereunder pursuant to applicable rules and regulations issued under the Securities Act.

 

2.          Agreements to Sell and Purchase.

 

The Company hereby agrees to sell to the several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the number of Firm Shares set forth in Schedule I hereto at US$[●] American Depositary Share (the “Purchase Price”).

 

 

On the basis of the representations and warranties contained in this Agreement, and subject to its terms and conditions, the Company hereby agrees to sell to the Underwriters the Additional Shares, and the Underwriters shall have the right to purchase, severally and not jointly, up to 2,880,000 Additional Shares in the form of 1,440,000 American Depositary Shares at the Purchase Price. The Representatives may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the date of this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such shares are to be purchased. Each purchase date must be at least two business days after the written notice is given and may not be earlier than the closing date for the Firm Shares nor later than ten business days after the date of such notice. On each day, if any, that Additional Shares are to be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as the Representatives may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares.

 

3.          Terms of Public Offering. The Company is advised by the Representatives that the Underwriters propose to make a public offering of their respective portions of the Shares in the form of American Depositary Shares as soon after the Registration Statement and this Agreement have become effective as in the judgment of the Representatives is advisable. The Company is further advised by the Representatives that the Shares are to be offered to the public initially at US$[●] per American Depositary Share (the “Public Offering Price”) and to certain dealers selected by the Representatives at a price that represents a concession not in excess of US$[●] per American Depositary Share under the Public Offering Price.

 

4.          Payment and Delivery.

 

(a)          Payment for the Firm Shares to be sold by the Company shall be made to the Company in Federal or other funds immediately available in New York City to the account specified by the Company to the Underwriters at least forty-eight hours in advance of such payment against delivery of such Firm Shares for the respective accounts of the several Underwriters at [time], New York City time, on [date], or at such other time on the same or such other date, not later than [date], as shall be designated in writing by the Representatives. The time and date of such payment are hereinafter referred to as the “Closing Date.”

 

(b)          Payment for any Additional Shares shall be made to the Company in Federal or other funds immediately available in New York City to the account specified by the Company to the Underwriters at least forty-eight hours in advance of such payment against delivery of such Additional Shares for the respective accounts of the several Underwriters at [time], New York City time, on the date specified in the corresponding notice described in Section 2 hereof or at such other time on the same or on such other date, in any event not later than [date] as shall be designated in writing by the Representatives.  

 

(c)          The American Depositary Shares to be issued and allotted to each Underwriter shall be delivered in book entry form, and in such denominations and registered in such names as the Representatives may request in writing not later than one full business day prior to the Closing Date or an Option Closing Date, as the case may be. Such American Depositary Shares shall be delivered by or on behalf of the Company to the Representatives through the facilities of the Depository Trust Company (“DTC”), for the account of such Underwriter, against payment by or on behalf of such Underwriter of the purchase price therefor by wire transfer of Federal or other immediately available funds to the account(s) specified by the Company to the Representatives at least forty-eight hours in advance of such payment on the Closing Date or Option Closing Date, as the case may be, or at such other time and date as shall be designated in writing by the Representatives. The Purchase Price payable by the Underwriters shall be reduced by (i) any transfer taxes paid by, or on behalf of, the Underwriters in connection with the transfer of the Shares to the Underwriters duly paid and (ii) any withholding required by law. The Company will cause the certificates representing the Shares to be made available for inspection at least 24 hours prior to the Closing Date or Option Closing Date, as the case may be.

 

 

5.          Conditions to the Underwriters’ Obligations. The obligations of the Company to sell the Shares to the Underwriters and the several obligations of the Underwriters to purchase and pay for the Shares on the Closing Date and each Option Closing Date are subject to the condition that the Registration Statement shall have become effective not later than [time] (New York City time) on the date hereof.

 

The several obligations of the Underwriters are subject to the following further conditions:

 

(a)          Subsequent to the execution and delivery of this Agreement and prior to the Closing Date or an Option Closing Date, as the case may be, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its Subsidiaries, taken as a whole, from that set forth in the Time of Sale Prospectus as of the date of this Agreement that, in the judgment of the Representatives, is material and adverse and that makes it, in the judgment of the Representatives, impracticable or inadvisable to market the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus.  

 

(b)          The Underwriters shall have received on the date hereof a certificate, dated such date, signed by an executive officer of the Company, describing certain financial matters, in form and substance satisfactory to the Underwriters.

 

(c)          The Underwriters shall have received on the Closing Date or Option Closing Date, as the case may be, a certificate, dated such date, signed by an executive officer of the Company, to the effect set forth in Section 5(a) hereof and to the effect that the representations and warranties of the Company contained in this Agreement are true and correct as of the Closing Date or Option Closing Date, as the case may be, and that the Company has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before such date (and the officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings threatened) and with respect to such other matters as the Representatives may reasonably require.

 

(d)          The Underwriters shall have received on the Closing Date or an Option Closing Date, as the case may be, a certificate, dated such date and signed by the chief financial officer of the Company with respect to certain operating data and financial figures contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus, in form and substance satisfactory to the Underwriters.

 

 

(e)          The Underwriters shall have received on the Closing Date or an Option Closing Date, as the case may be, an opinion (including with respect to certain customary U.S. federal income tax matters) and negative assurance letter of Kirkland & Ellis International LLP, U.S. counsel for the Company, dated the Closing Date or Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters.

 

(f)          The Underwriters shall have received on the Closing Date or an Option Closing Date, as the case may be, an opinion of Maples and Calder (Hong Kong) LLP, Cayman Islands counsel for the Company, dated the Closing Date or Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters.

 

(g)          The Underwriters shall have received on the Closing Date or an Option Closing Date, as the case may be, an opinion of Wikborg Rein, Norwegian counsel for the Company, dated the Closing Date or Option Closing Date, as the case may be, a copy of which shall have been provided to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.

 

(h)          The Underwriters shall have received on the Closing Date or an Option Closing Date, as the case may be, an opinion of Kirkland & Ellis International LLP , Hong Kong counsel for the Company, dated the Closing Date or Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters.

 

(i)          The Underwriters shall have received on the Closing Date or an Option Closing Date, as the case may be, an opinion of McCann FitzGerald, Irish counsel for the Company, dated the Closing Date or Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters.

 

At the request of the Company, the opinions of counsel for the Company described above shall be addressed to the Underwriters and shall so state therein.

 

(j)          The Underwriters shall have received on the Closing Date or an Option Closing Date, as the case may be, an opinion and negative assurance letter of Wilson Sonsini Goodrich & Rosati, U.S. counsel for the Underwriters, dated the Closing Date or Option Closing Date, as the case may be, in form and substance satisfactory to the Underwriters.

 

(k)          The Underwriters shall have received on the Closing Date or an Option Closing Date, as the case may be, an opinion of Emmet, Marvin & Martin, LLP, counsel for the Depositary, dated the Closing Date or Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Underwriters.

 

(l)          The Underwriters shall have received, on each of the date hereof and the Closing Date or Option Closing Date, as the case may be, a letter dated such date, in form and substance satisfactory to the Underwriters, from KPMG AS, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to the Underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than the date hereof.

 

 

(m)          The “lock-up” letters, each substantially in the form of Exhibit A hereto, executed by the individuals and entities listed on Schedule IV relating to sales and certain other dispositions of Ordinary Shares or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date.

 

(n)          The Company and the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect on the Closing Date. The Company and the Depositary shall have taken all actions necessary to permit the deposit of the Shares and the issuance of the American Depositary Shares representing such Shares in accordance with the Deposit Agreement.  

 

(o)          The Depositary shall have furnished or caused to be furnished to the Underwriters a certificate satisfactory to the Representatives of one of its authorized officers with respect to the deposit with it of the Shares against issuance of the American Depositary Shares, the execution, issuance, countersignature and delivery of the American Depositary Shares pursuant to the Deposit Agreement and such other matters related thereto as the Representatives may reasonably request.

 

(p)          The American Depositary Shares representing the Shares shall have been approved for listing on the NASDAQ, subject to only official notice of issuance.

 

(q)          If the Company elects to rely upon Rule 462(b) under the Securities Act, the Company shall have filed a Rule 462 Registration Statement with the Commission in compliance with Rule 462(b) promptly after 4:00 p.m., New York City time, on the date of this Agreement, and the Company shall have at the time of filing either paid to the Commission the filing fee for the Rule 462 Registration Statement or given irrevocable instructions for the payment of such fee pursuant to Rule 111(b) under the Securities Act.

 

(r)          The Company shall have filed the Prospectus with the Commission (including the information required by Rule 430A under the Securities Act) in the manner and within the time period required by Rule 424(b) under the Securities Act; or the Company shall have filed a post-effective amendment to the Registration Statement containing the information required by such Rule 430A, and such post-effective amendment shall have become effective.

 

(s)          No stop order suspending the effectiveness of the Registration Statement, the ADS Registration Statement, any Rule 462 Registration Statement, or any post-effective amendment to the Registration Statement, shall be in effect and no proceedings for such purpose shall have been instituted or threatened by the Commission.

 

(t)          FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting, or other arrangements of the transactions contemplated hereby.

 

 

(u)          On the Closing Date or an Option Closing Date, as the case may be, the Representatives and counsel for the Underwriters shall have received such information, documents, certificates and opinions as they may reasonably require for the purposes of enabling them to pass upon the accuracy and completeness of any statement in the Registration Statement, the Time of Sale Prospectus and the Prospectus, issuance and sale of the Shares as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.  

 

The several obligations of the Underwriters to purchase Additional Shares hereunder are subject to the delivery to the Representatives on the applicable Option Closing Date of such documents as the Representatives may reasonably request with respect to the good standing of the Company, the due authorization and issuance of the Additional Shares to be sold on such Option Closing Date and other matters related to the issuance of such Additional Shares.

 

6.          Covenants of the Company.

 

The Company, in addition to its other agreements and obligations hereunder, covenants with each Underwriter as follows:

 

(a)          To file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A under the Securities Act.

 

(b)          To furnish to the Representatives, without charge, signed copies of the Registration Statement and the ADS Registration Statement (including, in each case, exhibits thereto) reasonably requested by the Representatives and for delivery to each other Underwriter a conformed copy of the Registration Statement and the ADS Registration Statement (in each case, without exhibits thereto) and to furnish to the Representatives in New York City, without charge, prior to 10:00 a.m. New York City time on the business day next succeeding the date of this Agreement and during the period mentioned in Sections 6(f) or 6(g) hereof, as many copies of the Time of Sale Prospectus, the Prospectus and any supplements and amendments thereto or to the Registration Statement as the Representatives may reasonably request.

 

(c)          Before amending or supplementing the Registration Statement, the ADS Registration Statement, the Time of Sale Prospectus or the Prospectus, to furnish to the Representatives a copy of each such proposed amendment or supplement and not to file any such proposed amendment or supplement to which the Representatives reasonably object, and to file with the Commission within the applicable period specified in Rule 424(b) under the Securities Act any prospectus required to be filed pursuant to such Rule.

 

(d)          To furnish to the Representatives a copy of each proposed free writing prospectus to be prepared by or on behalf of, used by, or referred to by the Company and not to use or refer to any proposed free writing prospectus to which the Representatives reasonably object.

 

(e)          Without the prior consent of the Representatives, not to take any action that would result in an Underwriter or the Company being required to file with the Commission pursuant to Rule 433(d) under the Securities Act a free writing prospectus prepared by or on behalf of the Underwriter that the Underwriter otherwise would not have been required to file thereunder.

 

 

(f)          If the Time of Sale Prospectus is being used to solicit offers to buy the Shares at a time when the Prospectus is not yet available to prospective purchasers and any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading, or if any event shall occur or condition exist as a result of which the Time of Sale Prospectus conflicts with the information contained in the Registration Statement then on file, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to any dealer upon request, either amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or supplemented will not, in the light of the circumstances when the Time of Sale Prospectus is delivered to a prospective purchaser, be misleading or so that the Time of Sale Prospectus, as amended or supplemented, will no longer conflict with the Registration Statement, or so that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law.

 

(g)          If, during such period after the first date of the public offering of the Shares as in the opinion of counsel for the Underwriters the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is required by law to be delivered in connection with sales by an Underwriter or dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus in order to make the statements therein, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, not misleading, or if, in the opinion of counsel for the Underwriters, it is necessary to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish, at its own expense, to the Underwriters and to the dealers (whose names and addresses the Representatives will furnish to the Company) to which Shares may have been sold by the Representatives on behalf of the Underwriters and to any other dealers upon request, either amendments or supplements to the Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when the Prospectus (or in lieu thereof the notice referred to in Rule 173(a) of the Securities Act) is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with applicable law.

 

(h)          To endeavor to qualify the Shares and the American Depositary Shares for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request.

 

(i)          To advise the Representatives promptly and confirming such advice in writing, of any request by the Commission for amendments or supplements to the Registration Statement, the ADS Registration Statement, the Form 8-A Registration Statement, any Time of Sale Prospectus, Prospectus or free writing prospectus or for additional information with respect thereto, or of notice of institution of proceedings for, or the entry of a stop order, suspending the effectiveness of the Registration Statement or the ADS Registration Statement and, if the Commission should enter a stop order suspending the effectiveness of the Registration Statement or the ADS Registration Statement, to use its best efforts to obtain the lifting or removal of such order as soon as possible.

 

 

(j)          To make generally available to the Company’s security holders and to the Representatives as soon as practicable an earnings statement covering a period of at least twelve months beginning with the first fiscal quarter of the Company occurring after the date of this Agreement, which shall satisfy the provisions of Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including but not limited to Rule 158 under the Securities Act).

 

(k)          During the period when the Prospectus is required to be delivered under the Securities Act, to file all documents required to be filed with the Commission pursuant to the Exchange Act within the time periods required by the Exchange Act and the rules and regulations of the Commission thereunder; during the five-year period after the date of this Agreement, to furnish to the Representatives and, upon request, to each of the other Underwriters, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and to furnish to the Representatives (i) as soon as available, a copy of each report of the Company filed with or furnished to the Commission under the Exchange Act or mailed to shareholders, and (ii) from time to time, such other information concerning the Company as the Representatives may reasonably request. However, so long as the Company is subject to the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is timely filing reports with the Commission on its EDGAR reporting system, it is not required to furnish such reports or statements filed through EDGAR to the Underwriters.

 

(l)          To apply the net proceeds to the Company from the sale of the Shares in the manner set forth under the heading “Use of Proceeds” in the Time of Sale Prospectus and to file such reports with the Commission with respect to the sale of the Shares and the application of the proceeds therefrom as may be required by Rule 463 under the Securities Act; not to invest, or otherwise use the proceeds received by the Company from its sale of the American Depositary Shares in such a manner (i) as would require the Company or any of the Subsidiaries to register as an investment company under the 1940 Act, and (ii) that would result in the Company being not in compliance with any applicable laws, rules and regulations of the State Administration of Foreign Exchange of the PRC.

 

(m)          Not to take, and to cause each of its Subsidiaries not to, take, directly or indirectly, any action designed to or that would constitute or that might reasonably be expected to cause or result in the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or the American Depositary Shares.

 

 

(n)          (i) To indemnify and hold harmless the Underwriters against any transaction, stamp, capital or other issuance, registration, documentary, transaction, transfer, withholding, or other similar taxes or duties (other than taxes imposed on the net income of an Underwriter), including any interest and penalties, on the creation, allotment, issue and sale of the Shares or American Depositary Shares by the Company to the Underwriters and on the execution and delivery of, and the performance of the obligations (including the initial resale and delivery of the American Depositary Shares by the underwriters) under, this Agreement or the Deposit Agreement and on bringing any such document within any jurisdiction; and (ii) to ensure that all payments to be made by the Company hereunder shall be made free and clear of and without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless the Company is compelled by law to deduct or withhold such taxes, duties or charges. In that event, the Company shall pay such additional amounts as may be necessary in order that the net amounts received after such withholding or deduction shall equal the amounts that would have been received if no withholding or deduction had been made; provided, however, that no such additional amounts shall be paid in respect of any such taxes, duties or charges to the extent such taxes, duties or charges (i) are imposed by reason of a present or former connection between the recipient and the jurisdiction imposing such taxes, duties or charges (other than a connection that would not have arisen solely but for the transactions contemplated by this Agreement) or (ii) would not have been imposed but for the failure of the recipient to provide, upon request, any customary or required certification, identification or other documentation concerning such recipient’s nationality, residence, identity or connection with the jurisdiction imposing such taxes, duties or charges.

 

(o)          To comply with all applicable securities and other laws, rules and regulations in each jurisdiction in which the Directed American Depositary Shares are offered in connection with the Directed Share Program.

 

(p)          In connection with the Directed Share Program, to ensure that the Directed American Depositary Shares will be restricted to the extent required by FINRA or the FINRA rules from sale, transfer, assignment, pledge or hypothecation for a period of six months following the date of the effectiveness of the Registration Statement (it being understood that the Designated Underwriter will notify the Company as to which Participants will need to be so restricted); and to direct the transfer agent to place stop transfer restrictions upon such securities for such period of time.

 

(q)          To comply with all applicable securities and other applicable laws, rules and regulations in each foreign jurisdiction in which the Directed American Depositary Shares are offered in connection with the Directed Share Program.

 

(r)          To comply with the terms of the Deposit Agreement so that the American Depositary Shares will be issued by the Depositary and delivered to each Underwriter’s participant account in DTC, pursuant to this Agreement on the Closing Date and each applicable Option Closing Date.

 

(s)           (i) not to attempt to avoid any judgment in connection with this Agreement obtained by it, applied to it, or denied to it in a court of competent jurisdiction outside the Cayman Islands; (ii) following the consummation of the offering, to use its reasonable efforts to obtain and maintain all approvals required in the Cayman Islands to pay and remit outside the Cayman Islands all dividends declared by the Company and payable on the Ordinary Shares, if any; and (iii) to use its reasonable efforts to obtain and maintain all approvals, if any, required in the Cayman Islands for the Company to acquire sufficient foreign exchange for the payment of dividends and all other relevant purposes.

 

 

(t)          To implement and maintain effective measures in compliance with laws and regulations in all material respects in the European Union and other applicable jurisdictions concerning user privacy, rights of publicity, data protection, content, intellectual property, distribution, electronic contracts and other communications, competition, protection of minors, consumer protection, taxation and other applicable aspects of the Company’s operations.

 

(u)          To promptly notify the Representatives if the Company ceases to be an Emerging Growth Company at any time prior to the later of (a) completion of the distribution of the Shares within the meaning of the Securities Act and (b) completion of the Restricted Period (as defined in this Section 6 hereof).

 

(v)         If at any time following the distribution of any Written Testing-the-Waters Communication there occurred or occurs an event or development as a result of which such Written Testing-the-Waters Communication, when considered together with the Time of Sale Prospectus, included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, to promptly notify the Representatives and will promptly amend or supplement, at its own expense, such Written Testing-the-Waters Communication to eliminate or correct such untrue statement or omission.

 

(w)          To deliver to each Underwriter (or its agent), prior to or at the Closing Date, a properly completed and executed Internal Revenue Service (“IRS”) Form W-9 or an IRS Form W-8, as appropriate, together with all required attachments to such form.

 

(x)          Without the prior written consent of the Representatives on behalf of the Underwriters, not to, during the period ending 180 days after the date of the Prospectus (the “Restricted Period”), (i) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Ordinary Shares, American Depositary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares or American Depositary Shares or (ii) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Ordinary Shares or American Depositary Shares, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of Ordinary Shares, American Depositary Shares or such other securities, in cash or otherwise or (iii) file any registration statement with the Commission relating to the offering of any Ordinary Shares, American Depositary Shares or any securities convertible into or exercisable or exchangeable for Ordinary Shares or American Depositary Shares.

 

The restrictions contained in the preceding paragraph shall not apply to (i) the Shares to be sold hereunder, (ii) issuance and sale of Ordinary Shares by the Company to Bitmain IDG Capital Fund and IDG Capital Investors in the Private Placement; or (iii) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of Ordinary Shares, provided that (A) such plan does not provide for the transfer of Ordinary Shares during the Restricted Period and (B) to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of Ordinary Shares may be made under such plan during the Restricted Period.

 

 

If the Representatives, in their sole discretion, agree to release or waive the restrictions set forth in a lock-up letter described in Section 5 hereof for an officer or director of the Company and provides the Company with notice of the impending release or waiver at least three business days before the effective date of the release or waiver, the Company agrees to announce the impending release or waiver by a press release substantially in the form of Exhibit B hereto through a major news service at least two business days before the effective date of the release or waiver.

 

(y)          Without the prior written consent of the Representatives on behalf of the Underwriters, not to, during the Restricted Period, permit or authorize the conversion of any RSUs awarded under the Restricted Share Unit (RSU) Plan effective April 7, 2017 of the Company into Ordinary Shares.

 

7.          [Expenses Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses and fees incident to the performance of its obligations under this Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with the registration and delivery of the Shares and the American Depositary Shares under the Securities Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, the ADS Registration Statement, the Form 8-A Registration Statement, any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, any free writing prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, (ii) all costs and expenses related to the transfer and delivery of the Shares and the American Depositary Shares to the Underwriters, including any transfer or other similar taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or legal investment memorandum or any other document in connection with the offer, purchase, sale and delivery of the Shares or the American Depositary Shares under state securities laws and all expenses in connection with the qualification of the Shares and American Depositary Shares for offer and sale under state securities laws as provided in Section 6(h) hereof, (iv) all filing fees in connection with the review and qualification of the offering of the Shares by FINRA, (v) the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Shares by FINRA (not to exceed US$20,000) (vi) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the American Depositary Shares and all costs and expenses incident to listing the Shares on the NASDAQ, (vii) the cost of printing certificates representing the Shares or the American Depositary Shares, (viii) the costs and charges of any transfer agent, registrar or depositary, (ix) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the American Depositary Shares, including, without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, expenses associated with hosting investor meetings or luncheons, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel, meals and lodging expenses of any such consultants and the Company’s representatives, and the cost of any vehicle or aircraft chartered for the purpose of the road show, provided, however, for purposes of this clause (ix), consultants and representatives shall not include the Underwriters or any of their employees, and (x) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 9 entitled “Indemnity and Contribution”, Section 10 entitled “Directed Share Program Indemnification” and the last paragraph of Section 12 hereof, the Underwriters will pay all of their costs and expenses including stock transfer taxes payable on resale of any of the Shares by them and any advertising expenses connected with any offers they may make.]

 

 

8.          Covenants of the Underwriters. Each Underwriter severally covenants with the Company not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Company thereunder, but for the action of such Underwriter.  

 

9.          Indemnity and Contribution.

 

(a)          The Company agrees to indemnify and hold harmless each Underwriter, each affiliate of any Underwriter within the meaning of Rule 405 under the Securities Act, each director, officer and employee of the any of the foregoing, the selling agents of each Underwriter, and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and , from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, the ADS Registration Statement or any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus or any amendment or supplement thereto, any issuer free writing prospectus as defined in Rule 433(h) under the Securities Act, any Company information that the Company has filed, or is required to file, pursuant to Rule 433(d) under the Securities Act, any road show as defined in Rule 433(h) under the Securities Act (a “road show”), or the Prospectus or any amendment or supplement thereto, or any Written Testing-the-Waters Communication caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter and each such director, officer, employee or controlling person promptly upon demand for any legal or other expenses reasonably incurred by that Underwriter, director, officer, employee or controlling person in connection with investigating or defending or preparing to defend against any such loss, claim, damage, liability or action as such expenses are incurred; except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission in reliance upon and in conformity with the Underwriter Information (as defined in Section 9(b) hereof).

 

 

(b)          Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, the directors of the Company, the officers of the Company who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information furnished to the Company in writing by such Underwriter through the Representatives expressly for use in the Registration Statement, any preliminary prospectus, the Time of Sale Prospectus or the Prospectus or any amendment or supplement thereto, it being understood and agreed that the only such information furnished by any Underwriter consists of the concession figures appearing in the [third] paragraph, the disclosure on sales to discretionary accounts appearing in the [seventh] paragraph and the addresses of the Representatives appearing in the [nineteenth] paragraph under the caption “Underwriting” (the “Underwriter Information”).

 

(c)          In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 9(a) or 9(b) hereof, such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the (i) fees and expenses of more than one separate firm (in addition to any local counsel) for all Underwriters and all persons, if any, who control any Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act or who are affiliates of any Underwriter within the meaning of Rule 405 under the Securities Act, (ii) the fees and expenses of more than one separate firm (in addition to any local counsel) for the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either such Section, and that all such fees and expenses shall be reimbursed as they are incurred. In the case of any such separate firm for the Underwriters and such control persons and affiliates of any Underwriters, such firm shall be designated in writing by the Representatives. In the case of any such separate firm for the Company, and such directors, officers and control persons of the Company, such firm shall be designated in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement (x) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding, and (y) does not include any statement as to, or any admission of, fault, culpability or a failure to act by or on behalf of any indemnified party.

 

 

(d)          To the extent the indemnification provided for in Section 9(a) or 9(b) hereof, is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other hand from the offering of the Shares or (ii) if the allocation provided by clause 9(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 9(d)(i) above but also the relative fault of the indemnifying party or parties on the one hand and of the indemnified party or parties on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Shares (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Shares. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 9 are several in proportion to the respective number of Shares they have purchased hereunder, and not joint.

 

(e)          The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 9(d) hereof. The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in Section 9(d) hereof shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 9, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Shares exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 9 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

 

(f)          The indemnity and contribution provisions contained in this Section 9 and Section 6(n) hereof and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of (A) any Underwriter, any person controlling any Underwriter or any affiliate of any Underwriter, or (B) the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Shares.

 

10.         Directed Share Program Indemnification.

 

(a)          The Company agrees to indemnify and hold harmless the Designated Underwriter, each person, if any, who controls the Designated Underwriter within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act and each affiliate of the Designated Underwriter within the meaning of Rule 405 of the Securities Act, and each director, officer and any employee of any of the foregoing (collectively, the “Designated Underwriter Entities”, each, a “Designated Underwriter Entity”) from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the consent of the Company for distribution to Participants in connection with the Directed Share Program or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) caused by the failure of any Participant to pay for and accept delivery of Directed American Depositary Shares that the Participant agreed to purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program, other than losses, claims, damages or liabilities (or expenses relating thereto) that are finally judicially determined by a court of competent jurisdiction to have resulted from the bad faith or gross negligence of the Designated Underwriter Entities.  

 

 

(b)          In case any proceeding (including any governmental investigation) shall be instituted involving any Designated Underwriter Entity in respect of which indemnity may be sought pursuant to Section 10(a) hereof, the Designated Underwriter Entity seeking indemnity shall promptly notify the Company in writing and the Company, upon request of the Designated Underwriter Entity, shall retain counsel reasonably satisfactory to the Designated Underwriter Entity to represent the Designated Underwriter Entity and any others the Company may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any Designated Underwriter Entity shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Designated Underwriter Entity unless (i) the Company shall have agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Company and the Designated Underwriter Entity and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not, in respect of the legal expenses of the Designated Underwriter Entities in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all Designated Underwriter Entities. Any such separate firm for the Designated Underwriter Entities shall be designated in writing by Designated Underwriter. The Company shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Company agrees to indemnify the Designated Underwriter Entities from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time a Designated Underwriter Entity shall have requested the Company to reimburse it for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the Company agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the Company of the aforesaid request and (ii) the Company shall not have reimbursed the Designated Underwriter Entity in accordance with such request prior to the date of such settlement. The Company shall not, without the prior written consent of Designated Underwriter, effect any settlement of any pending or threatened proceeding in respect of which any Designated Underwriter Entity is or could have been a party and indemnity could have been sought hereunder by such Designated Underwriter Entity, unless such settlement includes an unconditional release of the Designated Underwriter Entities from all liability on claims that are the subject matter of such proceeding.

 

(c)          To the extent the indemnification provided for in Section 10(a) hereof is unavailable to a Designated Underwriter Entity or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then the Company in lieu of indemnifying the Designated Underwriter Entity thereunder shall contribute to the amount paid or payable by the Designated Underwriter Entity as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Designated Underwriter Entities on the other hand from the offering of the Directed American Depositary Shares or (ii) if the allocation provided by clause 10(c)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 10(c)(i) above but also the relative fault of the Company on the one hand and of the Designated Underwriter Entities on the other hand in connection with any statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Designated Underwriter Entities on the other hand in connection with the offering of the Directed American Depositary Shares shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Directed American Depositary Shares (before deducting expenses) and the total underwriting discounts and commissions received by the Designated Underwriter Entities for the Directed American Depositary Shares bear to the aggregate Public Offering Price of the Directed American Depositary Shares. If the loss, claim, damage or liability is caused by an untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact, the relative fault of the Company on the one hand and the Designated Underwriter Entities on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement or the omission or alleged omission relates to information supplied by the Company or by the Designated Underwriter Entities and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

 

 

(d)          The Company and the Designated Underwriter Entities agree that it would not be just or equitable if contribution pursuant to this Section 10 were determined by pro rata allocation (even if the Designated Underwriter Entities were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in Section 10(c) hereof. The amount paid or payable by the Designated Underwriter Entities as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by the Designated Underwriter Entities in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 10, no Designated Underwriter Entity shall be required to contribute any amount in excess of the amount by which the total price at which the Directed American Depositary Shares distributed to the public were offered to the public exceeds the amount of any damages that such Designated Underwriter Entity has otherwise been required to pay. The remedies provided for in this Section 10 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

 

(e)          The indemnity and contribution provisions contained in this Section 10 shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Designated Underwriter Entity or the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Directed American Depositary Shares.

 

11.         Termination. The Underwriters may terminate this Agreement by notice given by the Representatives to the Company, if after the execution and delivery of this Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as the case may be, any of the New York Stock Exchange, the NYSE MKT, the NASDAQ Global Select Market, the Oslo Stock Exchange, the Hong Kong Stock Exchange or other relevant exchanges, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a material disruption in commercial banking, securities settlement, payment or clearance services in the United States, the European Union, Norway or the Cayman Islands or with respect to Clearstream or Euroclear systems in Europe shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by United States Federal, New York State, European Union, Norway or Cayman Islands authorities, (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial markets, currency exchange rates or controls or any calamity or crisis or any change or development involving a prospective change in the national or international political, financial or economic conditions that, in the judgment of the Representatives, is material and adverse and which, singly or together with any other event specified in this clause (v), makes it, in the judgment of the Representatives, impracticable or inadvisable to proceed with the offer, sale or delivery of the Shares on the terms and in the manner contemplated in the Time of Sale Prospectus or the Prospectus.

 

 

12.         Effectiveness; Defaulting Underwriters. This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.

 

If, on the Closing Date or an Option Closing Date, as the case may be, any one or more of the Underwriters shall fail or refuse to purchase Shares that it has or they have agreed to purchase hereunder on such date, and the aggregate number of Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase is not more than one-tenth of the aggregate number of the Shares to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the number of Firm Shares set forth opposite their respective names in Schedule I bears to the aggregate number of Firm Shares set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date; provided that in no event shall the number of Shares that any Underwriter has agreed to purchase pursuant to this Agreement be increased pursuant to this Section 12 by an amount in excess of one-ninth of such number of Shares without the written consent of such Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Firm Shares and the aggregate number of Firm Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Firm Shares to be purchased on such date, and arrangements satisfactory to the Representatives and the Company for the purchase of such Firm Shares are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter and the Company. In any such case either the Representatives or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Registration Statement, in the Time of Sale Prospectus, in the Prospectus or in any other documents or arrangements may be effected. If, on an Option Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase Additional Shares and the aggregate number of Additional Shares with respect to which such default occurs is more than one-tenth of the aggregate number of Additional Shares to be purchased on such Option Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate their obligation hereunder to purchase the Additional Shares to be sold on such Option Closing Date or (ii) purchase not less than the number of Additional Shares that such non-defaulting Underwriters would have been obligated to purchase in the absence of such default. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

 

If this Agreement shall be terminated by the Underwriters, or any of them, because of any failure or refusal on the part of the Company to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company shall be unable to perform its obligations under this Agreement, the Company will reimburse the Underwriters or such Underwriters as have so terminated this Agreement with respect to themselves, severally, for all out-of-pocket expenses (including the fees and disbursements of their counsel) reasonably incurred by such Underwriters in connection with this Agreement or the offering contemplated hereunder.

 

 

13.         Submission to Jurisdiction; Appointment of Agent for Service. The Company hereby irrevocably submits to the exclusive jurisdiction of the U.S. federal and state courts in the Borough of Manhattan in The City of New York (each, a “New York Court”) in any suit or proceeding arising out of or relating to this Agreement, the Time of Sale Prospectus, the Prospectus, the Registration Statement, the ADS Registration Statement, the offering of the American Depositary Shares or any transactions contemplated hereby. The Company and each of the Company’s Subsidiaries and Affiliated Entities irrevocably and unconditionally waive any objection to the laying of venue of any suit or proceeding arising out of or relating to this Agreement, the Time of Sale Prospectus, the Prospectus, the Registration Statement, the ADS Registration Statement, the offering of the American Depositary Shares or any transactions contemplated hereby in the New York Courts, and irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such suit or proceeding in any such court has been brought in an inconvenient forum. To the extent that the Company has or hereafter may acquire any immunity (on the grounds of sovereignty or otherwise) from the jurisdiction of any court or from any legal process with respect to itself or its property, the Company irrevocably waives, to the fullest extent permitted by law, such immunity in respect of any such suit, action or proceeding. The Company irrevocably appoints Cogency Global Inc., as its authorized agent (the “Authorized Agent”) in the Borough of Manhattan in The City of New York upon which process may be served in any such suit or proceeding, and agree that service of process in any manner permitted by applicable law upon such agent shall be deemed in every respect effective service of process in any manner permitted by applicable law upon the Company, as the case may be, in any such suit or proceeding. The Company further agrees to take any and all action as may be necessary to maintain such designation and appointment of such agent in full force and effect for a period of seven years from the date of this Agreement.  

 

14.         Judgment Currency. If for the purposes of obtaining judgment in any court it is necessary to convert a sum due hereunder into any currency other than United States dollars, the parties hereto agree, to the fullest extent permitted by law, that the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Underwriters could purchase United States dollars with such other currency in The City of New York on the business day preceding that on which final judgment is given. The obligation of the Company pursuant to this Agreement with respect to any sum due from it to any Underwriter or any person controlling any Underwriter shall, notwithstanding any judgment in a currency other than United States dollars, not be discharged until the first business day following receipt by such Underwriter or controlling person of any sum in such other currency, and only to the extent that such Underwriter or controlling person may in accordance with normal banking procedures purchase United States dollars with such other currency. If the United States dollars so purchased are less than the sum originally due to such Underwriter or controlling person hereunder, the Company agrees as a separate obligation and notwithstanding any such judgment, to indemnify such Underwriter or controlling person against such loss. If the United States dollars so purchased are greater than the sum originally due to such Underwriter or controlling person hereunder, such Underwriter or controlling person agrees to pay to the Company, an amount equal to the excess of the dollars so purchased over the sum originally due to such Underwriter or controlling person hereunder.

 

 

15.         Entire Agreement. This Agreement, together with any contemporaneous written agreements and any prior written agreements (to the extent not superseded by this Agreement) that relate to the sale and purchase of the Shares and the offering of the American Depositary Shares, represents the entire agreement between the Company and the Underwriters with respect to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the Prospectus, the conduct of the offering, and the purchase and sale of the Shares and the offering of the American Depositary Shares.  

 

16.         Counterparts. This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

 

17.         Applicable Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York.

 

18.         Headings. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part of this Agreement.

 

19.         Notices. All communications hereunder shall be in writing and effective only upon receipt and if to the Underwriters shall be delivered, mailed or sent to the Representatives at:

 

China International Capital Corporation Hong Kong Securities Limited 

29th Floor, One International Finance Centre 

1 Harbour View Street

Central, Hong Kong

 

Citigroup Global Markets Inc. 

388 Greenwich Street
New York, NY 10013 

United States

 

if to the Company shall be delivered, mailed or sent to Opera Limited, Gjerdrums vei 19, 0484 Oslo, Norway, Attention: General Counsel.

 

20.         Parties at Interest. The Agreement set forth has been and is made solely for the benefit of the Underwriters, the Company and to the extent provided in Section 9 hereof the controlling persons, partners, directors and officers referred to in such sections and their respective successors, assigns, heirs, personal representatives and executors and administrators. No other person, partnership, association or corporation (including a purchaser, as such purchaser, from any of the Underwriters) shall acquire or have any rights under or by virtue of this Agreement.

 

21.         Absence of Fiduciary Relationship. The Company acknowledges and agrees to each of the following:

 

(a)          No Other Relationship. Each of the Representatives has been retained solely to act as an underwriter in connection with the sale of the Shares and that no fiduciary, advisory or agency relationship between the Company and any of the Representatives has been created in respect of any of the transactions contemplated by this Agreement or the Prospectus, irrespective of whether any of the Representatives have advised or are advising the Company on other matters.

 

 

(b)          Arms’ Length Negotiations. The price of the Shares set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Representatives and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement.

 

(c)          Absence of Obligation to Disclose. The Company has been advised that the each of the Representatives and their respective affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that each of the Representatives has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship.

 

(d)          Waiver. The Company waives, to the fullest extent permitted by law, any claims it may have against the each of the Representatives for breach of fiduciary duty or alleged breach of fiduciary duty and agrees that none of the Representatives shall have any liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of the Company, including shareholders, employees or creditors of the Company.

 

22.         Successors and Assigns. This Agreement shall be binding upon the Underwriters, the Company and their successors and assigns and any successor or assign of any substantial portion of the Company’s and any of the Underwriters’ respective businesses and/or assets. This Agreement and the terms and provisions hereof are for the sole benefit of only those persons, except that (a) the representations, warranties, indemnities and agreements of the Company contained in this Agreement shall also be deemed to be for the benefit of the directors, officers and employees of the Underwriters and each person or persons, if any, who control any Underwriter within the meaning of Section 15 of the Securities Act and (b) the indemnity agreement of the Underwriters contained in Section 9(b) of this Agreement shall be deemed to be for the benefit of its directors, its officers who have signed the Registration Statement and any person controlling the Company within the meaning of Section 15 of the Securities Act. Nothing in this Agreement is intended or shall be construed to give any person, other than the persons referred to in this Section 22, any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein.  

 

23.         Partial Unenforceability. The invalidity or unenforceability of any section, subsection, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, subsection, paragraph or provision hereof. If any section, subsection, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

 

24.         Amendments. This Agreement may only be amended or modified in writing, signed by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit.

 

[Signature page follows]

 

 

	Very truly yours,
	OPERA LIMITED
	By:
		Name:
		Title:

 

[Signature page to Underwriting Agreement]

 

 

Accepted as of the date hereof

 

Acting severally on behalf of themselves and
the several Underwriters named in
Schedule I hereto 

 

By:	CHINA INTERNATIONAL CAPITAL CORPORATION HONG KONG SECURITIES LIMITED
By:
	Name:
	Title:
By:	CITIGROUP GLOBAL MARKETS INC.
By:
	Name:
	Title:

 

[Signature page to Underwriting Agreement]

 

 

SCHEDULE I

 

Underwriter		Number of  Firm Shares  To Be Purchased				Maximum Number of Additional Shares To Be Purchased
China International Capital Corporation Hong Kong Securities Limited
Citigroup Global Markets Inc.
Carnegie AS
Total

 

Schedule I

 

 

SCHEDULE II

 

Time of Sale Prospectus 

 

1.

Preliminary Prospectus issued July 13, 2018

 

2.

[identify all free writing prospectuses filed by the Company under Rule 433(d) of the Securities Act]

 

3.

[free writing prospectus containing a description of terms that does not reflect final terms, if the Time of Sale Prospectus does not include a final term sheet]

 

4.

[orally communicated pricing information such as price per share and size of offering if a Rule 134 pricing term sheet is used at the time of sale instead of a pricing term sheet filed by the Company under Rule 433(d) as a free writing prospectus]

 

Schedule II

 

 

SCHEDULE III-A

 

SUBSIDIARIES OF THE COMPANY

 

Name		Place of Incorporation
1.          Kunhoo Software LLC		Cayman Islands
2.          Kunhoo Software Limited		Hong Kong
3.          Kunhoo Software S.a.r.L		Luxemburg
4.          Kunhoo Software AS		Norway
5.          Opera Software Americas LLC		United States
6.          Opera Software Holdings LLC		United States
7.          Opera Software Ireland Ltd.		Ireland
8.          Opera Software AS		Norway
9.          Opera Software International AS		Norway
10.        Opera Software Netherlands BV		Netherlands
11.        Opera Software India Private Limited		India
12.        Opera Software Poland Sp.z.o.o		Poland
13.        Opera Software Technology (Beijing) Co., Ltd.		PRC
14.         Hern Labs AB		Sweden
15.         Opera Software Iceland, ehf		Iceland
16.         Opesa South Africa (Pty) Limited		South Africa
17.         O-Play Kenya Limited		Kenya
18.         O-Play Digital Services Ltd.		Nigeria
19.         Phoneserve Technologies Co. Ltd.		Kenya

 

Schedule III-A

 

 

SCHEDULE IV

 

LIST OF LOCKED-UP PARTIES

 

All directors and executive officers of the Company:

 

·

Yahui Zhou

 

·

Hongyi Zhou

 

·

Han Fang

 

·

Lori Wheeler Naess

 

·

Trond Riiber Knudsen

 

·

Frode Jacobsen

 

·

Lin Song

 

All shareholders of the Company:

 

·

Kunlun Tech Limited

 

·

Keeneyes Future Holding Inc.

 

·

Qifei International Development Co. Limited

 

·

Golden Brick Capital Private Equity Fund I L.P.

 

Private Placement investors:

 

·

Tospring Technology Limited

 

·

IDG China Capital Fund III L.P.

 

·

IDG China Capital III Investors L.P.

 

Schedule IV

 

 

EXHIBIT A

 

FORM OF LOCK-UP LETTER

 

            , 2018

 

China International Capital Corporation Hong Kong Securities Limited

 

29th Floor, One International Finance Centre

1 Harbour View Street

Central, Hong Kong

 

Citigroup Global Markets Inc. 

388 Greenwich Street 

New York, NY 10013 

United States

 

Dear Ladies and Gentlemen:

 

The undersigned understands that China International Capital Corporation Hong Kong Securities Limited and Citigroup Global Markets Inc., as representatives (each, a “Representative,” and collectively, the “Representatives”) of the several underwriters (the “Underwriters”) under the Underwriting Agreement, propose to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Opera Limited, an exempted company incorporated with limited liability under the laws of the Cayman Islands (the “Company”), providing for the public offering (the “Public Offering”) by the several Underwriters, including the Representatives, of a certain number of ordinary shares, par value US$0.0001 per share, of the Company (the “Ordinary Shares”) in the form of American Depositary Shares (“American Depositary Shares”).

  

Exhibit A

 

 

To induce the Underwriters that may participate in the Public Offering to continue their efforts in connection with the Public Offering, the undersigned hereby agrees that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, during the period commencing on the date hereof and ending 180 days after the date of the final prospectus (the “Restricted Period”) relating to the Public Offering (the “Prospectus”), (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any Ordinary Shares or American Depositary Shares (collectively, the “Securities”) beneficially owned (as such term is used in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)), by the undersigned or any other securities so owned convertible into or exercisable or exchangeable for the Securities or (2) enter into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of the Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of the Securities or such other securities of the Company, in cash or otherwise[, or (3) request the Company to file a registration statement under the Securities Act of 1933, as amended with respect to any Securities owned or to be owned by the undersigned]¹. The foregoing sentence shall not apply to (a) transactions relating to the Securities or other securities of the Company acquired in open market transactions after the completion of the Public Offering, provided that no filing under Section 16(a) of the Exchange Act shall be required or shall be voluntarily made in connection with subsequent sales of Ordinary Shares or other securities acquired in such open market transactions, (b) transfers of shares of the Securities or any security convertible into the Securities as a bona fide gift, (c) distributions of shares of the Securities or any security convertible into the Securities to limited partners or stockholders of the undersigned; (d) transfer of the shares or the Securities or any security convertible into the Securities (i) through will or intestacy to immediate family members or (ii) to any trust for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, or (e) transfer to the Company for the primary purpose of satisfying any tax or other governmental withholding obligation, through cashless surrender or otherwise, with respect to any award of equity-based compensation granted pursuant to the Company’s equity incentive plans that are disclosed in the prospectus or in connection with tax or other obligations as a result of testate succession or intestate distribution; provided that in the case of any transfer or distribution pursuant to clause (b), (c), (d) or (e), (i) each donee or distributee shall sign and deliver to the Representatives a lock-up letter substantially in the form of this letter and (ii) no filing under Section 16(a) of the Exchange Act, reporting a reduction in beneficial ownership of the Securities, shall be required or shall be voluntarily made during the Restricted Period, or (f) the establishment of a trading plan pursuant to Rule 10b5-1 under the Exchange Act for the transfer of the Securities, provided that such plan does not provide for the transfer of the Securities during the Restricted Period and to the extent a public announcement or filing under the Exchange Act, if any, is required of or voluntarily made by or on behalf of the undersigned or the Company regarding the establishment of such plan, such announcement or filing shall include a statement to the effect that no transfer of the Securities may be made under such plan during the Restricted Period[; or (g) surrender its Ordinary Shares to the Company for purposes of retiring them as treasury stock]². In addition, the undersigned agrees that, without the prior written consent of the Representatives on behalf of the Underwriters, it will not, during the Restricted Period, make any demand for or exercise any right with respect to, the registration of any Securities or any security convertible into or exercisable or exchangeable for the Securities. The undersigned hereby also agrees and consents to the entry of stop transfer instructions with the Company’s transfer agent and registrar against the transfer of the undersigned’s Securities unless such transfer is in compliance with the foregoing restrictions.

 

[If the undersigned is an officer or director of the Company, the undersigned further agrees that the foregoing provisions shall be equally applicable to any issuer-directed Securities the undersigned may purchase in the Public Offering.

 

If the undersigned is an officer or director of the Company, (i) the Representatives agree that, at least three business days before the effective date of any release or waiver of the foregoing restrictions in connection with a transfer of the Securities, one of the Representatives will notify the Company of the impending release or waiver, and (ii) the Company has agreed in the Underwriting Agreement to announce the impending release or waiver by press release through a major news service at least two business days before the effective date of the release or waiver. Any release or waiver granted by the Representatives hereunder to any such officer or director shall only be effective two business days after the publication date of such press release. The provisions of this paragraph will not apply if (a) the release or waiver is effected solely to permit a transfer not for consideration and (b) the transferee has agreed in writing to be bound by the same terms described in this letter to the extent and for the duration that such terms remain in effect at the time of the transfer.]³

 

¹ Insert if the undersigned is an existing shareholder.

 

² Insert if the undersigned is Qifei International Development Co., Ltd. or Golden Brick Capital Private Equity Fund I L.P.

 

³ Insert if the undersigned is an executive officer or director of the Company.

 

 

The undersigned understands that the Company and the Underwriters are relying upon this letter in proceeding toward consummation of the Public Offering. The undersigned further understands that this letter is irrevocable and shall be binding upon the undersigned’s heirs, legal representatives, successors and assigns.

 

Whether or not the Public Offering actually occurs depends on a number of factors, including market conditions. Any Public Offering will only be made pursuant to an Underwriting Agreement, the terms of which are subject to negotiation between the Company and the Representatives on behalf of the Underwriters. This letter shall terminate and be of no further force or effect if the Underwriting Agreement is terminated pursuant to its terms.

 

This letter is governed by, and to be construed in accordance with, the internal laws of the State of New York, without regard to the conflict of laws principles thereof.

 

	Very truly yours,
	(Name)
	(Address)

  

 

EXHIBIT B ⁴

 

FORM OF WAIVER OF LOCK-UP

 

            [Date]

 

[Name and Address of Officer or Director Requesting Waiver]

 

Dear Mr./Ms. [Name]:

 

This letter is being delivered to you in connection with the offering by Opera Limited (the “Company”) of [●] ordinary shares, par value US$0.0001 per share, of the Company in the form of [●] American depositary shares, and the lock-up letter dated _______, (the “Lock-up Letter”), executed by you in connection with such offering, and your request for a [waiver] [release] dated ________, with respect to [●] ordinary shares (the “Shares”).

 

The undersigned hereby agrees to [waive] [release] the transfer restrictions set forth in the Lock-up Letter, but only with respect to the Shares, effective ________; provided, however, that such [waiver] [release] is conditioned on the Company announcing the impending [waiver] [release] by press release through a major news service at least two business days before effectiveness of such [waiver] [release]. This letter will serve as notice to the Company of the impending [waiver] [release].

 

Except as expressly [waived] [released] hereby, the Lock-up Letter shall remain in full force and effect.

 

	Very truly yours,
	Acting severally on behalf of themselves and the several Underwriters named in Schedule I the Underwriting Agreement dated [●]
	China International Capital Corporation Hong Kong Securities Limited

	By:
			Name:
			Title:

 

4

Insert if the undersigned is an executive officer or director of the Company.

 

Exhibit B

 

 

	Citigroup Global Markets Inc
	By:
			Name:
			Title:

 

cc: Company

 

 

FORM OF PRESS RELEASE

 

Opera Limited

 

[Date]

 

Opera Limited (the “Company”) announced today that [China International Capital Corporation Hong Kong Securities Limited and Citigroup Global Markets Inc.], the joint book-running managers in the Company’s recent public sale of [●] the ordinary shares in the form of [●] American depositary shares is [waiving] [releasing] a lock-up restriction with respect to ________ ordinary shares (the “Shares”) of the Company held by [certain officers or directors] [an officer or director] of the Company. The [waiver] [release] will take effect on ________, 20    , and the Shares may be sold on or after such date.

 

This press release is not an offer for sale of the securities in the United States or in any other jurisdiction where such offer is prohibited, and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the United States Securities Act of 1933, as amended.

 

Form of Press Release

 

 

Exhibit 4.3

 

===============================================================

OPERA LIMITED

AND

THE BANK OF NEW YORK MELLON

As Depositary

AND

OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES

Deposit Agreement

__________, 2018

===============================================================

 

 

TABLE OF CONTENTS

ARTICLE 1. DEFINITIONS

SECTION 1.1. American Depositary Shares.

SECTION 1.2. Commission.

SECTION 1.3. Company.

SECTION 1.4. Custodian.

SECTION 1.5. Delisting Event.

SECTION 1.6. Deliver; Surrender.

SECTION 1.7. Deposit Agreement.

SECTION 1.8. Depositary; Depositary’s Office.

SECTION 1.9. Deposited Securities.

SECTION 1.10. Disseminate.

SECTION 1.11. Dollars.

SECTION 1.12. DTC.

SECTION 1.13. Foreign Registrar.

SECTION 1.14. Holder.

SECTION 1.15. Insolvency Event.

SECTION 1.16. Owner.

SECTION 1.17. Receipts.

SECTION 1.18. Registrar.

SECTION 1.19. Replacement.

SECTION 1.20. Restricted Securities.

SECTION 1.21. Securities Act of 1933.

SECTION 1.22. Shares.

SECTION 1.23. SWIFT.

SECTION 1.24. Termination Option Event.

ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES

SECTION 2.1. Form of Receipts; Registration and Transferability of American Depositary Shares.

SECTION 2.2. Deposit of Shares.

SECTION 2.3. Delivery of American Depositary Shares.

SECTION 2.4. Registration of Transfer of American Depositary Shares; Combination and Split-up of Receipts; Interchange of Certificated and Uncertificated American Depositary Shares.

SECTION 2.5. Surrender of American Depositary Shares and Withdrawal of Deposited Securities.

SECTION 2.6. Limitations on Delivery, Transfer and Surrender of American Depositary Shares.

SECTION 2.7. Lost Receipts, etc.

SECTION 2.8. Cancellation and Destruction of Surrendered Receipts.

SECTION 2.9. [Reserved]

SECTION 2.10. DTC Direct Registration System and Profile Modification System.

 

 

 

ARTICLE 3. CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES

SECTION 3.1. Filing Proofs, Certificates and Other Information.

SECTION 3.2. Liability of Owner for Taxes.

SECTION 3.3. Warranties on Deposit of Shares.

SECTION 3.4. Disclosure of Interests.

ARTICLE 4. THE DEPOSITED SECURITIES

SECTION 4.1. Cash Distributions.

SECTION 4.2. Distributions Other Than Cash, Shares or Rights.

SECTION 4.3. Distributions in Shares.

SECTION 4.4. Rights.

SECTION 4.5. Conversion of Foreign Currency.

SECTION 4.6. Fixing of Record Date.

SECTION 4.7. Voting of Deposited Shares.

SECTION 4.8. Tender and Exchange Offers; Redemption, Replacement or Cancellation of Deposited Securities.

SECTION 4.9. Reports.

SECTION 4.10. Lists of Owners.

SECTION 4.11. Withholding.

ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY

SECTION 5.1. Maintenance of Office and Transfer Books by the Depositary.

SECTION 5.2. Prevention or Delay of Performance by the Company or the Depositary.

SECTION 5.3. Obligations of the Depositary and the Company.

SECTION 5.4. Resignation and Removal of the Depositary.

SECTION 5.5. The Custodians.

SECTION 5.6. Notices and Reports.

SECTION 5.7. Distribution of Additional Shares, Rights, etc.

SECTION 5.8. Indemnification.

SECTION 5.9. Charges of Depositary.

SECTION 5.10. Retention of Depositary Documents.

SECTION 5.11. Exclusivity.

SECTION 5.12. Information for Regulatory Compliance.

ARTICLE 6. AMENDMENT AND TERMINATION

SECTION 6.1. Amendment.

SECTION 6.2. Termination.

 

 

ARTICLE 7. MISCELLANEOUS

SECTION 7.1. Counterparts; Signatures.

SECTION 7.2. No Third Party Beneficiaries.

SECTION 7.3. Severability.

SECTION 7.4. Owners and Holders as Parties; Binding Effect.

SECTION 7.5. Notices.

SECTION 7.6. Appointment of Agent for Service of Process; Submission to Jurisdiction; Jury Trial Waiver.

SECTION 7.7. Waiver of Immunities.

SECTION 7.8. Governing Law.

 

DEPOSIT AGREEMENT

DEPOSIT AGREEMENT dated as of __________, 2018 among OPERA LIMITED, a company incorporated under the laws of the Cayman Islands (herein called the Company), THE BANK OF NEW YORK MELLON, a New York banking corporation (herein called the Depositary), and all Owners and Holders (each as hereinafter defined) from time to time of American Depositary Shares issued hereunder.

W I T N E S S E T H:

WHEREAS, the Company desires to provide, as set forth in this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of the Company from time to time with the Depositary or with the Custodian (as hereinafter defined) under this Deposit Agreement, for the creation of American Depositary Shares representing the Shares so deposited and for the execution and delivery of American Depositary Receipts evidencing the American Depositary Shares; and

WHEREAS, the American Depositary Receipts are to be substantially in the form of Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as set forth in this Deposit Agreement;

NOW, THEREFORE, in consideration of the premises, it is agreed by and between the parties hereto as follows:

ARTICLE 1.                  DEFINITIONS

The following definitions shall for all purposes, unless otherwise clearly indicated, apply to the respective terms used in this Deposit Agreement:

SECTION 1.1.            American Depositary Shares.

The term “American Depositary Shares” shall mean the securities created under this Deposit Agreement representing rights with respect to the Deposited Securities. American Depositary Shares may be certificated securities evidenced by Receipts or uncertificated securities. The form of Receipt annexed as Exhibit A to this Deposit Agreement shall be the prospectus required under the Securities Act of 1933 for sales of both certificated and uncertificated American Depositary Shares. Except for those provisions of this Deposit Agreement that refer specifically to Receipts, all the provisions of this Deposit Agreement shall apply to both certificated and uncertificated American Depositary Shares.

Each American Depositary Share shall represent the number of Shares specified in Exhibit A to this Deposit Agreement, except that, if there is a distribution upon Deposited Securities covered by Section 4.3, a change in Deposited Securities covered by Section 4.8 with respect to which additional American Depositary Shares are not delivered or a sale of Deposited Securities under Section 3.2 or 4.8, each American Depositary Share shall thereafter represent the amount of Shares or other Deposited Securities that are then on deposit per American Depositary Share after giving effect to that distribution, change or sale.

 

SECTION 1.2.            Commission.

The term “Commission” shall mean the Securities and Exchange Commission of the United States or any successor governmental agency in the United States.

SECTION 1.3.            Company.

The term “Company” shall mean Opera Limited, a company incorporated under the laws of the Cayman Islands, and its successors.

SECTION 1.4.            Custodian.

The term “Custodian” shall mean The Hongkong and Shanghai Banking Corporation Limited, as custodian for the Depositary in Hong Kong for the purposes of this Deposit Agreement, and any other firm or corporation the Depositary appoints under Section 5.5 as a substitute or additional custodian under this Deposit Agreement, and shall also mean all of them collectively.

SECTION 1.5.            Delisting Event.

A “Delisting Event” occurs if the American Depositary Shares are delisted from a securities exchange on which the American Depositary Shares were listed and the Company has not listed or applied to list the American Depositary Shares on any other securities exchange.

SECTION 1.6.            Deliver; Surrender.

(a) The term “deliver”, or its noun form, when used with respect to Shares or other Deposited Securities, shall mean (i) book-entry transfer of those Shares or other Deposited Securities to an account maintained by an institution authorized under applicable law to effect transfers of such securities designated by the person entitled to that delivery or (ii) physical transfer of certificates evidencing those Shares or other Deposited Securities registered in the name of, or duly endorsed or accompanied by proper instruments of transfer to, the person entitled to that delivery.

(b) The term “deliver”, or its noun form, when used with respect to American Depositary Shares, shall mean (i) registration of those American Depositary Shares in the name of DTC or its nominee and book-entry transfer of those American Depositary Shares to an account at DTC designated by the person entitled to that delivery, (ii) registration of those American Depositary Shares not evidenced by a Receipt on the books of the Depositary in the name requested by the person entitled to that delivery and mailing to that person of a statement confirming that registration or (iii) if requested by the person entitled to that delivery, execution and delivery at the Depositary’s Office to the person entitled to that delivery of one or more Receipts evidencing those American Depositary Shares registered in the name requested by that person.

(c) The term “surrender”, when used with respect to American Depositary Shares, shall mean (i) one or more book-entry transfers of American Depositary Shares to the DTC account of the Depositary, (ii) delivery to the Depositary at its Office of an instruction to surrender American Depositary Shares not evidenced by a Receipt or (iii) surrender to the Depositary at its Office of one or more Receipts evidencing American Depositary Shares.

 

SECTION 1.7.            Deposit Agreement.

The term “Deposit Agreement” shall mean this Deposit Agreement, as it may be amended from time to time in accordance with the provisions of this Deposit Agreement.

SECTION 1.8.            Depositary; Depositary’s Office.

The term “Depositary” shall mean The Bank of New York Mellon, a New York banking corporation, and any successor as depositary under this Deposit Agreement. The term “Office”, when used with respect to the Depositary, shall mean the office at which its depositary receipts business is administered, which, at the date of this Deposit Agreement, is located at 101 Barclay Street, New York, New York 10286.

SECTION 1.9.            Deposited Securities.

The term “Deposited Securities” as of any time shall mean Shares at such time deposited or deemed to be deposited under this Deposit Agreement, including without limitation, Shares that have not been successfully delivered upon surrender of American Depositary Shares, and any and all other securities, property and cash received by the Depositary or the Custodian in respect of Deposited Securities and at that time held under this Deposit Agreement.

SECTION 1.10.        Disseminate.

The term “Disseminate,” when referring to a notice or other information to be sent by the Depositary to Owners, shall mean (i) sending that information to Owners in paper form by mail or another means or (ii) with the consent of Owners, another procedure that has the effect of making the information available to Owners, which may include (A) sending the information by electronic mail or electronic messaging or (B) sending in paper form or by electronic mail or messaging a statement that the information is available and may be accessed by the Owner on an Internet website and that it will be sent in paper form upon request by the Owner, when that information is so available and is sent in paper form as promptly as practicable upon request.

SECTION 1.11.        Dollars.

The term “Dollars” shall mean United States dollars.

SECTION 1.12.        DTC.

The term “DTC” shall mean The Depository Trust Company or its successor.

SECTION 1.13.        Foreign Registrar.

The term “Foreign Registrar” shall mean the entity that carries out the duties of registrar for the Shares and any other agent of the Company for the transfer and registration of Shares, including, without limitation, any securities depository for the Shares.

 

SECTION 1.14.        Holder.

The term “Holder” shall mean any person holding a Receipt or a security entitlement or other interest in American Depositary Shares, whether for its own account or for the account of another person, but that is not the Owner of that Receipt or those American Depositary Shares.

SECTION 1.15.        Insolvency Event.

An “Insolvency Event” occurs if the Company institutes proceedings to be adjudicated as bankrupt or insolvent, consents to the institution of bankruptcy or insolvency proceedings against it, files a petition or answer or consent seeking reorganization or relief under any applicable law in respect of bankruptcy or insolvency, consents to the filing of any petition of that kind or to the appointment of a receiver, liquidator, assignee, trustee, custodian or sequestrator (or other similar official) of it or any substantial part of its property or makes an assignment for the benefit of creditors, or if information becomes publicly available indicating that unsecured claims against the Company are not expected to be paid.

SECTION 1.16.        Owner.

The term “Owner” shall mean the person in whose name American Depositary Shares are registered on the books of the Depositary maintained for that purpose.

SECTION 1.17.        Receipts.

The term “Receipts” shall mean the American Depositary Receipts issued under this Deposit Agreement evidencing certificated American Depositary Shares, as the same may be amended from time to time in accordance with the provisions of this Deposit Agreement.

SECTION 1.18.        Registrar.

The term “Registrar” shall mean any corporation or other entity that is appointed by the Depositary to register American Depositary Shares and transfers of American Depositary Shares as provided in this Deposit Agreement.

SECTION 1.19.        Replacement.

The term “Replacement” shall have the meaning assigned to it in Section 4.8.

SECTION 1.20.        Restricted Securities.

The term “Restricted Securities” shall mean Shares that (i) are “restricted securities,” as defined in Rule 144 under the Securities Act of 1933, except for Shares that could be resold in reliance on Rule 144 without any conditions, (ii) are beneficially owned by an officer, director (or person performing similar functions) or other affiliate of the Company, (iii) otherwise would require registration under the Securities Act of 1933 in connection with the public offer and sale thereof in the United States or (iv) are subject to other restrictions on sale or deposit under the laws of the Cayman Islands, a shareholder agreement or the articles of association or similar document of the Company.

 

SECTION 1.21.        Securities Act of 1933.

The term “Securities Act of 1933” shall mean the United States Securities Act of 1933, as from time to time amended.

SECTION 1.22.        Shares.

The term “Shares” shall mean ordinary shares of the Company that are validly issued and outstanding, fully paid and nonassessable and that were not issued in violation of any pre-emptive or similar rights of the holders of outstanding securities of the Company; provided, however, that, if there shall occur any change in nominal or par value, a split-up or consolidation or any other reclassification or, upon the occurrence of an event described in Section 4.8, an exchange or conversion in respect of the Shares of the Company, the term “Shares” shall thereafter also mean the successor securities resulting from such change in nominal value, split-up or consolidation or such other reclassification or such exchange or conversion.

SECTION 1.23.        SWIFT.

The term “SWIFT” shall mean the financial messaging network operated by the Society for Worldwide Interbank Financial Telecommunication, or its successor.

SECTION 1.24.        Termination Option Event.

The term “Termination Option Event” shall mean an event of a kind defined as such in Section 4.1, 4.2 or 4.8.

ARTICLE

2.    FORM OF RECEIPTS, DEPOSIT OF SHARES, DELIVERY, TRANSFER AND SURRENDER OF AMERICAN DEPOSITARY SHARES

SECTION 2.1.            Form of Receipts; Registration and Transferability of American Depositary Shares.

Definitive Receipts shall be substantially in the form set forth in Exhibit A to this Deposit Agreement, with appropriate insertions, modifications and omissions, as permitted under this Deposit Agreement. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose, unless that Receipt has been (i) executed by the Depositary by the manual signature of a duly authorized officer of the Depositary or (ii) executed by the facsimile signature of a duly authorized officer of the Depositary and countersigned by the manual signature of a duly authorized signatory of the Depositary or the Registrar or a co-registrar. The Depositary shall maintain books on which (x) each Receipt so executed and delivered as provided in this Deposit Agreement and each transfer of that Receipt and (y) all American Depositary Shares delivered as provided in this Deposit Agreement and all registrations of transfer of American Depositary Shares, shall be registered. A Receipt bearing the facsimile signature of a person that was at any time a proper officer of the Depositary shall, subject to the other provisions of this paragraph, bind the Depositary, even if that person was not a proper officer of the Depositary on the date of issuance of that Receipt.

 

The Receipts and statements confirming registration of American Depositary Shares may have incorporated in or attached to them such legends or recitals or modifications not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or regulations thereunder or with the rules and regulations of any securities exchange upon which American Depositary Shares may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts and American Depositary Shares are subject by reason of the date of issuance of the underlying Deposited Securities or otherwise.

American Depositary Shares evidenced by a Receipt, when the Receipt is properly endorsed or accompanied by proper instruments of transfer, shall be transferable as certificated registered securities under the laws of the State of New York. American Depositary Shares not evidenced by Receipts shall be transferable as uncertificated registered securities under the laws of the State of New York. The Depositary, notwithstanding any notice to the contrary, may treat the Owner of American Depositary Shares as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes, and neither the Depositary nor the Company shall have any obligation or be subject to any liability under this Deposit Agreement to any Holder of American Depositary Shares (but only to the Owner of those American Depositary Shares).

SECTION 2.2.            Deposit of Shares.

Subject to the terms and conditions of this Deposit Agreement, Shares or evidence of rights to receive Shares may be deposited under this Deposit Agreement by delivery thereof to any Custodian, accompanied by any appropriate instruments or instructions for transfer, or endorsement, in form satisfactory to the Custodian.

As conditions of accepting Shares for deposit, the Depositary may require (i) any certification required by the Depositary or the Custodian in accordance with the provisions of this Deposit Agreement, (ii) a written order directing the Depositary to deliver to, or upon the written order of, the person or persons stated in that order American Depositary Shares representing those deposited Shares, (iii) evidence satisfactory to the Depositary that those Shares have been re-registered in the books of the Company or the Foreign Registrar in the name of the Depositary, a Custodian or a nominee of the Depositary or a Custodian, (iv) evidence satisfactory to the Depositary that any necessary approval has been granted by any governmental body in each applicable jurisdiction and (v) an agreement or assignment, or other instrument satisfactory to the Depositary, that provides for the prompt transfer to the Custodian of any dividend, or right to subscribe for additional Shares or to receive other property, that any person in whose name those Shares are or have been recorded may thereafter receive upon or in respect of those Shares, or, in lieu thereof, such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.

 

The Depositary and the Custodian shall refuse to accept Shares for deposit if the Depositary has received a notice from the Company that the Company has restricted transfer of those Shares under the Company’s constitutional documents or any applicable laws or that the deposit would result in any violation of the Company’s constitutional documents or any applicable laws or any agreement between the Company and the holder of those Shares.

At the request and risk and expense of a person proposing to deposit Shares, and for the account of that person, the Depositary may receive certificates for Shares to be deposited, together with the other instruments specified in this Section, for the purpose of forwarding those Share certificates to the Custodian for deposit under this Deposit Agreement.

The Depositary shall instruct each Custodian that, upon each delivery to a Custodian of a certificate or certificates for Shares to be deposited under this Deposit Agreement, together with the other documents specified in this Section, that Custodian shall, as soon as transfer and recordation can be accomplished, present that certificate or those certificates to the Company or the Foreign Registrar, if applicable, for transfer and recordation of the Shares being deposited in the name of the Depositary or its nominee or that Custodian or its nominee.

Deposited Securities shall be held by the Depositary or by a Custodian for the account and to the order of the Depositary or at such other place or places as the Depositary shall determine.

SECTION 2.3.            Delivery of American Depositary Shares.

The Depositary shall instruct each Custodian that, upon receipt by that Custodian of any deposit pursuant to Section 2.2, together with the other documents or evidence required under that Section, that Custodian shall notify the Depositary of that deposit and the person or persons to whom or upon whose written order American Depositary Shares are deliverable in respect thereof. Upon receiving a notice of a deposit from a Custodian, or upon the receipt of Shares or evidence of the right to receive Shares by the Depositary, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall deliver, to or upon the order of the person or persons entitled thereto, the number of American Depositary Shares issuable in respect of that deposit, but only upon payment to the Depositary of the fees and expenses of the Depositary for the delivery of those American Depositary Shares as provided in Section 5.9, and of all taxes and governmental charges and fees payable in connection with that deposit and the transfer of the deposited Shares. However, the Depositary shall deliver only whole numbers of American Depositary Shares.

SECTION 2.4.            Registration of Transfer of American Depositary Shares; Combination and Split-up of Receipts; Interchange of Certificated and Uncertificated American Depositary Shares.

The Depositary, subject to the terms and conditions of this Deposit Agreement, shall register a transfer of American Depositary Shares on its transfer books upon (i) in the case of certificated American Depositary Shares, surrender of the Receipt evidencing those American Depositary Shares, by the Owner or by a duly authorized attorney, properly endorsed or accompanied by proper instruments of transfer or (ii) in the case of uncertificated American Depositary Shares, receipt from the Owner of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10), and, in either case, duly stamped as may be required by the laws of the State of New York and of the United States of America. Upon registration of a transfer, the Depositary shall deliver the transferred American Depositary Shares to or upon the order of the person entitled thereto.

 

 

The Depositary, subject to the terms and conditions of this Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose of effecting a split-up or combination of such Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of American Depositary Shares requested, evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered.

The Depositary, upon surrender of certificated American Depositary Shares for the purpose of exchanging for uncertificated American Depositary Shares, shall cancel the Receipt evidencing those certificated American Depositary Shares and send the Owner a statement confirming that the Owner is the owner of the same number of uncertificated American Depositary Shares. The Depositary, upon receipt of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10) from the Owner of uncertificated American Depositary Shares for the purpose of exchanging for certificated American Depositary Shares, shall cancel those uncertificated American Depositary Shares and register and deliver to the Owner a Receipt evidencing the same number of certificated American Depositary Shares.

The Depositary may appoint one or more co-transfer agents for the purpose of effecting registration of transfers of American Depositary Shares and combinations and split-ups of Receipts at designated transfer offices on behalf of the Depositary. In carrying out its functions, a co-transfer agent may require evidence of authority and compliance with applicable laws and other requirements by Owners or persons entitled to American Depositary Shares and will be entitled to protection and indemnity to the same extent as the Depositary.

SECTION 2.5.            Surrender of American Depositary Shares and Withdrawal of Deposited Securities.

Upon surrender of American Depositary Shares for the purpose of withdrawal of the Deposited Securities represented thereby and payment of the fee of the Depositary for the surrender of American Depositary Shares as provided in Section 5.9 and payment of all taxes and governmental charges payable in connection with that surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of this Deposit Agreement, the Owner of those American Depositary Shares shall be entitled to delivery (to the extent delivery can then be lawfully and practicably made), to or as instructed by that Owner, of the amount of Deposited Securities at the time represented by those American Depositary Shares, but not any money or other property as to which a record date for distribution to Owners has passed (since money or other property of that kind will be delivered or paid on the scheduled payment date to the Owner as of that record date), and except that the Depositary shall not be required to accept surrender of American Depositary Shares for the purpose of withdrawal to the extent it would require delivery of a fraction of a Deposited Security. That delivery shall be made, as provided in this Section, without unreasonable delay.

 

 

As a condition of accepting a surrender of American Depositary Shares for the purpose of withdrawal of Deposited Securities, the Depositary may require (i) that each surrendered Receipt be properly endorsed in blank or accompanied by proper instruments of transfer in blank and (ii) that the surrendering Owner execute and deliver to the Depositary a written order directing the Depositary to cause the Deposited Securities being withdrawn to be delivered to or upon the written order of a person or persons designated in that order.

Thereupon, the Depositary shall direct the Custodian to deliver, subject to Sections 2.6, 3.1 and 3.2, the other terms and conditions of this Deposit Agreement and local market rules and practices, to the surrendering Owner or to or upon the written order of the person or persons designated in the order delivered to the Depositary as above provided, the amount of Deposited Securities represented by the surrendered American Depositary Shares, and the Depositary may charge the surrendering Owner a fee and its expenses for giving that direction by cable (including SWIFT) or facsimile transmission.

If Deposited Securities are delivered physically upon surrender of American Depositary Shares for the purpose of withdrawal, that delivery will be made at the Custodian’s office, except that, at the request, risk and expense of an Owner surrendering American Depositary Shares for withdrawal of Deposited Securities, and for the account of that Owner, the Depositary shall direct the Custodian to forward any cash or other property comprising, and forward a certificate or certificates, if applicable, and other proper documents of title, if any, for, the Deposited Securities represented by the surrendered American Depositary Shares to the Depositary for delivery at the Depositary’s Office or to another address specified in the order received from the surrendering Owner.

SECTION 2.6.            Limitations on Delivery, Transfer and Surrender of American Depositary Shares.

As a condition precedent to the delivery, registration of transfer or surrender of any American Depositary Shares or split-up or combination of any Receipt or withdrawal of any Deposited Securities, the Depositary, Custodian or Registrar may require payment from the depositor of Shares or the presenter of the Receipt or instruction for registration of transfer or surrender of American Depositary Shares not evidenced by a Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees as provided in this Deposit Agreement, may require the production of proof satisfactory to it as to the identity and genuineness of any signature and may also require compliance with any regulations the Depositary may establish consistent with the provisions of this Deposit Agreement, including, without limitation, this Section 2.6.

The delivery of American Depositary Shares against deposit of Shares generally or against deposit of particular Shares may be suspended, or the registration of transfer of American Depositary Shares in particular instances may be refused, or the registration of transfer of outstanding American Depositary Shares generally may be suspended, during any period when the transfer books of the Depositary are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of this Deposit Agreement, or for any other reason. Notwithstanding anything to the contrary in this Deposit Agreement, the surrender of outstanding American Depositary Shares and withdrawal of Deposited Securities may not be suspended, subject only to (i) temporary delays caused by closing of the transfer books of the Depositary or the Company or the Foreign Registrar, if applicable, or the deposit of Shares in connection with voting at a shareholders’ meeting, or the payment of dividends, (ii) the payment of fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the American Depositary Shares or to the withdrawal of the Deposited Securities.

 

 

The Depositary shall not knowingly accept for deposit under this Deposit Agreement any Shares that, at the time of deposit, are Restricted Securities.

SECTION 2.7.            Lost Receipts, etc.

If a Receipt is mutilated, destroyed, lost or stolen, the Depositary shall deliver to the Owner the American Depositary Shares evidenced by that Receipt in uncertificated form or, if requested by the Owner, execute and deliver a new Receipt of like tenor in exchange and substitution for such mutilated Receipt, upon surrender and cancellation of that mutilated Receipt, or in lieu of and in substitution for that destroyed, lost or stolen Receipt. However, before the Depositary will deliver American Depositary Shares in uncertificated form or execute and deliver a new Receipt, in substitution for a destroyed, lost or stolen Receipt, the Owner must (a) file with the Depositary (i) a request for that replacement before the Depositary has notice that the Receipt has been acquired by a bona fide purchaser and (ii) a sufficient indemnity bond and (b) satisfy any other reasonable requirements imposed by the Depositary.

SECTION 2.8.            Cancellation and Destruction of Surrendered Receipts.

The Depositary shall cancel all Receipts surrendered to it and is authorized to destroy Receipts so cancelled.

SECTION 2.9.            [Reserved]

SECTION 2.10.        DTC Direct Registration System and Profile Modification System.

(a) Notwithstanding the provisions of Section 2.4, the parties acknowledge that DTC’s Direct Registration System (“DRS”) and Profile Modification System (“Profile”) apply to the American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC that facilitates interchange between registered holding of uncertificated securities and holding of security entitlements in those securities through DTC and a DTC participant. Profile is a required feature of DRS that allows a DTC participant, claiming to act on behalf of an Owner of American Depositary Shares, to direct the Depositary to register a transfer of those American Depositary Shares to DTC or its nominee and to deliver those American Depositary Shares to the DTC account of that DTC participant without receipt by the Depositary of prior authorization from the Owner to register that transfer.

(b) In connection with DRS/Profile, the parties acknowledge that the Depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an Owner in requesting a registration of transfer and delivery as described in paragraph (a) above has the actual authority to act on behalf of that Owner (notwithstanding any requirements under the Uniform Commercial Code). For the avoidance of doubt, the provisions of Sections 5.3 and 5.8 apply to the matters arising from the use of the DRS/Profile. The parties agree that the Depositary’s reliance on and compliance with instructions received by the Depositary through the DRS/Profile system and otherwise in accordance with this Deposit Agreement shall not constitute negligence or bad faith on the part of the Depositary.

 

 

ARTICLE

3.    CERTAIN OBLIGATIONS OF OWNERS AND HOLDERS OF AMERICAN DEPOSITARY SHARES

SECTION 3.1.            Filing Proofs, Certificates and Other Information.

Any person presenting Shares for deposit or any Owner or Holder may be required from time to time to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration of transfer of American Depositary Shares, the distribution of any dividend or other distribution or of the proceeds thereof or the delivery of any Deposited Securities until that proof or other information is filed or those certificates are executed or those representations and warranties are made.

SECTION 3.2.            Liability of Owner for Taxes.

If any tax or other governmental charge shall become payable by the Custodian or the Depositary with respect to or in connection with any American Depositary Shares or any Deposited Securities represented by any American Depositary Shares or in connection with a transaction to which Section 4.8 applies, that tax or other governmental charge shall be payable by the Owner of those American Depositary Shares to the Depositary. The Depositary may refuse to register any transfer of those American Depositary Shares or any withdrawal of Deposited Securities represented by those American Depositary Shares until that payment is made, and may withhold any dividends or other distributions or the proceeds thereof, or may sell for the account of the Owner any part or all of the Deposited Securities represented by those American Depositary Shares and apply those dividends or other distributions or the net proceeds of any sale of that kind in payment of that tax or other governmental charge but, even after a sale of that kind, the Owner of those American Depositary Shares shall remain liable for any deficiency. The Depositary shall distribute any net proceeds of a sale made under this Section that are not used to pay taxes or governmental charges to the Owners entitled to them in accordance with Section 4.1. If the number of Shares represented by each American Depositary Share decreases as a result of a sale of Deposited Securities under this Section, the Depositary may call for surrender of the American Depositary Shares to be exchanged on a mandatory basis for a lesser number of American Depositary Shares and may sell American Depositary Shares to the extent necessary to avoid distributing fractions of American Depositary Shares in that exchange and distribute the net proceeds of that sale to the Owners entitled to them.

 

SECTION 3.3.            Warranties on Deposit of Shares.

Every person depositing Shares under this Deposit Agreement shall be deemed thereby to represent and warrant that those Shares and each certificate therefor, if applicable, are validly issued, fully paid and nonassessable and were not issued in violation of any preemptive or similar rights of the holders of outstanding securities of the Company and that the person making that deposit is duly authorized so to do. Every depositing person shall also be deemed to represent that the Shares, at the time of deposit, are not Restricted Securities. All representations and warranties deemed made under this Section shall survive the deposit of Shares and delivery of American Depositary Shares.

SECTION 3.4.            Disclosure of Interests.

When required in order to comply with applicable laws and regulations or the articles of association or similar document of the Company, the Company may from time to time request each Owner and Holder to provide to the Depositary information relating to: (a) the capacity in which it holds American Depositary Shares, (b) the identity of any Holders or other persons or entities then or previously interested in those American Depositary Shares and the nature of those interests and (c) any other matter where disclosure of such matter is required for that compliance.   Each Owner and Holder agrees to provide all information known to it in response to a request made pursuant to this Section.  Each Holder consents to the disclosure by the Depositary and the Owner or any other Holder through which it holds American Depositary Shares, directly or indirectly, of all information responsive to a request made pursuant to this Section relating to that Holder that is known to that Owner or other Holder.  The Depositary agrees to use reasonable efforts to comply with written instructions requesting that the Depositary forward any request authorized under this Section to the Owners and to forward to the Company any responses it receives in response to that request. The Depositary may charge the Company a fee and its expenses for complying with requests under this Section 3.4.

ARTICLE 4.                  THE DEPOSITED SECURITIES

SECTION 4.1.            Cash Distributions.

Whenever the Depositary receives any cash dividend or other cash distribution on Deposited Securities, the Depositary shall, subject to the provisions of Section 4.5, convert that dividend or other distribution into Dollars and distribute the amount thus received (net of the fees and expenses of the Depositary as provided in Section 5.9) to the Owners entitled thereto, in proportion to the number of American Depositary Shares representing those Deposited Securities held by them respectively; provided, however, that if the Custodian or the Depositary shall be required to withhold and does withhold from that cash dividend or other cash distribution an amount on account of taxes or other governmental charges, the amount distributed to the Owners of the American Depositary Shares representing those Deposited Securities shall be reduced accordingly. However, the Depositary will not pay any Owner a fraction of one cent, but will round each Owner’s entitlement to the nearest whole cent.

The Company or its agent will remit to the appropriate governmental agency in each applicable jurisdiction all amounts withheld and owing to such agency.

 

If a cash distribution would represent a return of all or substantially all the value of the Deposited Securities underlying American Depositary Shares, the Depositary may require surrender of those American Depositary Shares and may require payment of or deduct the fee for surrender of American Depositary Shares (whether or not it is also requiring surrender of American Depositary Shares) as a condition of making that cash distribution. A distribution of that kind shall be a Termination Option Event.

SECTION 4.2.            Distributions Other Than Cash, Shares or Rights.

Subject to the provisions of Sections 4.11 and 5.9, whenever the Depositary receives any distribution other than a distribution described in Section 4.1, 4.3 or 4.4 on Deposited Securities (but not in exchange for or in conversion or in lieu of Deposited Securities), the Depositary shall cause the securities or property received by it to be distributed to the Owners entitled thereto, after deduction or upon payment of any fees and expenses of the Depositary and any taxes or other governmental charges, in proportion to the number of American Depositary Shares representing such Deposited Securities held by them respectively, in any manner that the Depositary deems equitable and practicable for accomplishing that distribution (which may be a distribution of depositary shares representing the securities received); provided, however, that if in the opinion of the Depositary such distribution cannot be made proportionately among the Owners entitled thereto, or if for any other reason (including, but not limited to, any requirement that the Company or the Depositary withhold an amount on account of taxes or other governmental charges or that securities received must be registered under the Securities Act of 1933 in order to be distributed to Owners or Holders) the Depositary deems such distribution not to be lawful and feasible, the Depositary may adopt such other method as it may deem equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the public or private sale of the securities or property thus received, or any part thereof, and distribution of the net proceeds of any such sale (net of the fees and expenses of the Depositary as provided in Section 5.9) to the Owners entitled thereto, all in the manner and subject to the conditions set forth in Section 4.1. The Depositary may withhold any distribution of securities under this Section 4.2 if it has not received satisfactory assurances from the Company that the distribution does not require registration under the Securities Act of 1933. The Depositary may sell, by public or private sale, an amount of securities or other property it would otherwise distribute under this Section 4.2 that is sufficient to pay its fees and expenses in respect of that distribution.

If a distribution under this Section 4.2 would represent a return of all or substantially all the value of the Deposited Securities underlying American Depositary Shares, the Depositary may require surrender of those American Depositary Shares and may require payment of or deduct the fee for surrender of American Depositary Shares (whether or not it is also requiring surrender of American Depositary Shares) as a condition of making that distribution. A distribution of that kind shall be a Termination Option Event.

SECTION 4.3.            Distributions in Shares.

Whenever the Depositary receives any distribution on Deposited Securities consisting of a dividend in, or free distribution of, Shares, the Depositary may, and shall if the Company so requests in writing, deliver to the Owners entitled thereto, in proportion to the number of American Depositary Shares representing those Deposited Securities held by them respectively, an aggregate number of American Depositary Shares representing the amount of Shares received as that dividend or free distribution, subject to the terms and conditions of this Deposit Agreement with respect to the deposit of Shares and issuance of American Depositary Shares, including withholding of any tax or governmental charge as provided in Section 4.11 and payment of the fees and expenses of the Depositary as provided in Section 5.9 (and the Depositary may sell, by public or private sale, an amount of the Shares received (or American Depositary Shares representing those Shares) sufficient to pay its fees and expenses in respect of that distribution). In lieu of delivering fractional American Depositary Shares, the Depositary may sell the amount of Shares represented by the aggregate of those fractions (or American Depositary Shares representing those Shares) and distribute the net proceeds, all in the manner and subject to the conditions described in Section 4.1. If and to the extent that additional American Depositary Shares are not delivered and Shares or American Depositary Shares are not sold, each American Depositary Share shall thenceforth also represent the additional Shares distributed on the Deposited Securities represented thereby.

 

If the Company declares a distribution in which holders of Deposited Securities have a right to elect whether to receive cash, Shares or other securities or a combination of those things, or a right to elect to have a distribution sold on their behalf, the Depositary may, after consultation with the Company, make that right of election available for exercise by Owners in any manner the Depositary considers to be lawful and practical. As a condition of making a distribution election right available to Owners, the Depositary may require satisfactory assurances from the Company that doing so does not require registration of any securities under the Securities Act of 1933.

SECTION 4.4.            Rights.

(a) If rights are granted to the Depositary in respect of deposited Shares to purchase additional Shares or other securities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary should take in connection with that grant of rights. The Depositary may, to the extent deemed by it to be lawful and practical (i) if requested in writing by the Company, grant to all or certain Owners rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not exercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary shall permit the rights to lapse unexercised.

(b) If the Depositary will act under (a)(i) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon instruction from an applicable Owner in the form the Depositary specified and upon payment by that Owner to the Depositary of an amount equal to the purchase price of the securities to be received upon the exercise of the rights, the Depositary shall, on behalf of that Owner, exercise the rights and purchase the securities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under this Deposit Agreement and deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary has received an opinion of United States counsel that is satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.

 

(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon (i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such documents as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will deliver those rights as requested by that Owner.

(d) If the Depositary will act under (a)(iii) above, the Depositary will use reasonable efforts to sell the rights in proportion to the number of American Depositary Shares held by the applicable Owners and pay the net proceeds to the Owners otherwise entitled to the rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise.

(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be conditions of any delivery of securities or payment of cash proceeds under this Section 4.4.

(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make rights available to or exercise rights on behalf of Owners in general or any Owner in particular, or to sell rights.

SECTION 4.5.            Conversion of Foreign Currency.

Whenever the Depositary or the Custodian receives foreign currency, by way of dividends or other distributions or the net proceeds from the sale of securities, property or rights, and if at the time of the receipt thereof the foreign currency so received can in the judgment of the Depositary be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the United States, the Depositary shall convert or cause to be converted by sale or in any other manner that it may determine that foreign currency into Dollars, and those Dollars shall be distributed to the Owners entitled thereto. A cash distribution may be made upon an averaged or other practicable basis without regard to any distinctions among Owners based on exchange restrictions, the date of delivery of any American Depositary Shares or otherwise and shall be net of any expenses of conversion into Dollars incurred by the Depositary as provided in Section 5.9.

If a conversion of foreign currency or the repatriation or distribution of Dollars can be effected only with the approval or license of any government or agency thereof, the Depositary may, but will not be required to, file an application for that approval or license.

 

If the Depositary determines that in its judgment any foreign currency received by the Depositary or the Custodian is not convertible on a reasonable basis into Dollars transferable to the United States, or if any approval or license of any government or agency thereof that is required for such conversion is not filed or sought by the Depositary or is not obtained within a reasonable period as determined by the Depositary, the Depositary may distribute the foreign currency received by the Depositary to, or in its discretion may hold such foreign currency uninvested and without liability for interest thereon for the respective accounts of, the Owners entitled to receive the same.

If any conversion of foreign currency, in whole or in part, cannot be effected for distribution to some of the Owners entitled thereto, the Depositary may in its discretion make that conversion and distribution in Dollars to the extent practicable and permissible to the Owners entitled thereto and may distribute the balance of the foreign currency received by the Depositary to, or hold that balance uninvested and without liability for interest thereon for the account of, the Owners entitled thereto.

The Depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will retain for its own account.  The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made under this Deposit Agreement and the rate that the Depositary or its affiliate receives when buying or selling foreign currency for its own account.  The Depositary makes no representation that the exchange rate used or obtained in any currency conversion under this Deposit Agreement will be the most favorable rate that could be obtained at the time or that the method by which that rate will be determined will be the most favorable to Owners, subject to the Depositary’s obligations under Section 5.3. The methodology used to determine exchange rates used in currency conversions is available upon request.

SECTION 4.6.            Fixing of Record Date.

Whenever a cash dividend, cash distribution or any other distribution is made on Deposited Securities or rights to purchase Shares or other securities are issued with respect to Deposited Securities (which rights will be delivered to or exercised or sold on behalf of Owners in accordance with Section 4.4) or the Depositary receives notice that a distribution or issuance of that kind will be made, or whenever the Depositary receives notice that a meeting of holders of Shares will be held in respect of which the Company has requested the Depositary to send a notice under Section 4.7, or whenever the Depositary will assess a fee or charge against the Owners, or whenever the Depositary causes a change in the number of Shares that are represented by each American Depositary Share, or whenever the Depositary otherwise finds it necessary or convenient, the Depositary shall fix a record date, which shall be the same as, or as near as practicable to, any corresponding record date set by the Company with respect to Shares, (a) for the determination of the Owners (i) who shall be entitled to receive the benefit of that dividend or other distribution or those rights, (ii) who shall be entitled to give instructions for the exercise of voting rights at that meeting or (iii) who shall be responsible for that fee or charge or (iv) for any other purpose for which the record date was set, or (b) on or after which each American Depositary Share will represent the changed number of Shares. Subject to the provisions of Sections 4.1 through 4.5 and to the other terms and conditions of this Deposit Agreement, the Owners on a record date fixed by the Depositary shall be entitled to receive the amount distributable by the Depositary with respect to that dividend or other distribution or those rights or the net proceeds of sale thereof in proportion to the number of American Depositary Shares held by them respectively, to give voting instructions or to act in respect of the other matter for which that record date was fixed, or be responsible for that fee or charge, as the case may be.

 

SECTION 4.7.            Voting of Deposited Shares.

(a) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be in the sole discretion of the Depositary, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Cayman Islands law and of the articles of association or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).

(b) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.

(c) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (a) above in time to enable Owners to give instructions to the Depositary prior to the Instruction Cutoff Date.

(d) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (a) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 30 days prior to the meeting date.

SECTION 4.8.            Tender and Exchange Offers; Redemption, Replacement or Cancellation of Deposited Securities.

(a) The Depositary shall not tender any Deposited Securities in response to any voluntary cash tender offer, exchange offer or similar offer made to holders of Deposited Securities (a “Voluntary Offer”), except when instructed in writing to do so by an Owner surrendering American Depositary Shares and subject to any conditions or procedures the Depositary may require.

 

(b) If the Depositary receives a written notice that Deposited Securities have been redeemed for cash or otherwise purchased for cash in a transaction that is mandatory and binding on the Depositary as a holder of those Deposited Securities (a “Redemption”), the Depositary, at the expense of the Company, shall (i) if required, surrender Deposited Securities that have been redeemed to the issuer of those securities or its agent on the redemption date, (ii) Disseminate a notice to Owners (A) notifying them of that Redemption, (B) calling for surrender of a corresponding number of American Depositary Shares and (C) notifying them that the called American Depositary Shares have been converted into a right only to receive the money received by the Depositary upon that Redemption and those net proceeds shall be the Deposited Securities to which Owners of those converted American Depositary Shares shall be entitled upon surrenders of those American Depositary Shares in accordance with Section 2.5 or 6.2 and (iii) distribute the money received upon that Redemption to the Owners entitled to it upon surrender by them of called American Depositary Shares in accordance with Section 2.5 (and, for the avoidance of doubt, Owners shall not be entitled to receive that money under Section 4.1). If the Redemption affects less than all the Deposited Securities, the Depositary shall call for surrender a corresponding portion of the outstanding American Depositary Shares and only those American Depositary Shares will automatically be converted into a right to receive the net proceeds of the Redemption. The Depositary shall allocate the American Depositary Shares converted under the preceding sentence among the Owners pro-rata to their respective holdings of American Depositary Shares immediately prior to the Redemption, except that the allocations may be adjusted so that no fraction of a converted American Depositary Share is allocated to any Owner. A Redemption of all or substantially all of the Deposited Securities shall be a Termination Option Event.

(c) If the Depositary is notified of or there occurs any change in nominal value or any subdivision, combination or any other reclassification of the Deposited Securities or any recapitalization, reorganization, sale of assets substantially as an entirety, merger or consolidation affecting the issuer of the Deposited Securities or to which it is a party that is mandatory and binding on the Depositary as a holder of Deposited Securities and, as a result, securities or other property have been or will be delivered in exchange, conversion, replacement or in lieu of, Deposited Securities (a “Replacement”), the Depositary shall, if required, surrender the old Deposited Securities affected by that Replacement of Shares and hold, as new Deposited Securities under this Deposit Agreement, the new securities or other property delivered to it in that Replacement. However, the Depositary may elect to sell those new Deposited Securities if in the opinion of the Depositary it is not lawful or not practical for it to hold those new Deposited Securities under this Deposit Agreement because those new Deposited Securities may not be distributed to Owners without registration under the Securities Act of 1933 or for any other reason, at public or private sale, at such places and on such terms as it deems proper and proceed as if those new Deposited Securities had been Redeemed under paragraph (b) above. A Replacement shall be a Termination Option Event.

(d) In the case of a Replacement where the new Deposited Securities will continue to be held under this Deposit Agreement, the Depositary may call for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing the new Deposited Securities and the number of those new Deposited Securities represented by each American Depositary Share. If the number of Shares represented by each American Depositary Share decreases as a result of a Replacement, the Depositary may call for surrender of the American Depositary Shares to be exchanged on a mandatory basis for a lesser number of American Depositary Shares and may sell American Depositary Shares to the extent necessary to avoid distributing fractions of American Depositary Shares in that exchange and distribute the net proceeds of that sale to the Owners entitled to them.

 

(e) If there are no Deposited Securities with respect to American Depositary Shares, including if the Deposited Securities are cancelled, or the Deposited Securities with respect to American Depositary Shares have become apparently worthless, the Depositary may call for surrender of those American Depositary Shares or may cancel those American Depositary Shares, upon notice to Owners, and a Termination Option Event occurs.

SECTION 4.9.            Reports.

The Depositary shall make available for inspection by Owners at its Office any reports and communications, including any proxy solicitation material, received from the Company which are both (a) received by the Depositary as the holder of the Deposited Securities and (b) made generally available to the holders of those Deposited Securities by the Company. The Company shall furnish reports and communications, including any proxy soliciting material to which this Section applies, to the Depositary in English, to the extent those materials are required to be translated into English pursuant to any regulations of the Commission.

SECTION 4.10.        Lists of Owners.

Upon written request by the Company, the Depositary shall, at the expense of the Company, furnish to it a list, as of a recent date, of the names, addresses and American Depositary Share holdings of all Owners.

SECTION 4.11.        Withholding.

If the Depositary determines that any distribution received or to be made by the Depositary (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge that the Depositary is obligated to withhold, the Depositary may sell, by public or private sale, all or a portion of the distributed property (including Shares and rights to subscribe therefor) in the amounts and manner the Depositary deems necessary and practicable to pay those taxes or charges, and the Depositary shall distribute the net proceeds of that sale, after deduction of those taxes or charges, to the Owners entitled thereto in proportion to the number of American Depositary Shares held by them respectively.

Services for Owners and Holders that may permit them to obtain reduced rates of tax withholding at source or reclaim excess tax withheld, and the fees and costs associated with using services of that kind, are not provided under, and are outside the scope of, this Deposit Agreement.

Each Owner and Holder agrees to indemnify the Company, the Depositary, the Custodian and their respective directors, employees, agents and affiliates for, and hold each of them harmless against, any claim by any governmental authority with respect to taxes, additions to tax, penalties or interest arising out of any refund of taxes, reduced withholding at source or other tax benefit received by it.

 

ARTICLE 5.                  THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY

SECTION 5.1.            Maintenance of Office and Transfer Books by the Depositary.

Until termination of this Deposit Agreement in accordance with its terms, the Depositary shall maintain facilities for the execution and delivery, registration, registration of transfers and surrender of American Depositary Shares in accordance with the provisions of this Deposit Agreement.

The Depositary shall keep books for the registration of American Depositary Shares, which shall be open for inspection by the Owners at the Depositary’s Office during regular business hours, provided that such inspection is not for the purpose of communicating with Owners in the interest of a business or object other than the business of the Company or a matter related to this Deposit Agreement or the American Depositary Shares.

The Depositary may close the transfer books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties under this Deposit Agreement.

If any American Depositary Shares are listed on one or more stock exchanges, the Depositary shall act as Registrar or appoint a Registrar or one or more co-registrars for registry of those American Depositary Shares in accordance with any requirements of that exchange or those exchanges.

The Company shall have the right, at all reasonable times, upon written request, to inspect transfer and registration records of the Depositary, the Registrar and any co-transfer agents or co-registrars and to require them to supply, at the Company’s expense (unless otherwise agreed in writing between the Company and the Depositary) copies of such portions of their records as the Company may reasonably request.

SECTION 5.2.            Prevention or Delay of Performance by the Company or the Depositary.

Neither the Depositary nor the Company nor any of their respective directors, employees, agents or affiliates shall incur any liability to any Owner or Holder:

(i) if by reason of (A) any provision of any present or future law or regulation or other act of the government of the United States, any State of the United States or any other state or jurisdiction, or of any governmental or regulatory authority or stock exchange; (B) (in the case of the Depositary only) any provision, present or future, of the articles of association or similar document of the Company, or by reason of any provision of any securities issued or distributed by the Company, or any offering or distribution thereof; or (C) any event or circumstance, whether natural or caused by a person or persons, that is beyond the ability of the Depositary or the Company, as the case may be, to prevent or counteract by reasonable care or effort (including, but not limited to, earthquakes, floods, severe storms, fires, explosions, war, terrorism, civil unrest, labor disputes or criminal acts; interruptions or malfunctions of utility services, Internet or other communications lines or systems; unauthorized access to or attacks on computer systems or websites; or other failures or malfunctions of computer hardware or software or other systems or equipment), the Depositary or the Company is, directly or indirectly, prevented from, forbidden to or delayed in, or could be subject to any civil or criminal penalty on account of doing or performing and therefore does not do or perform, any act or thing that, by the terms of this Deposit Agreement or the Deposited Securities, it is provided shall be done or performed;

 

(ii) for any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement (including any determination by the Depositary to take, or not take, any action that this Deposit Agreement provides the Depositary may take);

(iii) for the inability of any Owner or Holder to benefit from any distribution, offering, right or other benefit that is made available to holders of Deposited Securities but is not, under the terms of this Deposit Agreement, made available to Owners or Holders; or

(iv) for any special, consequential or punitive damages for any breach of the terms of this Deposit Agreement.

Where, by the terms of a distribution to which Section 4.1, 4.2 or 4.3 applies, or an offering to which Section 4.4 applies, or for any other reason, that distribution or offering may not be made available to Owners, and the Depositary may not dispose of that distribution or offering on behalf of Owners and make the net proceeds available to Owners, then the Depositary shall not make that distribution or offering available to Owners, and shall allow any rights, if applicable, to lapse.

SECTION 5.3.            Obligations of the Depositary and the Company.

The Company assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to any Owner or Holder, except that the Company agrees to perform its obligations specifically set forth in this Deposit Agreement without negligence or bad faith.

The Depositary assumes no obligation nor shall it be subject to any liability under this Deposit Agreement to any Owner or Holder (including, without limitation, liability with respect to the validity or worth of the Deposited Securities), except that the Depositary agrees to perform its obligations specifically set forth in this Deposit Agreement without negligence or bad faith, and the Depositary shall not be a fiduciary or have any fiduciary duty to Owners or Holders.

Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of any Deposited Securities or in respect of the American Depositary Shares on behalf of any Owner or Holder or any other person.

Each of the Depositary and the Company may rely, and shall be protected in relying 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.

 

Neither the Depositary nor the Company shall be liable for any action or non-action by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Owner or any other person believed by it in good faith to be competent to give such advice or information.

The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with any matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises the Depositary performed its obligations without negligence or bad faith while it acted as Depositary.

The Depositary shall not be liable for the acts or omissions of any securities depository, clearing agency or settlement system in connection with or arising out of book-entry settlement of American Depositary Shares or Deposited Securities or otherwise.

In the absence of bad faith on its part, the Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities, or for the manner in which any such vote is cast or the effect of any such vote.

The Depositary shall have no duty to make any determination or provide any information as to the tax status of the Company. Neither the Company nor the Depositary shall have any liability for any tax consequences that may be incurred by Owners or Holders as a result of owning or holding American Depositary Shares. None of the Company, the Depositary or the Custodian shall be liable for the inability or failure of an Owner or Holder to obtain the benefit of a foreign tax credit, reduced rate of withholding or refund of amounts withheld in respect of tax or any other tax benefit.

No disclaimer of liability under the Securities Act of 1933 is intended by any provision of this Deposit Agreement.

SECTION 5.4.            Resignation and Removal of the Depositary.

The Depositary may at any time resign as Depositary hereunder by written notice of its election so to do delivered to the Company, to become effective upon the appointment of a successor depositary and its acceptance of that appointment as provided in this Section. The effect of resignation if a successor depositary is not appointed is provided for in Section 6.2.

The Depositary may at any time be removed by the Company by 120 days’ prior written notice of that removal, to become effective upon the later of (i) the 120th day after delivery of the notice to the Depositary and (ii) the appointment of a successor depositary and its acceptance of its appointment as provided in this Section.

If the Depositary resigns or is removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, The City of New York. Every successor depositary shall execute and deliver to the Company an instrument in writing accepting its appointment under this Deposit Agreement. If the Depositary receives notice from the Company that a successor depositary has been appointed following its resignation or removal, the Depositary, upon payment of all sums due it from the Company, shall deliver to its successor a register listing all the Owners and their respective holdings of outstanding American Depositary Shares and shall deliver the Deposited Securities to or to the order of its successor. When the Depositary has taken the actions specified in the preceding sentence (i) the successor shall become the Depositary and shall have all the rights and shall assume all the duties of the Depositary under this Deposit Agreement and (ii) the predecessor depositary shall cease to be the Depositary and shall be discharged and released from all obligations under this Deposit Agreement, except for its duties under Section 5.8 with respect to the time before that discharge. A successor Depositary shall notify the Owners of its appointment as soon as practical after assuming the duties of Depositary.

 

Any corporation or other entity into or with which the Depositary may be merged or consolidated shall be the successor of the Depositary without the execution or filing of any document or any further act.

SECTION 5.5.            The Custodians.

The Custodian shall be subject at all times and in all respects to the directions of the Depositary and shall be responsible solely to it. The Depositary in its discretion may at any time appoint a substitute or additional custodian or custodians, each of which shall thereafter be one of the Custodians under this Deposit Agreement. If the Depositary receives notice that a Custodian is resigning and, upon the effectiveness of that resignation there would be no Custodian acting under this Deposit Agreement, the Depositary shall, as promptly as practicable after receiving that notice, appoint a substitute custodian or custodians, each of which shall thereafter be a Custodian under this Deposit Agreement. The Depositary shall notify the Company of the appointment of a substitute or additional Custodian as promptly as practicable. The Depositary shall require any Custodian that resigns or is removed to deliver all Deposited Securities held by it to another Custodian.

SECTION 5.6.            Notices and Reports.

If the Company takes or decides to take any corporate action of a kind that is addressed in Sections 4.1 to 4.4, or 4.6 to 4.8, or that effects or will effect a change of the name or legal structure of the Company, or that effects or will effect a change to the Shares, the Company shall notify the Depositary and the Custodian of that action or decision as soon as it is lawful and practical to give that notice.  The notice shall be in English and shall include all details that the Company is required to include in any notice to any governmental or regulatory authority or securities exchange or is required to make available generally to holders of Shares by publication or otherwise.

The Company will arrange for the translation into English, if not already in English, to the extent required pursuant to any regulations of the Commission, and the prompt transmittal by the Company to the Depositary and the Custodian of all notices and any other reports and communications which are made generally available by the Company to holders of its Shares. If requested in writing by the Company, the Depositary will Disseminate, at the Company’s expense, those notices, reports and communications to all Owners or otherwise make them available to Owners in a manner that the Company specifies as substantially equivalent to the manner in which those communications are made available to holders of Shares and compliant with the requirements of any securities exchange on which the American Depositary Shares are listed. The Company will timely provide the Depositary with the quantity of such notices, reports, and communications, as requested by the Depositary from time to time, in order for the Depositary to effect that Dissemination.

 

The Company represents that as of the date of this Deposit Agreement, the statements in Article 11 of the Receipt with respect to the Company’s obligation to file periodic reports under the United States Securities Exchange Act of 1934, as amended, are true and correct. The Company agrees to promptly notify the Depositary upon becoming aware of any change in the truth of any of those statements.

SECTION 5.7.            Distribution of Additional Shares, Rights, etc.

If the Company or any affiliate of the Company determines to make any issuance or distribution of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities convertible into Shares, or (4) rights to subscribe for such securities (each a “Distribution”), the Company shall notify the Depositary in writing in English as promptly as practicable and in any event before the Distribution starts and, if requested in writing by the Depositary, the Company shall promptly furnish to the Depositary either (i) evidence satisfactory to the Depositary that the Distribution is registered under the Securities Act of 1933 or (ii) a written opinion from U.S. counsel for the Company that is reasonably satisfactory to the Depositary, stating that the Distribution does not require, or, if made in the United States, would not require, registration under the Securities Act of 1933.

The Company agrees with the Depositary that neither the Company nor any company controlled by, controlling or under common control with the Company will at any time deposit any Shares that, at the time of deposit, are Restricted Securities.

SECTION 5.8.            Indemnification.

The Company agrees to indemnify the Depositary, its directors, employees, agents and affiliates and each Custodian against, and hold each of them harmless from, any liability or expense (including, but not limited to any fees and expenses incurred in seeking, enforcing or collecting such indemnity and the fees and expenses of counsel) that may arise out of or in connection with (a) any registration with the Commission of American Depositary Shares or Deposited Securities or the offer or sale thereof in the United States or (b) acts performed or omitted, pursuant to the provisions of or in connection with this Deposit Agreement and the American Depositary Shares, as the same may be amended, modified or supplemented from time to time, (i) by either the Depositary or a Custodian or their respective directors, employees, agents and affiliates, except for any liability or expense arising out of the negligence or bad faith of either of them, or (ii) by the Company or any of its directors, employees, agents and affiliates.

The Depositary agrees to indemnify the Company, its directors, employees, agents and affiliates and hold them harmless from any liability or expense that may arise out of acts performed or omitted by the Depositary or any Custodian or their respective directors, employees, agents and affiliates due to their negligence or bad faith.

 

SECTION 5.9.            Charges of Depositary.

The following charges shall be incurred by any party depositing or withdrawing Shares or by any party surrendering American Depositary Shares or to whom American Depositary Shares 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 American Depositary Shares or Deposited Securities or a delivery of American Depositary Shares pursuant to Section 4.3), or by Owners, as applicable: (1) taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares generally on the Share register of the Company or Foreign Registrar and applicable to transfers of Shares to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals hereunder, (3) such cable (including SWIFT) and facsimile transmission fees and expenses as are expressly provided in this Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.5, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the delivery of American Depositary Shares pursuant to Section 2.3, 4.3 or 4.4 and the surrender of American Depositary Shares pursuant to Section 2.5 or 6.2, (6) a fee of $.05 or less per American Depositary Share (or portion thereof) for any cash distribution made pursuant to this Deposit Agreement, including, but not limited to Sections 4.1 through 4.4 and Section 4.8, (7) a fee for the distribution of securities pursuant to Section 4.2 or of rights pursuant to Section 4.4 (where the Depositary will not exercise or sell those rights on behalf of Owners), such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities under this Deposit Agreement (for purposes of this item 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Owners, (8) in addition to any fee charged under item 6 above, a fee of $.05 or less per American Depositary Share (or portion thereof) per annum for depositary services, which will be payable as provided in item 9 below, and (9) any other charges payable by the Depositary or the Custodian, any of the Depositary's or Custodian’s agents or the agents of the Depositary's or Custodian’s agents, in connection with the servicing of Shares or other Deposited Securities (which charges shall be assessed against Owners as of the date or dates set by the Depositary in accordance with Section 4.6 and shall be payable at the sole discretion of the Depositary by billing those Owners for those charges or by deducting those charges from one or more cash dividends or other cash distributions).

The Depositary may collect any of its fees by deduction from any cash distribution payable, or by selling a portion of any securities to be distributed, to Owners that are obligated to pay those fees.

In performing its duties under this Deposit Agreement, the Depositary may use brokers, dealers, foreign currency dealers or other service providers that are owned by or affiliated with the Depositary and that may earn or share fees, spreads or commissions.

The Depositary, subject to Section 2.9, may own and deal in any class of securities of the Company and its affiliates and in American Depositary Shares.

 

SECTION 5.10.        Retention of Depositary Documents.

The Depositary is authorized to destroy those documents, records, bills and other data compiled during the term of this Deposit Agreement at the times permitted by the laws or regulations governing the Depositary.

SECTION 5.11.        Exclusivity.

Without prejudice to the Company’s rights under Section 5.4, the Company agrees not to appoint any other depositary for issuance of depositary shares, depositary receipts or any similar securities or instruments so long as The Bank of New York Mellon is acting as Depositary under this Deposit Agreement.

SECTION 5.12.        Information for Regulatory Compliance.

Each of the Company and the Depositary shall provide to the other, as promptly as practicable, information from its records or otherwise available to it that is reasonably requested by the other to permit the other to comply with applicable law or requirements of governmental or regulatory authorities.

ARTICLE 6.                  AMENDMENT AND TERMINATION

SECTION 6.1.            Amendment.

The form of the Receipts and any provisions of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary without the consent of Owners or Holders in any respect that they may deem necessary or desirable. Any amendment that would impose or increase any fees or charges (other than taxes and other governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or that would otherwise prejudice any substantial existing right of Owners, shall, however, not become effective as to outstanding American Depositary Shares until the expiration of 30 days after notice of that amendment has been Disseminated to the Owners of outstanding American Depositary Shares. Every Owner and Holder, at the time any amendment so becomes effective, shall be deemed, by continuing to hold American Depositary Shares or any interest therein, to consent and agree to that amendment and to be bound by this Deposit Agreement as amended thereby. Upon the effectiveness of an amendment to the form of Receipt, including a change in the number of Shares represented by each American Depositary Share, the Depositary may call for surrender of Receipts to be replaced with new Receipts in the amended form or call for surrender of American Depositary Shares to effect that change of ratio. In no event shall any amendment impair the right of the Owner to surrender American Depositary Shares and receive delivery of the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law.

SECTION 6.2.            Termination.

(a) The Company may initiate termination of this Deposit Agreement by notice to the Depositary. The Depositary may initiate termination of this Deposit Agreement if (i) at any time 60 days shall have expired after the Depositary delivered to the Company a written resignation notice and a successor depositary has not been appointed and accepted its appointment as provided in Section 5.4, (ii) an Insolvency Event or Delisting Event occurs with respect to the Company or (iii) a Termination Option Event has occurred or will occur. If termination of this Deposit Agreement is initiated, the Depositary shall Disseminate a notice of termination to the Owners of all American Depositary Shares then outstanding setting a date for termination (the “Termination Date”), which shall be at least 90 days after the date of that notice, and this Deposit Agreement shall terminate on that Termination Date.

 

(b) After the Termination Date, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary under Sections 5.8 and 5.9.

(c) At any time after the Termination Date, the Depositary may sell the Deposited Securities then held under this Deposit Agreement and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it hereunder, unsegregated and without liability for interest, for the pro rata benefit of the Owners of American Depositary Shares that remain outstanding, and those Owners will be general creditors of the Depositary with respect to those net proceeds and that other cash. After making that sale, the Depositary shall be discharged from all obligations under this Deposit Agreement, except (i) to account for the net proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of this Deposit Agreement and any applicable taxes or governmental charges) and (ii) for its obligations under Section 5.8 and (iii) to act as provided in paragraph (d) below.

(d) After the Termination Date, the Depositary shall continue to receive dividends and other distributions pertaining to Deposited Securities (that have not been sold), may sell rights and other property as provided in this Deposit Agreement and shall deliver Deposited Securities (or sale proceeds) upon surrender of American Depositary Shares (after payment or upon deduction, in each case, of the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of those American Depositary Shares in accordance with the terms and conditions of this Deposit Agreement and any applicable taxes or governmental charges). After the Termination Date, the Depositary shall not accept deposits of Shares or deliver American Depositary Shares. After the Termination Date, (i) the Depositary may refuse to accept surrenders of American Depositary Shares for the purpose of withdrawal of Deposited Securities (that have not been sold) or reverse previously accepted surrenders of that kind that have not settled if in its judgment the requested withdrawal would interfere with its efforts to sell the Deposited Securities, (ii) the Depositary will not be required to deliver cash proceeds of the sale of Deposited Securities until all Deposited Securities have been sold and (iii) the Depositary may discontinue the registration of transfers of American Depositary Shares and suspend the distribution of dividends and other distributions on Deposited Securities to the Owners and need not give any further notices or perform any further acts under this Deposit Agreement except as provided in this Section.

 

ARTICLE 7.                  MISCELLANEOUS

SECTION 7.1.            Counterparts; Signatures.

This Deposit Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of those counterparts shall constitute one and the same instrument. Copies of this Deposit Agreement shall be filed with the Depositary and the Custodians and shall be open to inspection by any Owner or Holder during regular business hours.

Any manual signature on this Deposit Agreement that is faxed, scanned or photocopied, and any electronic signature valid under the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001, et. seq., shall for all purposes have the same validity, legal effect and admissibility in evidence as an original manual signature, and the parties hereby waive any objection to the contrary.

SECTION 7.2.            No Third Party Beneficiaries.

This Deposit Agreement is for the exclusive benefit of the Company, the Depositary, the Owners and the Holders and their respective successors and shall not be deemed to give any legal or equitable right, remedy or claim whatsoever to any other person.

SECTION 7.3.            Severability.

In case any one or more of the provisions contained in this Deposit Agreement or in a Receipt should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained in this Deposit Agreement or that Receipt shall in no way be affected, prejudiced or disturbed thereby.

SECTION 7.4.            Owners and Holders as Parties; Binding Effect.

The Owners and Holders from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions of this Deposit Agreement and of the Receipts by acceptance of American Depositary Shares or any interest therein.

SECTION 7.5.            Notices.

Any and all notices to be given to the Company shall be in writing and shall be deemed to have been duly given if personally delivered or sent by domestic first class or international air mail or air courier or sent by facsimile transmission or email attaching a pdf or similar bit-mapped image of a signed writing, provided that receipt of the facsimile transmission or email has been confirmed by the recipient, addressed to Opera Limited, _________________________________________, Attention: _____________, or any other place to which the Company may have transferred its principal office with notice to the Depositary.

Any and all notices to be given to the Depositary shall be in writing and shall be deemed to have been duly given if in English and personally delivered or sent by first class domestic or international air mail or air courier or sent by facsimile transmission or email attaching a pdf or similar bit-mapped image of a signed writing, addressed to The Bank of New York Mellon, 101 Barclay Street, New York, New York 10286, Attention: Depositary Receipt Administration, or any other place to which the Depositary may have transferred its Office with notice to the Company.

 

Delivery of a notice to the Company or Depositary by mail or air courier shall be deemed effected when deposited, postage prepaid, in a post-office letter box or received by an air courier service. Delivery of a notice to the Company or Depositary sent by facsimile transmission or email shall be deemed effected when the recipient acknowledges receipt of that notice.

A notice to be given to an Owner shall be deemed to have been duly given when Disseminated to that Owner. Dissemination in paper form will be effective when personally delivered or sent by first class domestic or international air mail or air courier, addressed to that Owner at the address of that Owner as it appears on the transfer books for American Depositary Shares of the Depositary, or, if that Owner has filed with the Depositary a written request that notices intended for that Owner be mailed to some other address, at the address designated in that request. Dissemination in electronic form will be effective when sent in the manner consented to by the Owner to the electronic address most recently provided by the Owner for that purpose.

SECTION 7.6.            Appointment of Agent for Service of Process; Submission to Jurisdiction; Jury Trial Waiver.

The Company hereby (i) designates and appoints the person named in Exhibit A to this Deposit Agreement, located in the State of New York, as the Company's authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Deposit Agreement (a “Proceeding”), (ii) consents and submits to the jurisdiction of any state or federal court in the State of New York in which any Proceeding may be instituted and (iii) agrees that service of process upon said authorized agent shall be deemed in every respect effective service of process upon the Company in any Proceeding. The Company agrees to deliver to the Depositary, upon the execution and delivery of this Deposit Agreement, a written acceptance by the agent named in Exhibit A to this Deposit Agreement of its appointment as process agent. The Company further agrees to take any and all action, including the filing of any and all such documents and instruments, as may be necessary to continue that designation and appointment in full force and effect, or to appoint and maintain the appointment of another process agent located in the United States as required above, and to deliver to the Depositary a written acceptance by that agent of that appointment, for so long as any American Depositary Shares or Receipts remain outstanding or this Deposit Agreement remains in force. In the event the Company fails to maintain the designation and appointment of a process agent in the United States in full force and effect, the Company hereby waives personal service of process upon it and consents that a service of process in connection with a Proceeding may be made by certified or registered mail, return receipt requested, directed to the Company at its address last specified for notices under this Deposit Agreement, and service so made shall be deemed completed five (5) days after the same shall have been so mailed.

EACH PARTY TO THIS DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND HOLDER) HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THIS DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING, WITHOUT LIMITATION, ANY QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

 

SECTION 7.7.            Waiver of Immunities.

To the extent that the Company or any of its properties, assets or revenues may have or may hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, or from execution of judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Deposit Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any immunity of that kind and consents to relief and enforcement as provided above.

SECTION 7.8.            Governing Law.

This Deposit Agreement and the Receipts shall be interpreted in accordance with and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by the laws of the State of New York.

 

IN WITNESS WHEREOF, OPERA LIMITED and THE BANK OF NEW YORK MELLON have duly executed this Deposit Agreement as of the day and year first set forth above and all Owners and Holders shall become parties hereto upon acceptance by them of American Depositary Shares or any interest therein.

OPERA LIMITED

By:______________________

Name:

Title:

THE BANK OF NEW YORK MELLON,

as Depositary

By:______________________

Name:

Title:

 

 

EXHIBIT A

AMERICAN DEPOSITARY SHARES

(Each American Depositary Share represents

two deposited Shares)

THE BANK OF NEW YORK MELLON

AMERICAN DEPOSITARY RECEIPT

FOR ORDINARY SHARES OF

OPERA LIMITED

(INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS)

The Bank of New York Mellon, as depositary (hereinafter called the “Depositary”), hereby certifies that_________________________________________, or registered assigns IS THE OWNER OF _____________________________

AMERICAN DEPOSITARY SHARES

representing deposited ordinary shares (herein called “Shares”) of Opera Limited, incorporated under the laws of the Cayman Islands (herein called the “Company”). At the date hereof, each American Depositary Share represents two Shares deposited or subject to deposit under the Deposit Agreement (as such term is hereinafter defined) with a custodian for the Depositary (herein called the “Custodian”) that, as of the date of the Deposit Agreement, was The Hongkong and Shanghai Banking Corporation Limited located in Hong Kong. The Depositary's Office is located at a different address than its principal executive office. Its Office is located at 101 Barclay Street, New York, N.Y. 10286, and its principal executive office is located at 225 Liberty Street, New York, N.Y. 10286.

THE DEPOSITARY'S OFFICE ADDRESS IS

101 BARCLAY STREET, NEW YORK, N.Y. 10286

 

 

1.     THE DEPOSIT AGREEMENT.

This American Depositary Receipt is one of an issue (herein called “Receipts”), all issued and to be issued upon the terms and conditions set forth in the Deposit Agreement dated as of __________, 2018 (herein called the “Deposit Agreement”) among the Company, the Depositary, and all Owners and Holders from time to time of American Depositary Shares issued thereunder, each of whom by accepting American Depositary Shares agrees to become a party thereto and become bound by all the terms and conditions thereof. The Deposit Agreement sets forth the rights of Owners and Holders and the rights and duties of the Depositary in respect of the Shares deposited thereunder and any and all other securities, property and cash from time to time received in respect of those Shares and held thereunder (those Shares, securities, property, and cash are herein called “Deposited Securities”). Copies of the Deposit Agreement are on file at the Depositary's Office in New York City and at the office of the Custodian.

The statements made on the face and reverse of this Receipt are summaries of certain provisions of the Deposit Agreement and are qualified by and subject to the detailed provisions of the Deposit Agreement, to which reference is hereby made. Capitalized terms defined in the Deposit Agreement and not defined herein shall have the meanings set forth in the Deposit Agreement.

2.     SURRENDER OF AMERICAN DEPOSITARY SHARES AND WITHDRAWAL OF SHARES.

Upon surrender of American Depositary Shares for the purpose of withdrawal of the Deposited Securities represented thereby and payment of the fee of the Depositary for the surrender of American Depositary Shares as provided in Section 5.9 of the Deposit Agreement and payment of all taxes and governmental charges payable in connection with that surrender and withdrawal of the Deposited Securities, and subject to the terms and conditions of the Deposit Agreement, the Owner of those American Depositary Shares shall be entitled to delivery (to the extent delivery can then be lawfully and practicably made), to or as instructed by that Owner, of the amount of Deposited Securities at the time represented by those American Depositary Shares, but not any money or other property as to which a record date for distribution to Owners has passed (since money or other property of that kind will be delivered or paid on the scheduled payment date to the Owner as of that record date), and except that the Depositary shall not be required to accept surrender of American Depositary Shares for the purpose of withdrawal to the extent it would require delivery of a fraction of a Deposited Security. The Depositary shall direct the Custodian with respect to delivery of Deposited Securities and may charge the surrendering Owner a fee and its expenses for giving that direction by cable (including SWIFT) or facsimile transmission. If Deposited Securities are delivered physically upon surrender of American Depositary Shares for the purpose of withdrawal, that delivery will be made at the Custodian’s office, except that, at the request, risk and expense of the surrendering Owner, and for the account of that Owner, the Depositary shall direct the Custodian to forward any cash or other property comprising, and forward a certificate or certificates, if applicable, and other proper documents of title, if any, for, the Deposited Securities represented by the surrendered American Depositary Shares to the Depositary for delivery at the Depositary’s Office or to another address specified in the order received from the surrendering Owner.

 

3.     REGISTRATION OF TRANSFER OF AMERICAN DEPOSITARY SHARES; COMBINATION AND SPLIT-UP OF RECEIPTS; INTERCHANGE OF CERTIFICATED AND UNCERTIFICATED AMERICAN DEPOSITARY SHARES.

The Depositary, subject to the terms and conditions of the Deposit Agreement, shall register a transfer of American Depositary Shares on its transfer books upon (i) in the case of certificated American Depositary Shares, surrender of the Receipt evidencing those American Depositary Shares, by the Owner or by a duly authorized attorney, properly endorsed or accompanied by proper instruments of transfer or (ii) in the case of uncertificated American Depositary Shares, receipt from the Owner of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10 of that Agreement), and, in either case, duly stamped as may be required by the laws of the State of New York and of the United States of America. Upon registration of a transfer, the Depositary shall deliver the transferred American Depositary Shares to or upon the order of the person entitled thereto.

The Depositary, subject to the terms and conditions of the Deposit Agreement, shall upon surrender of a Receipt or Receipts for the purpose of effecting a split-up or combination of such Receipt or Receipts, execute and deliver a new Receipt or Receipts for any authorized number of American Depositary Shares requested, evidencing the same aggregate number of American Depositary Shares as the Receipt or Receipts surrendered.

The Depositary, upon surrender of certificated American Depositary Shares for the purpose of exchanging for uncertificated American Depositary Shares, shall cancel the Receipt evidencing those certificated American Depositary Shares and send the Owner a statement confirming that the Owner is the owner of the same number of uncertificated American Depositary Shares. The Depositary, upon receipt of a proper instruction (including, for the avoidance of doubt, instructions through DRS and Profile as provided in Section 2.10 of the Deposit Agreement) from the Owner of uncertificated American Depositary Shares for the purpose of exchanging for certificated American Depositary Shares, shall cancel those uncertificated American Depositary Shares and register and deliver to the Owner a Receipt evidencing the same number of certificated American Depositary Shares.

As a condition precedent to the delivery, registration of transfer, or surrender of any American Depositary Shares or split-up or combination of any Receipt or withdrawal of any Deposited Securities, the Depositary, the Custodian, or Registrar may require payment from the depositor of the Shares or the presenter of the Receipt or instruction for registration of transfer or surrender of American Depositary Shares not evidenced by a Receipt of a sum sufficient to reimburse it for any tax or other governmental charge and any stock transfer or registration fee with respect thereto (including any such tax or charge and fee with respect to Shares being deposited or withdrawn) and payment of any applicable fees as provided in the Deposit Agreement, may require the production of proof satisfactory to it as to the identity and genuineness of any signature and may also require compliance with any regulations the Depositary may establish consistent with the provisions of the Deposit Agreement.

The delivery of American Depositary Shares against deposit of Shares generally or against deposit of particular Shares may be suspended, or the registration of transfer of American Depositary Shares in particular instances may be refused, or the registration of transfer of outstanding American Depositary Shares generally may be suspended, during any period when the transfer books of the Depositary are closed, or if any such action is deemed necessary or advisable by the Depositary or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission, or under any provision of the Deposit Agreement, or for any other reason. Notwithstanding anything to the contrary in the Deposit Agreement or this Receipt, the surrender of outstanding American Depositary Shares and withdrawal of Deposited Securities may not be suspended subject only to (i) temporary delays caused by closing the transfer books of the Depositary or the Company or the Foreign Registrar, if applicable, or the deposit of Shares in connection with voting at a shareholders’ meeting, or the payment of dividends, (ii) the payment of fees, taxes and similar charges, and (iii) compliance with any U.S. or foreign laws or governmental regulations relating to the American Depositary Shares or to the withdrawal of the Deposited Securities. The Depositary shall not knowingly accept for deposit under the Deposit Agreement any Shares that, at the time of deposit, are Restricted Securities.

 

4.     LIABILITY OF OWNER FOR TAXES.

If any tax or other governmental charge shall become payable by the Custodian or the Depositary with respect to or in connection with any American Depositary Shares or any Deposited Securities represented by any American Depositary Shares or in connection with a transaction to which Section 4.8 of the Deposit Agreement applies, that tax or other governmental charge shall be payable by the Owner of those American Depositary Shares to the Depositary. The Depositary may refuse to register any transfer of those American Depositary Shares or any withdrawal of Deposited Securities represented by those American Depositary Shares until that payment is made, and may withhold any dividends or other distributions or the proceeds thereof, or may sell for the account of the Owner any part or all of the Deposited Securities represented by those American Depositary Shares, and may apply those dividends or other distributions or the net proceeds of any sale of that kind in payment of that tax or other governmental charge but, even after a sale of that kind, the Owner shall remain liable for any deficiency. The Depositary shall distribute any net proceeds of a sale made under Section 3.2 of the Deposit Agreement that are not used to pay taxes or governmental charges to the Owners entitled to them in accordance with Section 4.1 of the Deposit Agreement. If the number of Shares represented by each American Depositary Share decreases as a result of a sale of Deposited Securities under Section 3.2 of the Deposit Agreement, the Depositary may call for surrender of the American Depositary Shares to be exchanged on a mandatory basis for a lesser number of American Depositary Shares and may sell American Depositary Shares to the extent necessary to avoid distributing fractions of American Depositary Shares in that exchange and distribute the net proceeds of that sale to the Owners entitled to them.

5.     WARRANTIES ON DEPOSIT OF SHARES.

Every person depositing Shares under the Deposit Agreement shall be deemed thereby to represent and warrant that those Shares and each certificate therefor, if applicable, are validly issued, fully paid and nonassessable and were not issued in violation of any preemptive or similar rights of the holders of outstanding securities of the Company and that the person making that deposit is duly authorized so to do. Every depositing person shall also be deemed to represent that the Shares, at the time of deposit, are not Restricted Securities. All representations and warranties deemed made under Section 3.3 of the Deposit Agreement shall survive the deposit of Shares and delivery of American Depositary Shares.

 

6.     FILING PROOFS, CERTIFICATES, AND OTHER INFORMATION.

Any person presenting Shares for deposit or any Owner or Holder may be required from time to time to file with the Depositary or the Custodian such proof of citizenship or residence, exchange control approval, or such information relating to the registration on the books of the Company or the Foreign Registrar, if applicable, to execute such certificates and to make such representations and warranties, as the Depositary may deem necessary or proper. The Depositary may withhold the delivery or registration of transfer of any American Depositary Shares, the distribution of any dividend or other distribution or of the proceeds thereof or the delivery of any Deposited Securities until that proof or other information is filed or those certificates are executed or those representations and warranties are made. As conditions of accepting Shares for deposit, the Depositary may require (i) any certification required by the Depositary or the Custodian in accordance with the provisions of the Deposit Agreement, (ii) a written order directing the Depositary to deliver to, or upon the written order of, the person or persons stated in that order, the number of American Depositary Shares representing those Deposited Shares, (iii) evidence satisfactory to the Depositary that those Shares have been re-registered in the books of the Company or the Foreign Registrar in the name of the Depositary, a Custodian or a nominee of the Depositary or a Custodian, (iv) evidence satisfactory to the Depositary that any necessary approval has been granted by any governmental body in each applicable jurisdiction and (v) an agreement or assignment, or other instrument satisfactory to the Depositary, that provides for the prompt transfer to the Custodian of any dividend, or right to subscribe for additional Shares or to receive other property, that any person in whose name those Shares are or have been recorded may thereafter receive upon or in respect of those Shares, or, in lieu thereof, such agreement of indemnity or other agreement as shall be satisfactory to the Depositary.

7.     CHARGES OF DEPOSITARY.

The following charges shall be incurred by any party depositing or withdrawing Shares or by any party surrendering American Depositary Shares or to whom American Depositary Shares 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 American Depositary Shares or Deposited Securities or a delivery of American Depositary Shares pursuant to Section 4.3 of the Deposit Agreement), or by Owners, as applicable: (1) taxes and other governmental charges, (2) such registration fees as may from time to time be in effect for the registration of transfers of Shares generally on the Share register of the Company or Foreign Registrar and applicable to transfers of Shares to or from the name of the Depositary or its nominee or the Custodian or its nominee on the making of deposits or withdrawals hereunder, (3) such cable (including SWIFT) and facsimile transmission fees and expenses as are expressly provided in the Deposit Agreement, (4) such expenses as are incurred by the Depositary in the conversion of foreign currency pursuant to Section 4.5 of the Deposit Agreement, (5) a fee of $5.00 or less per 100 American Depositary Shares (or portion thereof) for the delivery of American Depositary Shares pursuant to Section 2.3, 4.3 or 4.4 of the Deposit Agreement and the surrender of American Depositary Shares pursuant to Section 2.5 or 6.2 of the Deposit Agreement, (6) a fee of $.05 or less per American Depositary Share (or portion thereof) for any cash distribution made pursuant to the Deposit Agreement, including, but not limited to Sections 4.1 through 4.4 and 4.8 of the Deposit Agreement, (7) a fee for the distribution of securities pursuant to Section 4.2 of the Deposit Agreement or of rights pursuant to Section 4.4 of that Agreement (where the Depositary will not exercise or sell those rights on behalf of Owners), such fee being in an amount equal to the fee for the execution and delivery of American Depositary Shares referred to above which would have been charged as a result of the deposit of such securities under the Deposit Agreement (for purposes of this item 7 treating all such securities as if they were Shares) but which securities are instead distributed by the Depositary to Owners, (8) in addition to any fee charged under item 6, a fee of $.05 or less per American Depositary Share (or portion thereof) per annum for depositary services, which will be payable as provided in item 9 below, and (9) any other charges payable by the Depositary or the Custodian, any of the Depositary's or Custodian’s agents or the agents of the Depositary's or Custodian’s agents, in connection with the servicing of Shares or other Deposited Securities (which charges shall be assessed against Owners as of the date or dates set by the Depositary in accordance with Section 4.6 of the Deposit Agreement and shall be payable at the sole discretion of the Depositary by billing those Owners for those charges or by deducting those charges from one or more cash dividends or other cash distributions).

 

The Depositary may collect any of its fees by deduction from any cash distribution payable, or by selling a portion of any securities to be distributed, to Owners that are obligated to pay those fees.

The Depositary, subject to Article 8 hereof, may own and deal in any class of securities of the Company and its affiliates and in American Depositary Shares.

From time to time, the Depositary may make payments to the Company to reimburse the Company for costs and expenses generally arising out of establishment and maintenance of the American Depositary Shares program, waive fees and expenses for services provided by the Depositary or share revenue from the fees collected from Owners or Holders. In performing its duties under the Deposit Agreement, the Depositary may use brokers, dealers, foreign currency dealers or other service providers that are owned by or affiliated with the Depositary and that may earn or share fees, spreads or commissions.

8.     [RESERVED]

9.     TITLE TO AMERICAN DEPOSITARY SHARES.

It is a condition of the American Depositary Shares, and every successive Owner and Holder of American Depositary Shares, by accepting or holding the same, consents and agrees that American Depositary Shares evidenced by a Receipt, when the Receipt is properly endorsed or accompanied by proper instruments of transfer, shall be transferable as certificated registered securities under the laws of the State of New York, and that American Depositary Shares not evidenced by Receipts shall be transferable as uncertificated registered securities under the laws of the State of New York. The Depositary, notwithstanding any notice to the contrary, may treat the Owner of American Depositary Shares as the absolute owner thereof for the purpose of determining the person entitled to distribution of dividends or other distributions or to any notice provided for in the Deposit Agreement and for all other purposes, and neither the Depositary nor the Company shall have any obligation or be subject to any liability under the Deposit Agreement to any Holder of American Depositary Shares, but only to the Owner.

 

10.

VALIDITY OF RECEIPT.

This Receipt shall not be entitled to any benefits under the Deposit Agreement or be valid or obligatory for any purpose, unless this Receipt shall have been (i) executed by the Depositary by the manual signature of a duly authorized officer of the Depositary or (ii) executed by the facsimile signature of a duly authorized officer of the Depositary and countersigned by the manual signature of a duly authorized signatory of the Depositary or the Registrar or a co-registrar.

11.

REPORTS; INSPECTION OF TRANSFER BOOKS.

The Company is subject to the periodic reporting requirements of the Securities Exchange Act of 1934 and, accordingly, files certain reports with the Securities and Exchange Commission. Those reports will be available for inspection and copying through the Commission's EDGAR system or at public reference facilities maintained by the Commission in Washington, D.C.

The Depositary will make available for inspection by Owners at its Office any reports, notices and other communications, including any proxy soliciting material, received from the Company which are both (a) received by the Depositary as the holder of the Deposited Securities and (b) made generally available to the holders of those Deposited Securities by the Company. The Company shall furnish reports and communications, including any proxy soliciting material to which Section 4.9 of the Deposit Agreement applies, to the Depositary in English, to the extent such materials are required to be translated into English pursuant to any regulations of the Commission.

The Depositary will keep books for the registration of American Depositary Shares and transfers of American Depositary Shares, which shall be open for inspection by the Owners at the Depositary’s Office during regular business hours, provided that such inspection shall not be for the purpose of communicating with Owners in the interest of a business or object other than the business of the Company or a matter related to the Deposit Agreement or the American Depositary Shares.

12.

DIVIDENDS AND DISTRIBUTIONS.

Whenever the Depositary receives any cash dividend or other cash distribution on Deposited Securities, the Depositary will, if at the time of receipt thereof any amounts received in a foreign currency can in the judgment of the Depositary be converted on a reasonable basis into Dollars transferable to the United States, and subject to the Deposit Agreement, convert that dividend or other cash distribution into Dollars and distribute the amount thus received (net of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit Agreement) to the Owners entitled thereto; provided, however, that if the Custodian or the Depositary is required to withhold and does withhold from that cash dividend or other cash distribution an amount on account of taxes or other governmental charges, the amount distributed to the Owners of the American Depositary Shares representing those Deposited Securities shall be reduced accordingly. If a cash distribution would represent a return of all or substantially all the value of the Deposited Securities underlying American Depositary Shares, the Depositary may require surrender of those American Depositary Shares and may require payment of or deduct the fee for surrender of American Depositary Shares (whether or not it is also requiring surrender of American Depositary Shares) as a condition of making that cash distribution. A distribution of that kind shall be a Termination Option Event.

 

Subject to the provisions of Section 4.11 and 5.9 of the Deposit Agreement, whenever the Depositary receives any distribution other than a distribution described in Section 4.1, 4.3 or 4.4 of the Deposit Agreement on Deposited Securities (but not in exchange for or in conversion or in lieu of Deposited Securities), the Depositary will cause the securities or property received by it to be distributed to the Owners entitled thereto, after deduction or upon payment of any fees and expenses of the Depositary and any taxes or other governmental charges, in any manner that the Depositary deems equitable and practicable for accomplishing that distribution (which may be a distribution of depositary shares representing the securities received); provided, however, that if in the opinion of the Depositary such distribution cannot be made proportionately among the Owners of Receipts entitled thereto, or if for any other reason the Depositary deems such distribution not to be lawful and feasible, the Depositary may adopt such other method as it may deem equitable and practicable for the purpose of effecting such distribution, including, but not limited to, the public or private sale of the securities or property thus received, or any part thereof, and distribution of the net proceeds of any such sale (net of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit Agreement) to the Owners entitled thereto all in the manner and subject to the conditions set forth in Section 4.1 of the Deposit Agreement. The Depositary may withhold any distribution of securities under Section 4.2 of the Deposit Agreement if it has not received satisfactory assurances from the Company that the distribution does not require registration under the Securities Act of 1933. The Depositary may sell, by public or private sale, an amount of securities or other property it would otherwise distribute under this Article that is sufficient to pay its fees and expenses in respect of that distribution. If a distribution under Section 4.2 of the Deposit Agreement would represent a return of all of substantially all the value of the Deposited Securities underlying American Depositary Shares, the Depositary may require surrender of those American Depositary Shares and may require payment of or deduct the fee for surrender of American Depositary Shares (whether or not it is also requiring surrender of American Depositary Shares) as a condition of making that distribution. A distribution of that kind shall be a Termination Option Event.

Whenever the Depositary receives any distribution consisting of a dividend in, or free distribution of, Shares, the Depositary may, and shall if the Company so requests in writing, deliver to the Owners entitled thereto, an aggregate number of American Depositary Shares representing the amount of Shares received as that dividend or free distribution, subject to the terms and conditions of the Deposit Agreement with respect to the deposit of Shares and issuance of American Depositary Shares, including the withholding of any tax or other governmental charge as provided in Section 4.11 of the Deposit Agreement and the payment of the fees and expenses of the Depositary as provided in Article 7 hereof and Section 5.9 of the Deposit Agreement (and the Depositary may sell, by public or private sale, an amount of Shares received (or American Depositary Shares representing those Shares) sufficient to pay its fees and expenses in respect of that distribution). In lieu of delivering fractional American Depositary Shares, the Depositary may sell the amount of Shares represented by the aggregate of those fractions (or American Depositary Shares representing those Shares) and distribute the net proceeds, all in the manner and subject to the conditions described in Section 4.1of the Deposit Agreement. If and to the extent that additional American Depositary Shares are not delivered and Shares or American Depositary Shares are not sold, each American Depositary Share shall thenceforth also represent the additional Shares distributed on the Deposited Securities represented thereby.

 

If the Company declares a distribution in which holders of Deposited Securities have a right to elect whether to receive cash, Shares or other securities or a combination of those things, or a right to elect to have a distribution sold on their behalf, the Depositary may, after consultation with the Company, make that right of election available for exercise by Owners any manner the Depositary considers to be lawful and practical. As a condition of making a distribution election right available to Owners, the Depositary may require satisfactory assurances from the Company that doing so does not require registration of any securities under the Securities Act of 1933.

If the Depositary determines that any distribution received or to be made by the Depositary (including Shares and rights to subscribe therefor) is subject to any tax or other governmental charge that the Depositary is obligated to withhold, the Depositary may sell, by public or private sale, all or a portion of the distributed property (including Shares and rights to subscribe therefor) in the amounts and manner the Depositary deems necessary and practicable to pay any those taxes or charges, and the Depositary shall distribute the net proceeds of that sale, after deduction of those taxes or charges, to the Owners entitled thereto in proportion to the number of American Depositary Shares held by them respectively.

Each Owner and Holder agrees to indemnify the Company, the Depositary, the Custodian and their respective directors, employees, agents and affiliates for, and hold each of them harmless against, any claim by any governmental authority with respect to taxes, additions to tax, penalties or interest arising out of any refund of taxes, reduced withholding at source or other tax benefit received by it. Services for Owners and Holders that may permit them to obtain reduced rates of tax withholding at source or reclaim excess tax withheld, and the fees and costs associated with using services of that kind, are not provided under, and are outside the scope of, the Deposit Agreement.

13.

RIGHTS.

(a) If rights are granted to the Depositary in respect of deposited Shares to purchase additional Shares or other securities, the Company and the Depositary shall endeavor to consult as to the actions, if any, the Depositary should take in connection with that grant of rights. The Depositary may, to the extent deemed by it to be lawful and practical (i) if requested in writing by the Company, grant to all or certain Owners rights to instruct the Depositary to purchase the securities to which the rights relate and deliver those securities or American Depositary Shares representing those securities to Owners, (ii) if requested in writing by the Company, deliver the rights to or to the order of certain Owners, or (iii) sell the rights to the extent practicable and distribute the net proceeds of that sale to Owners entitled to those proceeds. To the extent rights are not exercised, delivered or disposed of under (i), (ii) or (iii) above, the Depositary shall permit the rights to lapse unexercised.

(b) If the Depositary will act under (a)(i) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon instruction from an applicable Owner in the form the Depositary specified and upon payment by that Owner to the Depositary of an amount equal to the purchase price of the securities to be received upon the exercise of the rights, the Depositary shall, on behalf of that Owner, exercise the rights and purchase the securities. The purchased securities shall be delivered to, or as instructed by, the Depositary. The Depositary shall (i) deposit the purchased Shares under the Deposit Agreement and deliver American Depositary Shares representing those Shares to that Owner or (ii) deliver or cause the purchased Shares or other securities to be delivered to or to the order of that Owner. The Depositary will not act under (a)(i) above unless the offer and sale of the securities to which the rights relate are registered under the Securities Act of 1933 or the Depositary has received an opinion of United States counsel that is satisfactory to it to the effect that those securities may be sold and delivered to the applicable Owners without registration under the Securities Act of 1933.

 

(c) If the Depositary will act under (a)(ii) above, the Company and the Depositary will enter into a separate agreement setting forth the conditions and procedures applicable to the particular offering. Upon (i) the request of an applicable Owner to deliver the rights allocable to the American Depositary Shares of that Owner to an account specified by that Owner to which the rights can be delivered and (ii) receipt of such documents as the Company and the Depositary agreed to require to comply with applicable law, the Depositary will deliver those rights as requested by that Owner.

(d) If the Depositary will act under (a)(iii) above, the Depositary will use reasonable efforts to sell the rights in proportion to the number of American Depositary Shares held by the applicable Owners and pay the net proceeds to the Owners otherwise entitled to the rights that were sold, upon an averaged or other practical basis without regard to any distinctions among such Owners because of exchange restrictions or the date of delivery of any American Depositary Shares or otherwise.

(e) Payment or deduction of the fees of the Depositary as provided in Section 5.9 of the Deposit Agreement and payment or deduction of the expenses of the Depositary and any applicable taxes or other governmental charges shall be conditions of any delivery of securities or payment of cash proceeds under Section 4.4 of that Agreement.

(f) The Depositary shall not be responsible for any failure to determine that it may be lawful or feasible to make rights available to or exercise rights on behalf of Owners in general or any Owner in particular , or to sell rights.

14.

CONVERSION OF FOREIGN CURRENCY.

Whenever the Depositary or the Custodian receives foreign currency, by way of dividends or other distributions or the net proceeds from the sale of securities, property or rights, and if at the time of the receipt thereof the foreign currency so received can in the judgment of the Depositary be converted on a reasonable basis into Dollars and the resulting Dollars transferred to the United States, the Depositary shall convert or cause to be converted by sale or in any other manner that it may determine that foreign currency into Dollars, and those Dollars shall be distributed to the Owners entitled thereto. A cash distribution may be made upon an averaged or other practicable basis without regard to any distinctions among Owners based on exchange restrictions, the date of delivery of any American Depositary Shares or otherwise and shall be net of any expenses of conversion into Dollars incurred by the Depositary as provided in Section 5.9 of the Deposit Agreement.

 

If a conversion of foreign currency or the repatriation or distribution of Dollars can be effected only with the approval or license of any government or agency thereof, the Depositary may, but will not be required to, file an application for that approval or license.

If the Depositary determines that in its judgment any foreign currency received by the Depositary or the Custodian is not convertible on a reasonable basis into Dollars transferable to the United States, or if any approval or license of any government or agency thereof that is required for such conversion is not filed or sought by the Depositary or is not obtained within a reasonable period as determined by the Depositary, the Depositary may distribute the foreign currency received by the Depositary to, or in its discretion may hold such foreign currency uninvested and without liability for interest thereon for the respective accounts of, the Owners entitled to receive the same.

If any conversion of foreign currency, in whole or in part, cannot be effected for distribution to some of the Owners entitled thereto, the Depositary may in its discretion make that conversion and distribution in Dollars to the extent practicable and permissible to the Owners entitled thereto and may distribute the balance of the foreign currency received by the Depositary to, or hold that balance uninvested and without liability for interest thereon for the account of, the Owners entitled thereto.

The Depositary may convert currency itself or through any of its affiliates and, in those cases, acts as principal for its own account and not as agent, advisor, broker or fiduciary on behalf of any other person and earns revenue, including, without limitation, transaction spreads, that it will retain for its own account.  The revenue is based on, among other things, the difference between the exchange rate assigned to the currency conversion made under the Deposit Agreement and the rate that the Depositary or its affiliate receives when buying or selling foreign currency for its own account.  The Depositary makes no representation that the exchange rate used or obtained in any currency conversion under the Deposit Agreement will be the most favorable rate that could be obtained at the time or that the method by which that rate will be determined will be the most favorable to Owners, subject to the Depositary’s obligations under Section 5.3 of that Agreement. The methodology used to determine exchange rates used in currency conversions is available upon request.

15.

RECORD DATES.

Whenever a cash dividend, cash distribution or any other distribution is made on Deposited Securities or rights to purchase Shares or other securities are issued with respect to Deposited Securities (which rights will be delivered to or exercised or sold on behalf of Owners in accordance with Section 4.4 of the Deposit Agreement) or the Depositary receives notice that a distribution or issuance of that kind will be made, or whenever the Depositary receives notice that a meeting of holders of Shares will be held in respect of which the Company has requested the Depositary to send a notice under Section 4.7 of the Deposit Agreement, or whenever the Depositary will assess a fee or charge against the Owners, or whenever the Depositary causes a change in the number of Shares that are represented by each American Depositary Share, or whenever the Depositary otherwise finds it necessary or convenient, the Depositary shall fix a record date, which shall be the same as, or as near as practicable to, any corresponding record date set by the Company with respect to Shares, (a) for the determination of the Owners (i) who shall be entitled to receive the benefit of that dividend or other distribution or those rights, (ii) who shall be entitled to give instructions for the exercise of voting rights at that meeting, (iii) who shall be responsible for that fee or charge or (iv) for any other purpose for which the record date was set, or (b) on or after which each American Depositary Share will represent the changed number of Shares. Subject to the provisions of Sections 4.1 through 4.5 of the Deposit Agreement and to the other terms and conditions of the Deposit Agreement, the Owners on a record date fixed by the Depositary shall be entitled to receive the amount distributable by the Depositary with respect to that dividend or other distribution or those rights or the net proceeds of sale thereof in proportion to the number of American Depositary Shares held by them respectively, to give voting instructions or to act in respect of the other matter for which that record date was fixed, or be responsible for that fee or charge, as the case may be.

 

16.

VOTING OF DEPOSITED SHARES.

(a) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be in the sole discretion of the Depositary, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Cayman Islands law and of the articles of association or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).

(b) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.

(c) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (a) above in time to enable Owners to give instructions to the Depositary prior to the Instruction Cutoff Date.

(d) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (a) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 30 days prior to the meeting date.

 

17.              TENDER AND EXCHANGE OFFERS; REDEMPTION, REPLACEMENT OR CANCELLATION OF DEPOSITED SECURITIES.

(a) The Depositary shall not tender any Deposited Securities in response to any voluntary cash tender offer, exchange offer or similar offer made to holders of Deposited Securities (a “Voluntary Offer”), except when instructed in writing to do so by an Owner surrendering American Depositary Shares and subject to any conditions or procedures the Depositary may require.

(b) If the Depositary receives a written notice that Deposited Securities have been redeemed for cash or otherwise purchased for cash in a transaction that is mandatory and binding on the Depositary as a holder of those Deposited Securities (a “Redemption”), the Depositary, at the expense of the Company, shall (i) if required, surrender Deposited Securities that have been redeemed to the issuer of those securities or its agent on the redemption date, (ii) Disseminate a notice to Owners (A) notifying them of that Redemption, (B) calling for surrender of a corresponding number of American Depositary Shares and (C) notifying them that the called American Depositary Shares have been converted into a right only to receive the money received by the Depositary upon that Redemption and those net proceeds shall be the Deposited Securities to which Owners of those converted American Depositary Shares shall be entitled upon surrenders of those American Depositary Shares in accordance with Section 2.5 or 6.2 of the Deposit Agreement and (iii) distribute the money received upon that Redemption to the Owners entitled to it upon surrender by them of called American Depositary Shares in accordance with Section 2.5 of that Agreement (and, for the avoidance of doubt, Owners shall not be entitled to receive that money under Section 4.1 of that Agreement). If the Redemption affects less than all the Deposited Securities, the Depositary shall call for surrender a corresponding portion of the outstanding American Depositary Shares and only those American Depositary Shares will automatically be converted into a right to receive the net proceeds of the Redemption. The Depositary shall allocate the American Depositary Shares converted under the preceding sentence among the Owners pro-rata to their respective holdings of American Depositary Shares immediately prior to the Redemption, except that the allocations may be adjusted so that no fraction of a converted American Depositary Share is allocated to any Owner. A Redemption of all or substantially all of the Deposited Securities shall be a Termination Option Event.

(c) If the Depositary is notified of or there occurs any change in nominal value or any subdivision, combination or any other reclassification of the Deposited Securities or any recapitalization, reorganization, sale of assets substantially as an entirety, merger or consolidation affecting the issuer of the Deposited Securities or to which it is a party that is mandatory and binding on the Depositary as a holder of Deposited Securities and, as a result, securities or other property have been or will be delivered in exchange, conversion, replacement or in lieu of, Deposited Securities (a “Replacement”), the Depositary shall, if required, surrender the old Deposited Securities affected by that Replacement of Shares and hold, as new Deposited Securities under the Deposit Agreement, the new securities or other property delivered to it in that Replacement. However, the Depositary may elect to sell those new Deposited Securities if in the opinion of the Depositary it is not lawful or not practical for it to hold those new Deposited Securities under the Deposit Agreement because those new Deposited Securities may not be distributed to Owners without registration under the Securities Act of 1933 or for any other reason, at public or private sale, at such places and on such terms as it deems proper and proceed as if those new Deposited Securities had been Redeemed under paragraph (b) above. A Replacement shall be a Termination Option Event.

 

(d) In the case of a Replacement where the new Deposited Securities will continue to be held under the Deposit Agreement, the Depositary may call for the surrender of outstanding Receipts to be exchanged for new Receipts specifically describing the new Deposited Securities and the number of those new Deposited Securities represented by each American Depositary Share. If the number of Shares represented by each American Depositary Share decreases as a result of a Replacement, the Depositary may call for surrender of the American Depositary Shares to be exchanged on a mandatory basis for a lesser number of American Depositary Shares and may sell American Depositary Shares to the extent necessary to avoid distributing fractions of American Depositary Shares in that exchange and distribute the net proceeds of that sale to the Owners entitled to them.

(e) If there are no Deposited Securities with respect to American Depositary Shares, including if the Deposited Securities are cancelled, or the Deposited Securities with respect to American Depositary Shares become apparently worthless, the Depositary may call for surrender of those American Depositary Shares or may cancel those American Depositary Shares, upon notice to Owners, and a Termination Option Event occurs.

18.

LIABILITY OF THE COMPANY AND DEPOSITARY.

Neither the Depositary nor the Company nor any of their respective directors, employees, agents or affiliates shall incur any liability to any Owner or Holder:

(i) if by reason of (A) any provision of any present or future law or regulation or other act of the government of the United States, any State of the United States or any other state or jurisdiction, or of any governmental or regulatory authority or stock exchange; (B) (in the case of the Depositary only) any provision, present or future, of the articles of association or similar document of the Company, or by reason of any provision of any securities issued or distributed by the Company, or any offering or distribution thereof; or (C) any event or circumstance, whether natural or caused by a person or persons, that is beyond the ability of the Depositary or the Company, as the case may be, to prevent or counteract by reasonable care or effort (including, but not limited to earthquakes, floods, severe storms, fires, explosions, war, terrorism, civil unrest, labor disputes or criminal acts; interruptions or malfunctions of utility services, Internet or other communications lines or systems; unauthorized access to or attacks on computer systems or websites; or other failures or malfunctions of computer hardware or software or other systems or equipment), the Depositary or the Company is, directly or indirectly, prevented from, forbidden to or delayed in, or could be subject to any civil or criminal penalty on account of doing or performing and therefore does not do or perform, any act or thing that, by the terms of the Deposit Agreement or the Deposited Securities, it is provided shall be done or performed;

 

(ii) for any exercise of, or failure to exercise, any discretion provided for in the Deposit Agreement (including any determination by the Depositary to take, or not take, any action that the Deposit Agreement provides the Depositary may take);

(iii) for the inability of any Owner or Holder to benefit from any distribution, offering, right or other benefit that is made available to holders of Deposited Securities but is not, under the terms of the Deposit Agreement, made available to Owners or Holders; or

(iv) for any special, consequential or punitive damages for any breach of the terms of the Deposit Agreement.

Where, by the terms of a distribution to which Section 4.1, 4.2 or 4.3 of the Deposit Agreement applies, or an offering to which Section 4.4 of that Agreement applies, or for any other reason, that distribution or offering may not be made available to Owners, and the Depositary may not dispose of that distribution or offering on behalf of Owners and make the net proceeds available to Owners, then the Depositary shall not make that distribution or offering available to Owners, and shall allow any rights, if applicable, to lapse.

Neither the Company nor the Depositary assumes any obligation or shall be subject to any liability under the Deposit Agreement to Owners or Holders, except that they agree to perform their obligations specifically set forth in the Deposit Agreement without negligence or bad faith. The Depositary shall not be a fiduciary or have any fiduciary duty to Owners or Holders. The Depositary shall not be subject to any liability with respect to the validity or worth of the Deposited Securities. Neither the Depositary nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit, or other proceeding in respect of any Deposited Securities or in respect of the American Depositary Shares, on behalf of any Owner or Holder or other person. Neither the Depositary nor the Company shall be liable for any action or non-action by it in reliance upon the advice of or information from legal counsel, accountants, any person presenting Shares for deposit, any Owner or Holder, or any other person believed by it in good faith to be competent to give such advice or information. Each of the Depositary and the Company may rely, and shall be protected in relying 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. The Depositary shall not be liable for any acts or omissions made by a successor depositary whether in connection with a previous act or omission of the Depositary or in connection with a matter arising wholly after the removal or resignation of the Depositary, provided that in connection with the issue out of which such potential liability arises, the Depositary performed its obligations without negligence or bad faith while it acted as Depositary. The Depositary shall not be liable for the acts or omissions of any securities depository, clearing agency or settlement system in connection with or arising out of book-entry settlement of American Depositary Shares or Deposited Securities or otherwise. In the absence of bad faith on its part, the Depositary shall not be responsible for any failure to carry out any instructions to vote any of the Deposited Securities or for the manner in which any such vote is cast or the effect of any such vote. The Depositary shall have no duty to make any determination or provide any information as to the tax status of the Company. Neither the Company nor the Depositary shall have any liability for any tax consequences that may be incurred by Owners or Holders as a result of owning or holding American Depositary Shares. None of the Company, the Depositary or the Custodian shall be liable for the inability or failure of an Owner or Holder to obtain the benefit of a foreign tax credit, reduced rate of withholding or refund of amounts withheld in respect of tax or any other tax benefit. No disclaimer of liability under the Securities Act of 1933 is intended by any provision of the Deposit Agreement.

 

19.

RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR CUSTODIAN.

The Depositary may at any time resign as Depositary under the Deposit Agreement by written notice of its election so to do delivered to the Company, to become effective upon the appointment of a successor depositary and its acceptance of such appointment as provided in the Deposit Agreement. The Depositary may at any time be removed by the Company by 120 days’ prior written notice of that removal, to become effective upon the later of (i) the 120th day after delivery of the notice to the Depositary and (ii) the appointment of a successor depositary and its acceptance of its appointment as provided in the Deposit Agreement. The Depositary in its discretion may at any time appoint a substitute or additional custodian or custodians.

20.

AMENDMENT.

The form of the Receipts and any provisions of the Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary without the consent of Owners or Holders in any respect which they may deem necessary or desirable. Any amendment that would impose or increase any fees or charges (other than taxes and other governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or that would otherwise prejudice any substantial existing right of Owners, shall, however, not become effective as to outstanding American Depositary Shares until the expiration of 30 days after notice of that amendment has been Disseminated to the Owners of outstanding American Depositary Shares. Every Owner and Holder, at the time any amendment so becomes effective, shall be deemed, by continuing to hold American Depositary Shares or any interest therein, to consent and agree to that amendment and to be bound by the Deposit Agreement as amended thereby. Upon the effectiveness of an amendment to the form of Receipt, including a change in the number of Shares represented by each American Depositary Share, the Depositary may call for surrender of Receipts to be replaced with new Receipts in the amended form or call for surrender of American Depositary Shares to effect that change of ratio. In no event shall any amendment impair the right of the Owner to surrender American Depositary Shares and receive delivery of the Deposited Securities represented thereby, except in order to comply with mandatory provisions of applicable law.

21.

TERMINATION OF DEPOSIT AGREEMENT.

(a) The Company may initiate termination of the Deposit Agreement by notice to the Depositary. The Depositary may initiate termination of the Deposit Agreement if (i) at any time 60 days shall have expired after the Depositary delivered to the Company a written resignation notice and a successor depositary has not been appointed and accepted its appointment as provided in Section 5.4 of that Agreement, (ii) an Insolvency Event or Delisting Event occurs with respect to the Company or (iii) a Termination Option Event has occurred or will occur. If termination of the Deposit Agreement is initiated, the Depositary shall Disseminate a notice of termination to the Owners of all American Depositary Shares then outstanding setting a date for termination (the “Termination Date”), which shall be at least 90 days after the date of that notice, and the Deposit Agreement shall terminate on that Termination Date.

 

(b) After the Termination Date, the Company shall be discharged from all obligations under the Deposit Agreement except for its obligations to the Depositary under Sections 5.8 and 5.9 of that Agreement.

(c) At any time after the Termination Date, the Depositary may sell the Deposited Securities then held under the Deposit Agreement and may thereafter hold uninvested the net proceeds of any such sale, together with any other cash then held by it hereunder, unsegregated and without liability for interest, for the pro rata benefit of the Owners of American Depositary Shares that remain outstanding, and those Owners will be general creditors of the Depositary with respect to those net proceeds and that other cash. After making that sale, the Depositary shall be discharged from all obligations under the Deposit Agreement, except (i) to account for the net proceeds and other cash (after deducting, in each case, the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of such American Depositary Shares in accordance with the terms and conditions of the Deposit Agreement and any applicable taxes or governmental charges) and (ii) for its obligations under Section 5.8 of that Agreement and (iii) to act as provided in paragraph (d) below.

(d) After the Termination Date, the Depositary shall continue to receive dividends and other distributions pertaining to Deposited Securities (that have not been sold), may sell rights and other property as provided in the Deposit Agreement and shall deliver Deposited Securities (or sale proceeds) upon surrender of American Depositary Shares (after payment or upon deduction, in each case, of the fee of the Depositary for the surrender of American Depositary Shares, any expenses for the account of the Owner of those American Depositary Shares in accordance with the terms and conditions of the Deposit Agreement and any applicable taxes or governmental charges). After the Termination Date, the Depositary shall not accept deposits of Shares or deliver American Depositary Shares. After the Termination Date, (i) the Depositary may refuse to accept surrenders of American Depositary Shares for the purpose of withdrawal of Deposited Securities (that have not been sold) or reverse previously accepted surrenders of that kind that have not settled if in its judgment the requested withdrawal would interfere with its efforts to sell the Deposited Securities, (ii) the Depositary will not be required to deliver cash proceeds of the sale of Deposited Securities until all Deposited Securities have been sold and (iii) the Depositary may discontinue the registration of transfers of American Depositary Shares and suspend the distribution of dividends and other distributions on Deposited Securities to the Owners and need not give any further notices or perform any further acts under the Deposit Agreement except as provided in Section 6.2 of that Agreement.

22.

DTC DIRECT REGISTRATION SYSTEM AND PROFILE MODIFICATION SYSTEM.

(a) Notwithstanding the provisions of Section 2.4 of the Deposit Agreement, the parties acknowledge that DTC’s Direct Registration System (“DRS”) and Profile Modification System (“Profile”) apply to the American Depositary Shares upon acceptance thereof to DRS by DTC. DRS is the system administered by DTC that facilitates interchange between registered holding of uncertificated securities and holding of security entitlements in those securities through DTC and a DTC participant. Profile is a required feature of DRS that allows a DTC participant, claiming to act on behalf of an Owner of American Depositary Shares, to direct the Depositary to register a transfer of those American Depositary Shares to DTC or its nominee and to deliver those American Depositary Shares to the DTC account of that DTC participant without receipt by the Depositary of prior authorization from the Owner to register that transfer.

 

(b) In connection with DRS/Profile, the parties acknowledge that the Depositary will not determine whether the DTC participant that is claiming to be acting on behalf of an Owner in requesting registration of transfer and delivery described in paragraph (a) above has the actual authority to act on behalf of that Owner (notwithstanding any requirements under the Uniform Commercial Code). For the avoidance of doubt, the provisions of Sections 5.3 and 5.8 of the Deposit Agreement apply to the matters arising from the use of the DRS/Profile. The parties agree that the Depositary’s reliance on and compliance with instructions received by the Depositary through the DRS/Profile system and otherwise in accordance with the Deposit Agreement, shall not constitute negligence or bad faith on the part of the Depositary.

23.

APPOINTMENT OF AGENT FOR SERVICE OF PROCESS; SUBMISSION TO JURISDICTION; JURY TRIAL WAIVER; WAIVER OF IMMUNITIES.

The Company has (i) appointed Cogency Global Inc., 10 E. 40^th Street, 10^th Floor, New York, New York 10016, located in the State of New York, as the Company's authorized agent upon which process may be served in any suit or proceeding arising out of or relating to the Shares or Deposited Securities, the American Depositary Shares, the Receipts or this Agreement, (ii) consented and submitted to the jurisdiction of any state or federal court in the State of New York in which any such suit or proceeding may be instituted, and (iii) agreed that service of process upon said authorized agent shall be deemed in every respect effective service of process upon the Company in any such suit or proceeding.

EACH PARTY TO THE DEPOSIT AGREEMENT (INCLUDING, FOR AVOIDANCE OF DOUBT, EACH OWNER AND HOLDER) THEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION OR PROCEEDING AGAINST THE COMPANY AND/OR THE DEPOSITARY DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SHARES OR OTHER DEPOSITED SECURITIES, THE AMERICAN DEPOSITARY SHARES OR THE RECEIPTS, THE DEPOSIT AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREIN OR THEREIN, OR THE BREACH HEREOF OR THEREOF, INCLUDING WITHOUT LIMITATION ANY QUESTION REGARDING EXISTENCE, VALIDITY OR TERMINATION (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

To the extent that the Company or any of its properties, assets or revenues may have or hereafter become entitled to, or have attributed to it, any right of immunity, on the grounds of sovereignty or otherwise, from any legal action, suit or proceeding, from the giving of any relief in any respect thereof, from setoff or counterclaim, from the jurisdiction of any court, from service of process, from attachment upon or prior to judgment, from attachment in aid of execution or judgment, or other legal process or proceeding for the giving of any relief or for the enforcement of any judgment, in any jurisdiction in which proceedings may at any time be commenced, with respect to its obligations, liabilities or any other matter under or arising out of or in connection with the Shares or Deposited Securities, the American Depositary Shares, the Receipts or the Deposit Agreement, the Company, to the fullest extent permitted by law, hereby irrevocably and unconditionally waives, and agrees not to plead or claim, any such immunity and consents to such relief and enforcement.

 

24.

DISCLOSURE OF INTERESTS.

When required in order to comply with applicable laws and regulations or the articles of association or similar document of the Company, the Company may from time to time request each Owner and Holder to provide to the Depositary information relating to: (a) the capacity in which it holds American Depositary Shares, (b) the identity of any Holders or other persons or entities then or previously interested in those American Depositary Shares and the nature of those interests and (c) any other matter where disclosure of such matter is required for that compliance.   Each Owner and Holder agrees to provide all information known to it in response to a request made pursuant to Section 3.4 of the Deposit Agreement.  Each Holder consents to the disclosure by the Depositary and the Owner or other Holder through which it holds American Depositary Shares, directly or indirectly, of all information responsive to a request made pursuant to that Section relating to that Holder that is known to that Owner or other Holder. 

 

 

Exhibit 10.4

 

Specific terms in this exhibit have been redacted because confidential treatment for those terms has been requested. The redacted material has been separately filed with the Securities and Exchange Commission, and the terms have been marked at the appropriate place with three asterisks [***].

 

AMENDMENT AND RESTATEMENT AGREEMENT

 

This amendment and restatement agreement (“Amendment Agreement”), effective as of 31 December 2017, is made by and between Opera Software AS, a company incorporated under the laws of Norway whose registered office is at Gjerdrums vei 19, 0484, Oslo, Norway (“Opera”), and Google Ireland Limited, a company incorporated under the laws of Ireland whose principal place of business is at Gordon House, Barrow Street, Dublin 4 (“Google”).

 

INTRODUCTION

 

(A)       Google and Opera are parties to a Google Distribution Agreement, with an effective date of 1 August 2012 (as amended and novated to date, the “Agreement”).

 

(B)       The parties now wish to amend and restate the Agreement in the manner set out in this Amendment Agreement.

 

AGREED TERMS

 

1.       Definitions and interpretation

 

1.1       Capitalised terms used but not defined in this Amendment Agreement shall have the same meaning as in the Agreement.

 

1.2       Unless the context otherwise requires, references in the Agreement to "this Agreement" shall be to the Agreement as amended and restated by this Amendment Agreement.

 

2.       Amendment and restatement

 

With effect on and from the 1 January 2018 (the “2018 Renewal Date”), the Agreement shall be amended and restated in the form set out in the Appendix to this Amendment Agreement such that, on and from that date, the rights and obligations of the parties shall be governed by and construed in accordance with the provisions of the Appendix to this Amendment Agreement.

 

3.       Continuation

 

The Agreement shall remain in full force and effect unchanged except as modified by this Amendment Agreement.

 

4.       Governing Law and Jurisdiction

 

This Amendment Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning this Amendment Agreement.

 

 

Signed by the parties on the dates stated below

 

OPERA	GOOGLE
By: /s/ Joakim Kasbohm	By: /s/ Fionnuala Meehan
Name: Joakim Kasbohm	Name: Fionnuala Meehan
Title: VP Finance	Title: Board Director
Date: December 21, 2017	Date: December 22, 2017

 

 

APPENDIX

 

GOOGLE DISTRIBUTION AGREEMENT

 

This Distribution Agreement including all schedules and exhibits (collectively referred to as the “Agreement”), effective as of 1 August 2012 (the “Effective Date”), is made by and between Opera Software AS, a company incorporated under the laws of Norway whose registered office is at Gjerdrums vei 19, 0484, Oslo, Norway (“Opera”), and Google Ireland Limited, a company incorporated under the laws of Ireland whose principal place of business is at Gordon House, Barrow Street, Dublin 4 (“Google”).

 

1.

Definitions

 

1.1

“2015 Renewal Date” means 1 May 2015.

 

1.1A       “2018 Renewal Date” means 1 January 2018.

 

1.1

Not used.

 

1.2

“Ad” means an individual advertisement provided by Google in response to a query entered into a Search Access Point.

 

1.3

“Ad Deduction” means [***].

 

1.4

“Ad Revenues” means for any period during the Term, revenues that are recognised by Google from clicks on Ads on Search Results Pages in that period.

 

1.5

“Amendment Effective Date” means 1 June 2013.

 

1.6

Not used.

 

1.7

Not used.

 

1.8

Not used.

 

1.9

Not used.

 

1.10

“Brand Features” means trade names, trademarks, logos and other distinctive brand features of the relevant entity.

 

1.11

“Client ID” means a unique alpha numeric code provided by Google to Opera to be used by Opera to identify Payable Desktop Queries, Payable Smartphone Queries and/or Payable Feature Phone Queries made under Schedule One. Client IDs may be modified by Google from time to time in its sole discretion upon not less than fourteen (14) days’ written notice to Opera.

 

1.12

Not used.

 

1.13

“Confidential Information” means information disclosed by (or on behalf of) one party to the other party under or in connection with this Agreement that is marked as confidential or, from its nature, content or the circumstances in which it is disclosed, might reasonably be supposed to be confidential ([***]). It does not include information that the recipient already knew, that becomes public through no fault of the recipient, that was independently developed by the recipient or that was lawfully given to the recipient by a third party.

 

 

1.14

“Contract Year” means one year commencing on the Effective Date and then on each anniversary of that date.

 

1.15

“Default Search Provider” means that the Google Search Service will be pre-set and automatically used as the internet search service when an End User conducts a search from the applicable Search Access Point unless the End User actively selects another internet search service.

 

1.16

“Desktop Search Bookmark Territories” means [***].

 

1.17

“Destination Page” means any web page which may be accessed by clicking on any portion of an Ad or Search Result served by Google under this Agreement.

 

1.18

“Device” means a Feature Phone or a Smartphone.

 

1.19

Not used.

 

1.20

Not used.

 

1.21

Not used.

 

1.22

Not used.

 

1.23

“End User” means an individual human end user of the applicable browser, using the browser by non-automated means.

 

1.24

Not used.

 

1.25

“Excluded Opera Browser” means [***].

 

1.26

“Excluded Opera Desktop Browser” means [***].

 

1.27

“Excluded Opera Mini Browser” means [***].

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

1.28

“Excluded Opera Mobile Browser” means [***].

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

1.29

“Excluded Search Access Points” has the meaning [***].

 

 

1.30

Not used.

 

1.31

“Existing Install Base” means any Opera Desktop Browser, Opera Mini Browser or Opera Mobile Browser which was distributed by Opera or any Third Party Distributor in the Territory before the Effective Date which, had it been distributed during the Term, would be an Included Opera Browser.

 

1.32

“Feature Phone” means any mobile wireless device that is not a Smartphone.

 

1.33

Not used.

 

1.34

Not used.

 

1.35

“g” means the Google Product known as at the Effective Date as ‘Google+’ and all successors, updates and/or replacements of such product from time to time.

 

1.36

Not used.

 

1.37

“Google Account” means the unified sign-in system in the form of an account created by an End User that provides access to a variety of Google Products.

 

1.38

“Google Brand Features” means the Brand Features of Google or any Google Group Company.

 

1.39

“Google Branding Guidelines” means the applicable Google branding guidelines located at http://www.google.com/permissions/guidelines.html and the Google mobile branding guidelines located at http://www.google.com/wssynd/mobile_guidelines.html (or such different URLs as Google may provide to Opera from time to time), together with such additional brand treatment guidelines as Google may make available to Opera from time to time.

 

1.40A “Google Extension” has the meaning given in clause 9.1 of this Agreement.

 

1.40

“Google Opera Browser” means each:

 

(a)

Included Opera Desktop Browser; Included Opera Mini Browser; and Included Opera Mobile Browser, which has Google set as the Default Search Provider for all Search Access Points in accordance with clause 2 of Schedule One.

 

(b)

Not used.

 

1.41

Not used.

 

1.42

“Google Product” means any products, services and/ or technology (including any API) provided or being developed by or on behalf of Google and/ or any Google Group Company from time to time (including but not limited to the Google Search Service).

 

1.43

“Google Search Service” means the algorithmic web search and search-based advertising service made generally available by Google at www.google.com and its international and mobile equivalents.

 

 

1.44

“Google Technical Protocols” means the Google technical protocols and other technical requirements and specifications applicable to the Google Search Service as notified by Google to Opera from time to time.

 

1.45

“Group Company” means in relation to each of the parties: (a) any parent company of that party; and (b) any corporate body of which that party directly or indirectly has control or which is directly or indirectly controlled by the same person or group of persons as that party.

 

1.46

Not used.

 

1.47

“Included Opera Browser” means [***].

 

1.48

“Included Opera Desktop Browser” means [***].

 

1.49

“Included Opera Mini Browser” means [***].

 

1.50

“Included Opera Mobile Browser” means [***].

 

1.51A

“Initial Term” means the period beginning on the Effective Date and ending on 31 December 2020.

 

1.51

“Intellectual Property Rights” means all copyright, moral rights, patent rights, trade marks, design right, rights in or relating to databases, rights in or relating to confidential information, rights in relation to domain names, and any other intellectual property rights (registered or unregistered) throughout the world.

 

1.52

Not used.

 

1.53

“Material Change” means a change to the user interface of a browser which could reasonably be expected to affect usage of the Google Search Services in a Search Access Point, including (but not limited to): any changes to the format, size or placement of any Search Access Point; any change in the usage of Google Brand Features or other attribution or similar wording; or any change to the list of options which is displayed after an End User has typed a query into a Search Access Point.

 

1.54

Not used.

 

1.55

“Mobile Fixed Fee Period” means the period from the Effective Date until the date which is 18 (eighteen) months after the Effective Date.

 

1.56

“Mobile Next Searches” means any of the following End User actions occurring within the same user session (as determined by Google) following any Valid Search Query submitted into any Payable Mobile Search Access Point: (i) the End User selects the “next” link at the bottom of a Search Results Page in order to display a subsequent Search Results Page; (ii) the End User selects a numerically identified results page in order to display a subsequent Search Results Page; or (iii) End User enters and submits a new query into the Google search box appearing on a Search Results Page, in each case provided that a Valid Search Query is generated.

 

 

1.57

“Mobile Operator” means any mobile network operator with whom Opera has a written agreement in place (which is in effect at any time during the Term) pursuant to which Opera customises certain elements of the Opera Mini Browser and/or Opera Mobile Browser. (For the avoidance of doubt, a Mobile Operator may be a Third Party Distributor).

 

1.58

“Navigational Error Page” means a page displayed by Opera as a result of an end user entering a URL into the address field which does not get a server response and triggers a domain name resolution failure, as shown in Exhibit A (part g).

 

1.59

“Net Ad Revenue” means for any period during the Term, Ad Revenues for that period minus the Ad Deduction for that period.

 

1.60

”New Tab Page” means any new tab page of the type shown in Exhibit A (part f).

 

1.61

“Next Searches” means any of the following End User actions occurring within the same user session (as determined by Google) following any Valid Search Query submitted into any Payable Desktop Search Access Point: (i) the End User selects the “next” link at the bottom of a Search Results Page in order to display a subsequent Search Results Page; (ii) the End User selects a numerically identified results page in order to display a subsequent Search Results Page; or (iii) End User enters and submits a new query into the Google search box appearing on a Search Results Page, in each case provided that a Valid Search Query is generated.

 

1.62

Not used.

 

1.63

“Opera Desktop Browser” means any browser released by Opera (alone or in conjunction with one or more third parties) which is Opera branded, Opera co-branded or third party branded and which is a browser for desktop computers (including laptop computers and equivalent machines) or televisions, including but not limited to: (i) the browser known as at the Effective Date as ‘Opera Desktop’ (as such browser may be re-branded, updated or succeeded from time to time); (ii) any version of ‘Opera Desktop’ or any other desktop browser which has been customised as a result or an arrangement or agreement between Opera and a Third Party Distributor; and (iii) the ‘Opera TV’ browser (as such browser may be re-branded, updated or succeeded from time to time), until Opera notifies Google in writing that it wishes to remove the same from the scope of the Agreement.

 

1.64

“Opera Mini Browser” means Opera’s web browser known as at the Effective Date as ‘Opera Mini’ (as such browser may be re-branded, updated or succeeded from time to time), where the full version of Opera’s web browser is on the server side and a thin client in Java, Brew or similar programming language is located in an End User’s Device, including but not limited to any version of ‘Opera Mini’ which has been customised as a result of an arrangement or agreement between Opera and a Mobile Operator.

 

1.65

“Opera Mobile Browser” means any browser released by Opera (alone or in conjunction with one or more third parties) which is Opera branded, Opera co-branded or third party branded and which is a browser for Devices or any other wireless mobile device, excluding any Opera Mini Browser and including but not limited to: (i) the browser known as at the Effective Date as ‘Opera Mobile’ (as such browser may be re-branded, updated or succeeded from time to time); (ii) the browser known as ‘Opera Coast’ (as such browser may be re-branded, updated or succeeded from time to time); and (iii) any version of ‘Opera Mobile’ or ‘Opera Coast’ which has been customised as a result of an arrangement or agreement between Opera and a Mobile Operator.

 

 

1.66

“Payable Desktop Query” means: (a) a Search Query submitted into any Payable Desktop Search Access Point which has been implemented in accordance with this Agreement and which is a Valid Search Query; and (b) Next Searches.

 

1.67

“Payable Desktop Search Access Point” means the Search Access Points listed in Exhibit A on any Included Opera Desktop Browser or any Opera Desktop browser which forms part of the Existing Install Base, other than any Excluded Search Access Point.

 

1.68

“Payable Mobile Query” means a Search Query submitted into any Payable Mobile Search Access Point which has been implemented in accordance with this Agreement and which is a Valid Search Query and Mobile Next Searches.

 

1.69

“Payable Smartphone Query” means a Payable Mobile Query made on a Smartphone.

 

1.70

“Payable Feature Phone Query” means a Payable Mobile Query made on a Feature Phone.

 

1.71

“Payable Mobile Search Access Point” means the Search Access Points listed in Exhibit B (part a through to part d) on: any Included Opera Mobile Browser; or any Included Opera Mini Browser or any Opera Mobile Browser or Opera Mini Browser which forms part of the Existing Install Base.

 

1.72

“Payable Search Access Point” means the Payable Desktop Search Access Points and the Payable Mobile Search Access Points.

 

1.73

“Quarter” means each consecutive 3 (three) month period during the Term, commencing on and from the Effective Date.

 

1.74

“Relevant Fees” has the meaning given in clause 7.4 of this Agreement.

 

1.75

“Result” means Search Results or Ads.

 

1.75A

“Revenue Share Distributor” has the meaning [***].

 

1.76

“Scraping” means the use of any automated means (for example scraping or robots) to access, query or otherwise to generate traffic in order to collect information from or relating to the Google Search Service or any other Google Product or from any website owned or operated by Google.

 

1.77

“Search Access Point” means:

 

(a)

[***]

 

 

(i)

[***]

 

(ii)

[***]

 

(b)

[***]

 

(i)

[***]

 

(ii)

[***]

 

(iii)

[***]

 

(c)

[***]

 

1.78

“Search Result” means any search result provided by Google in response to a query submitted by an End User into a Search Access Point.

 

1.79

“Search Results Page” means the Google hosted web page on Google.com or the country equivalent (e.g. Google.ru) containing Search Results and/or Ads that is made available in response to a Search Query.

 

1.80

“Search Query” means a text query submitted by an End User into a Search Access Point for the purpose of receiving Search Results.

 

1.81

Not used.

 

1.82

“Smartphone” means any mobile wireless device running the Android or iOS operating system, including tablets.

 

1.83

Not used.

 

1.84

“Term” means the Initial Term and any Google Extension.

 

1.85

“Territory” means [***].

 

1.86

“Third Party Distributor” means any individual or entity that directly or indirectly distributes and/or promotes any Opera Desktop Browser, Opera Mini Browser or Opera Mobile Browser.

 

1.87

“Updates” means updates, refreshes, corrections and modifications.

 

1.88

“User Personal Data” means any personal data (as defined in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, as updated, amended and replaced from time to time) relating to an End User.

 

1.89

Not used.

 

1.90

Not used.

 

 

1.91

“Valid Search Query” means a Search Query or Next Search or Mobile Next Search (as applicable) received by Google which: (i) conforms to the applicable Google Technical Protocols; (ii) is not generated by any automated, deceptive, fraudulent or other invalid means (including robots, macro programs, and internet agents) as reasonably determined by Google; and (iii) contains the applicable Client ID.

 

2.

Google as Default Search Provider

 

2.1

Schedule One (Search Distribution) of this Agreement shall apply.

 

3.

Not used.

 

4.

Payment

 

4.1

Schedule One Payments. Google shall pay Opera any payments due pursuant to clause 6.1 of Schedule One on a calendar monthly basis, within forty five (45) days following the last day of the calendar month for which the payments are applicable.

 

4.2

Not used.

 

4.3

Notwithstanding any other provision of this Agreement, Google reserves the right to suspend any payments to Opera for one (1) month if Google reasonably suspects, in its sole discretion, artificially high performance or invalid generation of Payable Desktop Queries and/or Payable Mobile Queries. At the expiry of such one (1) month period Google will by the end of the next calendar month either (i) pay the amount accrued up until the last calendar month concluded under this Agreement, or (ii) terminate this Agreement if permitted pursuant to clause 9 below.

 

4.4

If, at any point during the Term, any taxes (other than taxes based on Google's net income) are, or become, payable in relation to the distribution of the Google Products pursuant to this Agreement, Opera will be responsible for paying such taxes. All payments to Opera from Google under this Agreement will be treated as exclusive of VAT (if applicable). If Google is obliged to withhold any taxes from such payments to Opera, Google will notify Opera of this and will make such payments net of the withheld amounts. Google will provide Opera with original or certified copies of tax payments (or other sufficient evidence of tax payments) if any of these payments are made by Google.

 

4.5

All payments due to Google or to Opera will be in United States Dollars and made by electronic transfer to the account notified to the paying party by the other party for that purpose. In all cases, the party receiving payment will be responsible for any bank charges assessed by the recipient's bank.

 

4.6

The party to whom any payment is owed may charge interest at the rate of 2% per annum above the base rate of Barclays Bank PLC from time to time, from the due date until the date of actual payment, whether before or after judgment, on any fee which is overdue pursuant to this Agreement.

 

4.7

In addition to other rights and remedies Google may have, Google may offset any payment obligations to Opera that Google may incur under this Agreement against any product or service fees owed to Google and not yet paid by Opera under any other agreement between Opera and Google.

 

 

4.8

If Google overpays Opera for any reason, Google will, unless it has notified Opera otherwise, set off the overpaid amounts against Google’s payment obligations to Opera under this Agreement to which the overpaid amounts related, or require Opera to pay to Google within thirty (30) days of an invoice, any such overpaid amounts.

 

4.9

Opera may not charge any fees to End Users or Third Party Distributors in connection with the Google Products or any other Google applications or services made available under this Agreement. In the event that at any time during the Term, Opera becomes aware that any of its Third Party Distributors are charging any fees (except for data roaming fees and similar data charges) to End Users in connection with the Google Products or any Google applications or services made available under this Agreement, Opera shall: (a) immediately notify Google by email; and (b) if so requested by Google, work with Google to stop such actions and to prevent any further use of or access to the Google Products or other Google application or service through the applicable Included Opera Desktop Browser, Included Opera Mini Browser, Included Opera Mobile Browser or browser forming part of the Existing Install Base by such Third Party Distributor or further distribution by such Third Party Distributor of any versions of such Included Opera Desktop Browser, Included Opera Mini Browser or Included Opera Mobile Browser.

 

5.

Warranties

 

5.1

Google and Opera each warrant to the other that it shall use reasonable care and skill in complying with its obligations under this Agreement.

 

5.2

No conditions, warranties or other terms apply to the Google Products or to any other goods or services supplied by Google or Opera under this Agreement unless expressly set out in this Agreement. Subject to clause 7.1(b) no implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description).

 

6.

Indemnity

 

6.1

Subject to clause 6.2, Opera shall indemnify Google against all damages, liabilities costs and expenses (including settlement costs and reasonable legal fees) suffered by Google and/or any Google Group Company arising from any of the following (each a “Claim”): (i) Opera’s improper or unauthorised replication, packaging, marketing, distribution, implementation or installation of any Google Product or the Default Search Provider placement, including without limitation claims based on representations, warranties, or misrepresentations made by Opera; (ii) any claim that the Included Opera Desktop Browser, Included Opera Mini Browser, Included Opera Mobile Browser, the Existing Install Base and/or Opera Brand Features infringe(s) any Intellectual Property Rights of a third party (an “IP Claim”); and (iii) any End User claim arising out of or resulting from such End User’s use of the Included Opera Desktop Browser, Included Opera Mini Browser, Included Opera Mobile Browser or the Existing Install Base (save to the extent any such claim arises due to any Google Product), including without limitation any actions or claims in product liability, tort, contract or equity.

 

6.2

Google shall: (a) notify Opera of the Claim promptly after becoming aware of it; (b) provide Opera with reasonable information, assistance and cooperation in responding to and, where applicable, defending such Claim; and (c) give Opera full control and sole authority over the defence and settlement of such Claim. Google may appoint its own supervising counsel of its choice at its own expense.

 

7.

Limitation of Liability

 

7.1

Nothing in this Agreement shall exclude or limit either party’s liability for:

 

(a)

death or personal injury resulting from the negligence of either party or their servants, agents or employees;

 

(b)

fraud or fraudulent misrepresentation;

 

 

(c)

misuse of Confidential Information; and/or

 

(d)

payment of sums properly due and owing to the other in the course of normal performance of this Agreement.

 

7.2

Subject to clause 7.1, neither party shall be liable under or in connection with this Agreement (whether in contract, tort (including negligence) or otherwise) for any:

 

(a)

loss of anticipated savings;

 

(b)

loss of business opportunity;

 

(c)

loss of or corruption of data; or

 

(d)

indirect or consequential losses;¶

 

suffered or incurred by the other party, (whether or not such losses were within the contemplation of the parties at the date of this Agreement).

 

7.3

Subject to clause 7.1, Google will not have any obligations or liability under or in connection with this Agreement (whether in contract, tort or otherwise) in relation to any:

 

(a)

content, information or data provided toGoogle by Opera, End Users or any other third parties; or

 

(b)

Results or any third party web sites or content to which such Results may link.

 

7.4

Subject to clauses 7.1, 7.2 and 7.3, each party’s total aggregate liability under or in connection with this Agreement (whether in contract, tort or otherwise) is limited to the greater of:

 

(a)

250% of the Relevant Fees; and

 

(b)

US$5 million (five million United States Dollars).

 

The “Relevant Fees” means X/Y x Z. Where:

 

X = the fees paid and payable pursuant to Schedule One to Opera in the relevant Contract Year prior to the Applicable Time;

 

Y = the number of days elapsed in the relevant Contract Year prior to the Applicable Time; and

 

Z= 365

 

The “Applicable Time” means the time the relevant liability is to be assessed.

 

7.5

Subject to clause 7.1, Opera’s total aggregate liability to Google under clause 6.1(ii) (IP Indemnity) in connection with an IP Claim is limited to US$10 million. For the avoidance of doubt, any liability incurred by Opera under clause 6.1(ii) (IP Indemnity) shall not be applied against the liability cap specified in clause 7.4.

 

8.

Confidentiality and Publicity

 

8.1

The recipient of any Confidential Information shall not disclose that Confidential Information, except to Group Companies, employees, agents and/or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient shall ensure that those people and entities: (a) use such Confidential Information only to exercise rights and fulfil obligations under this Agreement; and (b) keep such Confidential Information confidential. The recipient may also disclose Confidential Information when required by law after giving reasonable notice to the discloser, such notice to be sufficient to give the discloser the opportunity to seek confidential treatment, a protective order or similar remedies or relief prior to disclosure.

 

8.2

Neither party may issue any press release regarding or in connection with this Agreement without the other party’s prior written approval. Google agrees that Opera may issue public announcements when required by law, including announcements to the Oslo stock exchange, without having to obtain Google’s prior consent, provided always that Opera provides Google with prior notice of any announcement required by law unless it is not possible for Opera to provide advance notice in the circumstances in which case Opera shall provide notice as soon as the announcement has occurred (notice by email being acceptable). [***]

 

 

8.3

[***]

 

9.

Term and Termination

 

9.1

Unless terminated earlier in accordance with its terms, this Agreement will begin on the Effective Date and continue for the Term. Google may extend the Initial Term by a one off 12 month period (the “Google Extension”) by providing at least 30 (thirty) days written notice before the end of the Initial Term.

 

9.2

Either Google or Opera may suspend performance and/or terminate this Agreement with immediate effect, if the other party: (a) is in material breach of this Agreement where the breach is incapable of remedy; or (b) is in material breach of this Agreement where the breach is capable of remedy and fails to remedy that breach within thirty (30) days after receiving written notice of such breach.

 

9.3

Either Google or Opera may suspend performance and/or terminate this Agreement with immediate effect, if in respect of the other party or any Group Company of the other party any of the following events occur:

 

(a)

it is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due for payment;

 

(b)

a petition is presented or documents filed with a court or any registrar or any resolution is passed for its winding-up, administration or dissolution or for the seeking of relief under any applicable bankruptcy, insolvency, company or similar law;

 

(c)

any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, supervisor, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets;

 

(d)

any event analogous to the events listed in (a) to (c) above takes place in respect of it in any jurisdiction.

 

9.4

Notwithstanding any other provision of this Agreement, Google may terminate this Agreement immediately upon written notice to Opera if:

 

(a)

Opera is in breach (whether or not material) of clause 14 (Prohibited Actions), provided that Google provides such written notice of termination to Opera within thirty (30) days of the date on which Google became aware of the relevant breach (and such termination right shall be without prejudice to Google’s rights under clause 9.2);

 

(b)

if Opera is in material breach of any Termination Trigger Clause (as defined below) and, where such breach is capable of remedy, fails to remedy that breach within fourteen (14) days after receiving written notice of the breach; or

 

(c)

if Opera is in breach (whether or not material) of a Termination Trigger Clause and fails to remedy that breach within thirty (30) days after receiving written notice of the breach.

 

 

9.5

For the purposes of this clause 9, a “Termination Trigger Clause” means each of the following clauses:

 

(a)

Clause 13 (Third Party Distribution); and

 

(b)

[***]

 

9.6

Notwithstanding any other provision of this Agreement, Google may terminate this Agreement immediately upon notice to Opera if Opera is in material breach of this Agreement more than twice notwithstanding any cure of such breaches.

 

9.7

Notwithstanding any other provision of this Agreement, in the event that the government or controlling body of any country or territory in which Google Products are distributed imposes any law, restriction or regulation that makes it illegal to distribute the Google Products, or any portion thereof, into such country or territory, or if any such law, restriction or regulation places a substantial burden on Google, where substantial is measured with respect to Google’s economic benefit under this Agreement, as determined by Google in its reasonable and good faith judgment (such substantial burden, a “Substantial Burden”), then Google may require Opera to suspend all distributions of Google Products in such country or territory until such time as such law, restriction or regulation is repealed or nullified or modified such that it is no longer illegal or a Substantial Burden, as applicable, for Google Products to be distributed in such country or territory (“Google Special Suspension”). If a Google Special Suspension occurs, Parties will negotiate in good faith to lower the Minimum Query Thresholds set out in clause 7 of Schedule One as well as the payments due under clause 6 of Schedule One. Notwithstanding any other provision of this Agreement, in the event that the government or controlling body of any country or territory in which Opera Browsers are distributed imposes any law, restriction or regulation that makes it illegal to distribute the Opera Browsers, or any portion thereof, into such country or territory, or if any such law, restriction or regulation places a substantial burden on Opera, where substantial is measured with respect to Opera’s economic benefit under this Agreement, as determined by Opera in its reasonable and good faith judgment (such substantial burden, a “ Substantial Burden”), then Opera may suspend all distributions of Opera Desktop Browsers, Opera Mini Browsers or Opera Mobile Browsers in such country or territory until such time as such law, restriction or regulation is repealed or nullified or modified such that it is no longer illegal or a Substantial Burden, as applicable, for such browsers to be distributed in such country or territory (“Opera Special Suspension”). If an Opera Special Suspension occurs, Parties will negotiate in good faith to lower the Minimum Query Threshold of clause 7 in Schedule One as well as the payments due under clause 6 of Schedule One.

 

9.8

Upon the expiration or termination of this Agreement for any reason: (a) all rights and licences granted by each party under this Agreement shall cease immediately; (b) if requested, each party shall use its reasonable endeavours to promptly return to the other party, or destroy and certify the destruction of, all Confidential Information disclosed to it by the other party; (c) the fees payable to Opera hereunder will immediately cease accruing following such expiration or termination of this Agreement, and Google will within sixty (60) days pay to Opera any undisputed amounts which have accrued from the time of the most recent payment to Opera through the date of termination or expiration of this Agreement; (d) Opera will promptly pay to Google any amounts owed to Google; and (e) if requested by Google, Opera will immediately stop marketing and distributing the Google Products to the extent technically possible.

 

 

9.9

Neither party will be liable to the other for any damages resulting solely from termination of this Agreement as permitted for under this Agreement.

 

10.

The rights and obligations of any clauses which under their terms or by implication ought to survive, shall survive the expiration or termination of this Agreement.

 

11.

Intellectual Property Rights

 

11.1

Opera acknowledges that Google and/or its licensors own all right, title and interest, including without limitation all Intellectual Property Rights in and to the Google Products, the Google Brand Features, and all improvements thereof. Google will not be restricted from selling, licensing, modifying, or otherwise distributing the Google Products and/or the Google Brand Features to any third party.

 

11.2

Except to the extent expressly stated otherwise in this Agreement, neither Google nor Opera shall acquire any right, title, or interest in any Intellectual Property Rights belonging to the other party, or the other party’s licensors. Any rights not expressly granted herein are deemed withheld.

 

12.

Trade Mark Licence

 

12.1

Google grants to Opera a non-exclusive, non-transferable and non-sublicensable licence during the Term to use Google’s Brand Features solely to fulfil Opera’s obligations under this Agreement in accordance with its terms, subject to compliance with the Google Branding Guidelines as notified by Google to Opera from time to time. Any use of Google’s Brand Features pursuant to this Agreement is subject to Google’s prior written permission (including via email).

 

12.1A

If permitted by Google in writing, in its sole discretion (which may be revoked by written notice at any time), Opera may pre load bookmarks to Google Products into such Opera Mini Browsers and/or Opera Mobile Browsers as Google may specify, in accordance with the licence in clause 12.1 of this Agreement.

 

12.2

All goodwill arising from the use by Opera of Google’s Brand Features shall belong to Google. Opera acknowledges that the Google Brand Features are owned solely by Google and Google Group Companies.

 

12.3

Opera grants to Google and each Google Group Company a non-exclusive licence during the Term to: (a) use Opera Brand Features to exercise its rights and fulfil its obligations under this Agreement and in its marketing material and both internal and external presentations, subject to compliance with the then current Opera trademark branding guidelines (currently located at www.opera.com/portal/contract/trademark) as notified by Opera to Google from time to time; and (b) sub-licence the rights granted in this clause to Mobile Operators. All goodwill arising from the use by Google of Opera Brand Features and trademarks shall belong to Opera.

 

 

13.

Third Party Distribution

 

13.1

Subject to compliance with the remainder of this clause 13, Opera may distribute Google Opera Browsers to Third Party Distributors, provided that such Google Opera Browsers are not modified in any way prior to use by End Users.

 

13.2

Opera shall, and shall ensure that each Third Party Distributor shall, distribute Google Opera Browsers in a manner that is no less protective of the Google Products and Google than the terms of this Agreement and shall include at a minimum and without limitation, contractual provisions which disclaim, to the extent permitted by applicable law:

 

(a)

Google’s liability for any damages, whether direct, indirect, incidental or consequential; and

 

(b)

all warranties with respect to Google, including warranties of merchantability, fitness for a particular purpose, and non-infringement (for avoidance of doubt, these disclaimers may be accomplished using a phrase such as “Opera’s suppliers” and need not specify Google by name).

 

13.3

During the Term, Opera shall, and shall require each Third Party Distributor to, comply with the following in respect of their distribution of any Google Opera Browser:

 

(a)

Google’s client application guidelines, a current version of which is attached hereto as Exhibit F, as may be updated by Google from time to time (the “Client Application Guidelines”); and

 

(b)

Google’s mobile browser guidelines, a current version of which is attached hereto as Exhibit G, as may be updated by Google from time to time (the “Mobile Browser Guidelines”).

 

13.4

Google in its sole discretion may direct Opera to cease distributing Google Opera Browsers to or through any Third Party Distributor that, in Google’s sole discretion:

 

(a)

is not compliant with the Client Application Guidelines and/or the Mobile Browser Guidelines;

 

(b)

would harm or devalue Google’s business, brand or name; and/or

 

(c)

violate Google’s privacy policy.

 

In such circumstances, as soon as reasonably practicable (but in no event longer than fourteen (14) days following receipt of Google?s notice), Opera shall cause the relevant Third Party Distributor(s) to cease distribution of such Google Opera Browser and Google will have no obligation under clause 6.1 of Schedule One of this Agreement with respect to any Search Queries submitted to Google from any such Google Opera Browser. Any such Opera Desktop Browser, Opera Mobile Browser or Opera Mini Browser that Opera subsequently allows such Third Party Distributor to distribute shall not include any of the Google Products and/or Brand Features (and, for the purposes of this Agreement, shall be deemed to be an Excluded Opera Browser).

 

13.5

Opera shall ensure that no Third Party Distributor bundles any software or browser extensions in or with Google Opera Browsers without Google’s prior written approval, and if Google grants its approval, Opera shall provide Google with information about any such bundling arrangements at Google’s request.

 

13.6

[***]

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

[***]

 

13.7

[***]

 

13.8

[***]

 

14.

Prohibited Actions.

 

14.1

Opera shall not, and shall not knowingly allow any third party to (and shall require that Third Party Distributors do not, and do not knowingly allow any third party to):

 

(a)

modify, obscure or prevent the display of all, or any part of, any Results;

 

 

(b)

edit, filter, truncate, append terms to or otherwise modify any search query entered into a Search Access Point;

 

(c)

implement any click tracking or other monitoring of Results;

 

(d)

display any Results in pop-ups, pop-unders, exit windows, expanding buttons, animation or other similar methods;

 

(e)

interfere with the display of or frame any Search Results Page or any page accessed by clicking on any Results;

 

(f)

(without prejudice to the generality of clause 14.1(e) above) edit, modify, truncate, filter or change the order of the information contained on any Search Results Page, including but not limited to commingling any Search Results and/or Ads with search and/or advertising results provided by a third party;

 

(g)

(without prejudice to the generality of clause 14.1(e) above) minimise, remove or otherwise inhibit the full and complete display of any Search Results Page (including any Search Results and/or Ads) and/or the corresponding Destination Pages;

 

(h)

display any content between any Results and the corresponding Destination Page or place any interstitial content immediately before any Search Results Page;

 

(i)

save to the extent permitted pursuant to clause 13.6 of this Agreement above, enter into any type of co-branding, white labelling, syndication or subsyndication arrangement with any third party in connection with any Google Product, any Results or Ad Revenue (including any arrangement under which a third party pays to or receives from Opera any fees, revenue share or other amounts in return for the display of Results and/or access to Google Products);

 

(j)

transfer, sell, lease, lend or use for timesharing, service bureau or other unauthorised purposes, the Google Products or access thereto (including, but not limited to Search Results and/or Ads, or any part, copy or derivative thereof);

 

(k)

directly or indirectly, (i) offer incentives to End Users or any other persons to generate Search Queries or clicks on Results, (ii) fraudulently (or through any automated, deceptive or other invalid means, including, but not limited to, click spam, robots, macro programs, and Internet agents) generate Search Queries or clicks on Results or (iii) modify Search Queries or clicks on Results;

 

(l)

“crawl”, “spider”, index or in any non-transitory manner store or cache information obtained from the Google Search Service (including any Results);

 

(m)

redirect an End User away from a Search Results Page and/or a Destination Page;

 

(n)

remove, deface, obscure, or alter Google's copyright notice, trademarks or other proprietary rights notices affixed to or provided as a part of the Google Products (including on any Search Results Page), or any other Google technology, software, materials and documentation provided to Opera in connection with this Agreement;

 

 

(o)

modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Google Search Service, Google data protocols or any other Google Product or Google technology, content, data, routines, algorithms, methods, ideas design, user interface techniques, software, materials and documentation;

 

(p)

place or associate anything on or near any Search Access Point or the Google Search Service that in any way implies that Google is responsible for any content, information or web site accessed via any Google products or services;

 

(q)

create or attempt to create a substitute or similar service or product through use of or access to any of the Google Products or proprietary information related thereto;

 

(r)

provide End Users with access (directly or indirectly) to any Results or Google Products using any application, plug-in, helper, component or other executable code that runs on a user’s computer. For the avoidance of doubt, an End User using any browser add-ons or third party extension hosted by Opera (prior to such add-on or extension being taken down pursuant to Opera’s standard take-down procedure) to access such Results or Google Products shall not be considered a Prohibited Action;

 

(s)

display on any web site which is distributed by Opera with an Included Opera Browser, the Existing Install Base, or otherwise promoted by Opera to End Users of an Included Opera Browser and/or the Existing Install Base in connection with their use of the Included Opera Browser, the Existing Install Base and/or any content that violates or encourages conduct that would violate any applicable laws, any third party rights or the Google Technical Protocols;

 

(t)

distribute the Google Products, either in whole or in part, in any way or to any other person, other than as permitted by this Agreement, without the prior written consent of Google or for unauthorised purposes;

 

(u)

serve or otherwise place any advertisements within or on top of any Search Access Point;

 

(v)

block or otherwise take any action to prevent or hinder access by End Users to the Google Products, Search Access Points or to any information required to use Google applications or services, except to the extent that standard content filtering solutions such as IWF filtering and filtering solutions required by Opera's Third Party Distributors or by regulatory authorities would filter any such information;

 

(w)

enable or allow any third party to access or use any User Personal Data related to Google’s Products (unless aggregated and anonymised) or any Client ID;

 

 

(x)

enable or permit Scraping; or

 

(y)

insert into the Included Opera Browser or the Existing Install Base any viruses, worms, date bombs, time bombs, or other code that is specifically designed to cause a Google Product to cease operating, or to damage, interrupt, allow access to or interfere with a Google Product.

 

14.2

Opera shall, and shall require that Third Party Distributors, take appropriate measures to prevent any third party from carrying out any of the activities in clause 14.1, where it is reasonably possible for such measures to be implemented.

 

15.

Other Agreements

 

15.1

With effect from the Effective Date, this Agreement replaces and supersedes the agreements between the parties listed at (a) to (c) below (the “Original Agreements”). Nothing in this Agreement shall affect the rights, obligations and liabilities of the parties arising under the Original Agreements prior to the Effective Date:

 

(a)

strategic affiliate agreement dated as of September 5, 2001 (as amended by amendments one to twelve) which is hereby terminated with effect on and from the Effective Date and notwithstanding the foregoing the parties agree that Google’s obligation to continue to pay Opera a “Referral Traffic Payment” following termination of the agreement shall not apply following termination of such agreement;

 

(b)

Google distribution agreement with an effective date of 1 November 2009 (as amended by amendments one to seven) which is hereby terminated with effect on and from the Effective Date; and

 

(c)

promotion and distribution agreement effective as of 1 November 2011, which is hereby terminated with effect on and from the Effective Date.

 

16.

Technical Implementation.

 

16.1

Upon Google’s request, Opera shall provide Google with the latest version of the Opera Desktop Browser, Opera Mini Browser and/or the Opera Mobile Browser for testing and evaluation purposes [***].

 

16.2

Google will assign a technical representative to Opera, who will provide reasonable assistance to Opera with the implementation of the Opera Desktop Browser, Opera Mini Browser and/or Opera Mobile Browser in accordance with this Agreement. The Google technical representative will only be responsible for providing assistance to Opera, and will not provide any direct support to End Users or any other third party. Opera will assign a technical representative to Google who will act as the primary contact for Google in any technical or support issues. Each party shall use reasonable endeavours to respond to technical and support queries within seven (7) days of receiving the query.

 

16.3

Opera shall provide support services with respect to each Included Opera Browser and/or the Existing Install Base to End Users as generally available at its own expense. Google will make available support to End Users as generally available for all users of the same Google Products, applications or services distributed organically by Google.

 

 

16.4

If Google modifies the Google Branding Guidelines, the Google Technical Protocols or any other technical requirements and such modification requires action by Opera, Opera will implement the applicable changes no later than thirty (30) days from receipt of notice from Google, or such longer time frame as may be agreed by Google in writing (including by email).

 

16.5

Google may require Opera to make immediate fixes or changes to the implementation of any Included Opera Browser, the Existing Install Base or Search Access Point if a fault in such implementation could reasonably cause or is causing an interruption or degradation of the applicable Google Product and Opera shall make such fixes or changes as soon as reasonably possible.

 

17.

General

 

17.1

The words "include" and "including" will not limit the generality of any words preceding them.

 

17.2

All notices of termination or breach must be in English, in writing, addressed to the other party’s legal department and: (a) if for Opera, sent to Opera’s address or fax number, Attn. General Counsel; and (b) if for Google [***], or such other address as either party has notified to the other in accordance with this clause. All other notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).

 

17.3

Neither party may assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the other, except that Google may assign its rights and/or obligations under this Agreement to any Google Group Company without Opera’s consent. Any other attempt to transfer or assign is void.

 

17.4

A party may terminate this Agreement immediately upon written notice if there is a Change of Control of the other party, other than in the context of an internal solvent restructuring or reorganisation of its Group Companies. In this clause the term "Control" shall mean the possession by any person(s) directly or indirectly of the power to direct or cause the direction of another person and "Change of Control" is to be construed accordingly. The party experiencing such Change of Control will notify the other party in writing of this within thirty (30) days after the Change of Control. If the terminating party has not exercised its right of termination under this clause within thirty (30) days following receipt of notice of the other party’s Change of Control, that right of termination will expire.

 

17.5

Opera will comply with all applicable export and re-export control laws and regulations (“Export Laws”), which the parties agree include: (i) the Export Administration Regulations maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (iii) the International Traffic in Arms Regulations maintained by the U.S. Department of State. Google will provide Opera with reasonable assistance in providing information pertaining to the Google technologies made available to Opera pursuant to this Agreement as is required by Opera to meet its obligations under this clause.

 

 

17.6

Opera will comply with all applicable anti-bribery laws, including the US Foreign Corrupt Practices Act of 1977, 15 U.S.C. Section 78dd-1, et seq (“Anti-Bribery Laws”), which prohibits corrupt offers of anything of value to a government official to obtain or keep business. Opera will not engage in any conduct that could create l for Google under any Anti-Bribery Laws. If Opera does not comply with this Section, such non-compliance will be considered a material breach of this Agreement and Google may terminate this Agreement immediately.

 

17.7

Opera may not sub-contract its obligations under this Agreement, in whole or in part, without the prior written consent of Google.

 

17.8

Except as expressly stated otherwise, nothing in this Agreement shall create or confer any rights or other benefits in favour of any person other than the parties to this Agreement.

 

17.9

Except as expressly stated otherwise, nothing in this Agreement shall create an agency, partnership or joint venture of any kind between the parties.

 

17.10

Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement if the failure or delay is caused by any circumstances beyond its reasonable control.

 

17.11

Failure or delay in exercising any right or remedy under this Agreement shall not constitute a waiver of such (or any other) right or remedy.

 

17.12

The invalidity, illegality or unenforceability of any term (or part of a term) of this Agreement shall not affect the continuation in force of the remainder of the term (if any) and this Agreement.

 

17.13

Subject to clause 7.1(b), this Agreement sets out all terms agreed between the parties in relation to its subject matter and supersedes all previous agreements between the parties relating to the same. In entering into this Agreement neither party has relied on any statement, representation or warranty not expressly set out in this Agreement.

 

17.14

This Agreement is governed by English law and the parties submit to the exclusive jurisdiction of the English courts in relation to any dispute (contractual or non-contractual) concerning this Agreement, except that either party may apply to any court for an injunction or other relief to protect its Intellectual Property Rights. If this Agreement is translated into any other language, if there is conflict the English text will take precedence.

 

 

SCHEDULE ONE – SEARCH DISTRIBUTION

 

1.

Distribution

 

1.1

Subject to the terms and conditions of this Agreement, Google hereby grants to Opera a nontransferable, non-sublicensable, royalty-free, nonexclusive license to distribute the Google Search Service in the manner set forth in this Agreement.

 

2.

Default Search Provider for Search Access Points

 

2.1

Subject to clause 3 of this Schedule One below, Opera shall set Google as the Default Search Provider for all Search Access Points on all Included Opera Browsers distributed in the Territory during the Term by Opera or any Third Party Distributor.

 

2.2

Subject to clause 3 of this Schedule One below, within thirty (30) days of the Effective Date, Opera shall (to the extent it has not already done so and to the extent that it is technically possiblem) set Google as the Default Search Provider for all Search Access Points on those browsers in the Existing Install Base where the applicable End User has not previously actively selected a default search provider in their settings.

 

3.

[***]

 

3.1

[***]

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

(d)

[***]

 

(e)

[***]

 

(f)

[***]

 

3.2

[***]

 

3.3

[***]

 

4.

[***]

 

4.1

[***]

 

(a)

[***]

 

(b)

[***]

 

[***]

 

 

5.

[***]

 

5.1

[***]

 

5.2

[***]

 

5.3

[***]

 

6.

[***]

 

6.1

[***]

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

(i)

[***]

 

(ii)

[***]

 

(iii)

[***]

 

6.2

[***]

 

6.3

[***]

 

6.4

Google will pay to Opera the payments stated in this clause 6 of this Schedule One subject to the following provisions:

 

(a)

Google may send uncompensated test Search Queries to the Google Search Service or make uncompensated clicks on Ads or generate uncompensated impressions of or action regarding Ads at any time where reasonably required to monitor or test the Google Search Service;

 

(b)

notwithstanding any other provision of this Agreement, until Google notifies Opera in writing to the contrary, no payments shall become due under this Agreement for: (i) any Search Queries which are made through the ‘Opera TV’ browser (as such browser may be re-branded, updated or succeeded from time to time), or (ii) any Ad Revenues that result from such Search Queries; and

 

(c)

notwithstanding any other provision of this Agreement, no payments shall become due under this Agreement for: (i) any Search Queries which are not made through a Payable Search Access Point, or (ii) any Ad Revenues that result from such Search Queries, irrespective of any use of the Google Search Service for any such Search Query. In accordance with clause 9.4 of this Schedule One, Opera shall ensure that a Client ID is not included in any such Search Query.

 

 

6.5

Other than as expressly set out in this clause 6 of this Schedule One or elsewhere in this Agreement, Google and Opera will each retain all revenue generated from the provision of their respective products and services without further accounting to any other party (including any revenue generated by Google or any Google Group Company from Ads.)

 

7.

[***]

 

7.1

[***]

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

7.2

[***]

 

(a)

[***]

 

(b)

[***]

 

[***]

 

(c)

[***]

 

8.

Reporting

 

8.1

On a monthly basis during the Term, in respect of the previous month, Google will provide Opera with the following reports:

 

(a)

Not used.

 

(b)

Not used.

 

(c)

Not used.

 

(d)

In respect of each month in the period commencing on and from the 2015 Renewal Date until the expiry or termination of this Agreement: the Net Ad Revenues generated from all Payable Feature Phone Queries, all Payable Smartphone Queries, and all Payable Desktop Queries, each attributable to the applicable month.

 

(e)

In respect of each month in the period commencing on and from the 2018 Renewal Date: the Net Ad Revenues attributable to the applicable month, generated from each Client ID assigned in respect of a Revenue Share Distributor.

 

9.

Implementation and Maintenance

 

9.1

During the Term, Opera will ensure that the Google Search Service on Included Opera Browsers and the Existing Install Base, is implemented and maintained in accordance with (a) the Google Branding Guidelines, (b) the screenshots and specifications set forth in Exhibits A and B; (c) the Google Technical Protocols (if any) and any other technical requirements and specifications applicable to the Google Search Service that are provided to Opera by Google from time to time.

 

 

9.2

Opera shall only implement Navigational Error Pages client-side without changing or obscuring server error codes. Opera shall ensure that the Navigational Error Page does not include any advertisements and that an End User can opt-out of the Navigational Error Page handling by Opera through a link on the Navigational Error Page.

 

9.3

Opera shall ensure that the correct Client IDs are implemented in accordance with instructions from Google and that every Payable Desktop Query and every Payable Mobile Query entered by an End User includes the correct Client ID. For the avoidance of doubt, Google understands and acknowledges that Opera shall not be required to update the Client ID in the Existing Install Base where it is not technically possible to do so.

 

9.4

Opera shall ensure that Client IDs are only implemented in respect of Payable Search Access Points. Without prejudice to the generality of the forgoing, Opera shall ensure that Client IDs are not included in:

 

(a)

any location or Search Access Point other than a Payable Search Access Point;

 

(b)

any Excluded Opera Desktop Browsers, Excluded Opera Mobile Browsers or Excluded Opera Mini Browsers (even if such browsers contain an option to select the Google Search Service in a menu of search providers);

 

(c)

any Excluded Search Access Points (even if such Excluded Search Access Points contain an option to select the Google Search Service in a menu of search providers).

 

9.5

Opera shall provide such information to Google as Google may reasonably request with respect to the use and application of any Client IDs.

 

9.6

On and from the Amendment Effective Date, Opera shall ensure that: (a) Payable Smartphone Queries and Payable Feature Phone Queries are identified by separate and distinct Client IDs; and (ii) only versions of the Opera Mini Browser and Opera Mobile Browser that are installed on Smartphones will contain Client IDs associated with Payable Smartphone Queries. Google and Opera acknowledge that prior to the Amendment Effective Date, Client IDs associated with Payable Smartphone Queries may have been included in some Opera Mini Browsers and Opera Mobile Browsers that are installed on Devices that are not Smartphones. On and from the Amendment Effective Date, the Client IDs which Opera shall implement in respect of Payable Smartphone Queries shall be the following, as applicable: ms-opera-mobile, ms-opera-mini-android, ms-opera-mini-iphone, ms-opera-mobile-android and ms-opera-coast (together with such additional alpha numeric codes as Google may specify to Opera).

 

 

9.7

[***]

 

(a)

[***]

 

(b)

[***]

 

9.8

[***]

 

10.

Changes and Modification

 

10.1

With regards to Included Opera Desktop Browsers and those Opera Desktop Browsers which form part of the Existing Install Base, Opera shall where technically possible make changes to the user interface of the default search box within thirty (30) days of the Effective Date to comply with the mock-up in Exhibit A (part c). Opera shall not implement such changes into live use until Google has provided written confirmation of its approval of such changes (such approval to be at Google’s absolute discretion and which may be by email). Google shall provide its written confirmation or rejection within fourteen (14) days from Opera’s request. Failure to notify shall not constitute approval by Google. In the event that the changes are not approved by Google, Opera shall, within fourteen (14) days of notice from Google that the changes are not approved, make further changes to achieve compliance with Exhibit A (part c) and the process in this clause 10.1 of this Schedule One shall again apply.

 

10.2

In respect of: (a) any new browser that Opera plans to release during the Term which, if released, would be an Included Opera Browser; and (b) any proposed Material Change to an Included Opera Browser or any browser which forms part of the Existing Install Base during the Term (save those changes approved pursuant to clause 10.1 of this Schedule One above), Opera will:

 

(i)

notify Google of this in writing (including by email) at least thirty (30) days’ prior to the expected launch of such new browser or Material Change and submit a mock up and any other relevant details of the proposed new browser or Material Change for approval by Google; and

 

(ii)

not implement the proposed Material Change or launch the new browser into live use (as applicable) until Google has provided written confirmation of its approval of such new browser or Material Change (such approval not to be unreasonably withheld and which may be by email) at least fourteen (14) days before the expected launch of such new browser or Material Change, provided that failure to notify shall not constitute approval by Google. Any new mock-ups agreed shall be treated as forming part of Exhibit A and/ or Exhibit B (where applicable, replacing any relevant old mock-ups).

 

10.3

If at any time during the Term, Opera would like to add additional Search Access Point(s) on any Included Opera Browser or any browser which forms part of the Existing Install Base beyond those listed in Exhibit A and/ or Exhibit B, Opera shall notify Google and the parties shall work together in good faith for the purpose of determining the feasibility of implementing such new Search Access Point. Opera shall not add any new Search Access Point(s) to any Included Opera Browsers or any browsers which form part of the Existing Install Base beyond those listed in Exhibit A and/ or Exhibit B, unless the parties execute a written amendment to this Agreement which permits the same.

 

 

10.4

Opera shall ensure that any proposed changes to the user interface for the g of any Search Access Point comply with the requirements at clause 9 of this Schedule One.

 

11.

Promotion of Google Accounts and Google Products.

 

11.1

Opera shall use its reasonable endeavours to:

 

(a)

where Google makes available an API or other reasonable means for Opera to determine whether an End User is signed in to a Google Account or not, prompt any End User who is not signed in to a Google Account to sign in to or register for a Google Account; and

 

(b)

subject to clause 11.2 of this Schedule One, promote such Google Products as Google nominates from time to time (or failing such nomination, such Google Products as Opera reasonably nominates): (i) by including links and Brand Features relating to those products in the “Speed Dial” screen of Opera Desktop Browsers, Opera Mini Browsers and Opera Mobile Browsers; and (ii) as otherwise agreed between the parties in writing,

 

provided in each case that Opera reasonably considers that such prompts or promotions (as applicable) would not have a material detrimental impact on the relevant End User’s experience or Opera’s commercial or business interests.

 

11.2

Google may from time to time notify Opera in writing if Google does not wish Opera to promote certain Google Products under clause 11.1(b). Opera shall cease to promote any Google Products that are the subject of any such notice within 7 days of its receipt of that notice.

 

12.

Compliance with Google Product Terms.

 

Without prejudice to Google’s (or the relevant Google Group Company’s) rights and remedies under the terms applicable to any Google Product, Opera shall ensure that, within 60 days from the 2015 Renewal Date, its and its Group Companies’ use of any Google Product (including Google Play and YouTube) is and will thereafter remain in accordance with the terms that apply to that Google Product.

 

EXHIBIT A

 

[***]

 

 

EXHIBIT B

 

[***]

  

 

EXHIBIT C

 

Not used.

 

EXHIBIT D

 

Not used.

 

EXHIBIT E

 

Not used.

 

 

Exhibit F

 

Client Application Guidelines

 

 

 

Client Application Guidelines for Applications Bundled With Google Products

 

1. Introduction. People using Google’s services or products distributed with Google Products should have clear disclosure, meaningful choice and the best experience possible. Users should not have to deal with illegal, misleading, deceptive, harmful or hard-to-uninstall software. Google’s “Software Principles” (available at http://www.google.com/about/company/software-principles.html) and “Unwanted Software Policies” (available at http://www.google.com/about/company/unwantedsoftwarepolicy.html) and these Client Application Guidelines (“Guidelines”) govern any applications bundled with a Google Product for distribution (each a “Distributor App”) and any Third Party Bundled Apps (as defined in Section 7 of these Guidelines). Collectively, the Software Principles and the Unwanted Software Policies shall constitute the “Policies”.

 

Capitalized terms not defined in these Guidelines are defined in the Google Distribution Agreement between Distributor and Google (“Agreement”). If these Guidelines conflict with the terms of the Agreement, the Agreement will control. Any reference in these Guidelines to an “application” means an application, plug-in, extension, helper, component or other executable code.

 

2. Compliance.

 

2.1. Bundle Distribution. Bundling and distribution of the Google Products together with the Distributor Apps must be performed in accordance with the Agreement. Distributor must ensure that the Distributor Apps (and any updated or subsequent versions of those applications) comply at all times with these Guidelines and the Policies, each of which may be amended from time to time.

 

2.2. Enforcement. At any time during the Term, Google may re-examine a Distributor App for compliance with these Guidelines and the Policies, and Distributor agrees to fully cooperate with Google in any such reexamination. In addition to any other right of suspension or termination in the Agreement, (a) Google may suspend bundling and distribution of the Google Products in association with any Distributor App that is not in compliance with these Guidelines or the Policies until such noncompliance has been cured (as determined by Google in its sole discretion); and (b) if Distributor does not remedy any such noncompliance within 30 days of notice or is not in compliance with these Guidelines or the Policies more than twice during the Term, regardless of cure, Google may terminate the Agreement (in whole or in part).

 

3. End User Choice. For purposes of these Guidelines, “User Choice” means an option that can be switched between “on”, “yes” or something similar and “off”, “no” or something similar by the End User with a single action (e.g. a click on a button). Except as permitted under Section 5 of these Guidelines, during the download, installation or update of a Distributor App, End Users must be presented a separate User Choice for each installation option, user selection or user consent, and each such User Choice (a) must be displayed as a separate line item with a separate checkbox or similar acknowledgement, and (b) must be selectable without having to take any other action (e.g. no inactive checkboxes). Distributor must not mislead the End User into selecting or accepting a particular User Choice.

 

4. No Misleading, Deceptive or Harmful Practices.

 

4.1. Clear Download and Installation Choices.

 

(a) A Distributor App may not be downloaded to an End User’s computer without full, accurate, clear and conspicuous disclosure and End User consent to the download (i.e. no “drive-by” downloads).

 

(b) Installation screens for Distributor Apps must ensure that the End User consents to the installation. The first installation screen upon downloading a Distributor App must fully, accurately, clearly and conspicuously disclose to the End User the name of the Distributor App, the entities responsible for it, the principal and significant features of the Distributor App, and the end user license agreement and privacy policy applicable to such Distributor App. The first installation screen must also conform to the installation screen mockup(s) attached to the Agreement, if any.

 

 

(c) A Distributor App must not use, or permit a third party to use, an End User’s computer for any purpose unless (i) such use is fully, accurately, clearly and conspicuously disclosed to the End User, and (ii) the End User consents to such use.

 

(d) Distributor must not induce an End User to install a software component by intentionally misrepresenting that it is necessary for security or privacy, or in order to open, view or play a particular type of content.

 

4.2. Prohibited Behavior. A Distributor App must not engage in illegal, misleading, deceptive, harmful, harassing, or otherwise annoying practices, or practices that tend to degrade the speed or overall quality of an End User’s experience (in each case, as determined by Google in its sole discretion). For example, a Distributor App may not do any of the following:

 

(a) Intentionally create, facilitate the creation of, or exploit any security vulnerabilities in an End User’s computer.

 

(b) Trigger pop-ups, pop-unders, exit windows, or similar obstructive or intrusive functionality that materially interferes with an End User’s web navigation or browsing or the use of his or her computer.

 

(c) For a period of six months after an End User declines to take (or reverses) an action with respect to that Distributor App (including, without limitation, during installation, use, update or uninstallation of a Distributor App), re-prompt the End User to take, or try to deceive the End User into taking, such action.

 

(d) Redirect browser traffic away from valid DNS entries.

 

(e) Interfere with or bypass general browser messaging, functionality or performance, including without limitation general rendering of web pages (for example, by injection of html code into web pages viewed by the End User on a browser, where such html code is not provided specifically for the purpose of enhancing either (i) the quality of rendering or (ii) the speed of rendering of the page called by the End User).

 

(f) Engage in an activity that violates any applicable law or regulation.

 

(g) Contain any viruses, worms, trojan horses, or the like.

 

4.3. Personally Identifiable Information. If a Distributor App collects an End User’s personally identifiable information or transmits such information to any entity other than the End User, or collects or transmits information related to an End User’s computer, or Internet usage or activity in a manner that could collect or transmit such End User’s personally identifiable information (such as through keystroke logging), prior to the first occurrence of any such collection or transmission, Distributor must (a) fully, accurately, clearly and conspicuously disclose: (i) the type of information collected (described with specificity in the case of personally identifiable information), (ii) the method of collection (e.g. by registration, etc.) and (iii) the location of (i.e. a link to) the privacy policy that governs the collection, use and disclosure of the information, and (b) obtain the End User’s consent to such collection and/or transmission.

 

4.4. Transparency.

 

(a) Any disclosure made in connection with a Distributor App must be designed so that it will be read by and adequately inform a typical user. The appearance (e.g. font size, color, shading) of any such disclosure should be as prominent as other information on the same screen or page.

 

(b) Neither Distributor nor any of its distribution or bundling partners may mislead End Users or create End User confusion with regard to the source, owner, purpose, functionality or features of Distributor Apps. Every Point of Contact for a Distributor App must clearly, conspicuously, accurately and consistently identify the Distributor as the source of that application and the associated functionality. A “Point of Contact” is any point of contact with an End User that is related to a Distributor App, including without limitation (i) web pages promoting the Distributor App or from which the Distributor App is made available for download, (ii) the Distributor App offer and installation screens, (iii) the Distributor App user interface, and (iv) information regarding the Distributor App in the operating system menu of an End User’s computer.

 

4.5. No Misleading Google Branding or Attribution. Distributor Apps, and any related collateral material, must not claim endorsement or support from Google or use Google branding to mislead or confuse End Users regarding the source or owner of the Distributor Apps.

 

 

5. Changes to an End User’s Settings.

 

5.1. Restriction. A Distributor App may not (a) make changes to the operating system or application or data settings on an End User’s computer (“End User Settings”); or (b) modify the operation or display of other applications or websites (other than websites that Distributor owns) on an End User’s computer.

 

5.2. Expected Changes to End User Settings. Notwithstanding Section 5.1 of these Guidelines, a Distributor App may make changes to End User Settings, so long as (a) the End User could reasonably expect such changes to be made in connection with his or her use of the Distributor App (as determined by Google in its sole discretion), (b) Distributor fully, accurately, clearly and conspicuously discloses the changes and the practical effect of such changes to the End User, and (c) the End User consents to make such changes.

 

5.3. Minor Changes to End User Settings. Notwithstanding Section 5.1 of these Guidelines, a Distributor App may make minor changes to an End User’s computer, so long as the End User could reasonably expect such changes to be made in connection with his or her use of the Distributor App (as determined by Google in its sole discretion).

 

6. EULA and Privacy Policy. Each Distributor App must comply with all applicable laws and regulations and must be distributed pursuant to an end user license agreement (“EULA”) that complies with all applicable laws and regulations. Distributor and its Distributor App(s) must comply with the EULA and Distributor’s privacy policy. The applicable EULA and privacy policy must be readily and easily accessible during the download and installation process, as well as from a link in each Distributor App. If a Distributor App collects or transmits any information related to the End User's use of his or her computer that is not required to be disclosed and consented to pursuant to Section 4.3 of these Guidelines, then the collection and use of such other information must be clearly and conspicuously disclosed in the applicable privacy policy.

 

7. Third Party Bundled Applications.

 

7.1. Additional Terms for Third Party Bundled Applications. Subject to Google’s prior written approval and the terms of the Agreement, Distributor may offer a third party application during the download, installation or update of a Distributor App (each a “Third Party Bundled App”) so long as any such Third Party Bundled Apps comply with all the requirements applicable to the Distributor Apps set forth in these Guidelines. Without limiting the foregoing, all of Google’s rights and Distributor’s obligations with respect to Distributor Apps set forth in these Guidelines will apply to all Third Party Bundled Apps. Distributor may distribute Third Party Bundled Apps subject to the following additional terms: (a) Third Party Bundled Apps must not be targeted to minors (as determined by Google in its sole discretion). (b) If Google (i) receives or is otherwise aware of complaints or regulatory inquiries related to a particular Third Party Bundled App or class of applications or (ii) determines that a particular Third Party Bundled App or class of applications is illegal or encourages illegal activity, or is harmful, deceptive or annoying to users, Google may restrict Distributor from distributing the Distributor App bundled with such Third Party Bundled Apps or a class of applications. (c) Every Point of Contact for each Third Party Bundled App must clearly, conspicuously, accurately and consistently identify the applicable third party as the source of that application and the associated functionality.

 

8. Deactivation and Uninstallation. The uninstallation process for each Distributor App must be simple and easy for a typical End User to understand. Each Distributor App must provide End Users with the option to completely uninstall such application from the customary place for the applicable operating system (e.g. Add/Remove Programs control panel in Windows), except where a Distributor App is preloaded on a mobile phone or tablet by the Original Equipment Manufacturer prior to its initial sale to a consumer. Once a Distributor App is uninstalled, no process, functionality or design elements related to that application should remain. Once an End User disables a Distributor App, such application must not be re-enabled without the End User’s consent.

 

9. Legal. Distributor must ensure that any Distributor Apps and Third Party Bundled Apps comply with the Policies and the applicable provisions of these Guidelines.

 

10. Updates. Google will provide Distributor with 30 days prior written notice of any updates to these Guidelines.

  

 

Exhibit G

 

Part One

 

[***] 

 

 

 

Exhibit G Part Two

 

Mobile Browser Guidelines

 

1. Definitions:

 

1.1. Approved App Store: Any mobile-device or tablet-device application store approved by Google in writing for distribution of the Approved Distribution App.

 

1.2. Approved Distributor: Any mobile phone or tablet service provider or manufacturer approved in writing by Google for pre-loaded distribution of the Approved Distribution App.

 

1.3. Approved Distribution App: any Google Opera Browser that has been installed or updated from an Approved App Store or pre-loaded by an Approved Distributor.

 

2. Software Policies: All Approved Distribution Apps must be compliant with Google’s Software Principles (available at: https://www.google.com/about/company/software-principles.html, or any updated URL provided by Google from time to time) and Unwanted Software Policies (available at: https://www.google.com/about/company/unwanted-software-policy.html, or any updated URL provided by Google from time to time).

 

3. User Acquisition Policies:

 

3.1. A Google Opera Browser may only be distributed on an Approved App Store or through an Approved Distributor, each of which must be approved by Google in writing prior to launching distribution on such channel.

 

3.2. Approved Distribution App may only be distributed as a stand-alone application, and may never be bundled with other secondary applications, offers, and/or ads.

 

3.3. Approved Distribution App may not in any way deceive or confuse users in the process leading to installation. For example, Approved Distribution App may not directly or indirectly engage in or benefit from the following behavior:

 

3.3.1. Promotion via deceptive ads, websites, apps or other properties, including simulated system, service, or app notifications or alerts;

 

3.3.2. Promotion or install tactics which cause redirection to Approved App Store or the download of the Approved Distribution App without informed user action;

 

3.3.3. Unsolicited promotion via SMS services;

 

3.3.4. Exploitation of device security vulnerabilities in order to initiate download and/or installation of the Approved Distribution App;

 

3.3.5. Except through Approved Distributors, pre-installation of either the Approved Distribution App or a bookmark to the Approved Distribution App through any means including, but not limited to, OEM, carrier, store-front, or sign-up processes. The only acceptable install path, other than through Approved Distributors, is when a user installs the Approved Distribution App themselves from an Approved App Store; or

 

3.3.6. Promotion via incentives for installing, including, but not limited to offering money, in-game currencies, or discounts for products, apps, game rewards or services.

 

3.4. It is the Distributor’s responsibility to ensure that no ad network or affiliate uses such methods to direct users to pages that make the Approved Distribution App available for download.

 

4. Application Content Policies: These content policies apply to any content the Approved Distribution App displays or links to, including any ads it shows to users and any user-generated content it hosts or links to. Further, they apply to any content from the developer account displayed in any Approved App Store, including the developer name and the landing page of the listed developer website.

 

4.1. Sexually Explicit Material: Approved Distribution Apps that contain or promote pornography are prohibited; this includes sexually explicit or erotic content, icons, titles, or descriptions.

 

 

4.2. Child Sexual Abuse Imagery: Google has a zero-tolerance policy against child sexual abuse imagery. If we become aware of content with child sexual abuse imagery, we will report it to the appropriate authorities.

 

4.3. Violence and Bullying: Approved Distribution Apps should not contain graphic images or accounts of physical trauma, to include gratuitous portrayals of bodily fluids or waste. Approved Distribution Apps should not contain materials that threaten, harass or bully other users.

 

4.4. Hate Speech: Approved Distribution Apps must not contain content advocating against groups of people based on their race or ethnic origin, religion, disability, gender, age, nationality, veteran status, sexual orientation, or gender identity.

 

4.5. Sensitive Events: Approved Distribution Apps must not contain content which may be deemed as capitalizing on or lacking reasonable sensitivity towards a natural disaster, atrocity, conflict, death, or other tragic event.

 

4.6. Impersonation or Deceptive Behavior: Don't pretend to be someone else, and don't represent that your Approved Distribution App is authorized by or produced by another company or organization if that is not the case. Approved Distribution Apps must provide accurate disclosure of their functionality and should perform as reasonably expected by the user.

 

4.6.1. Approved Distribution Apps or the ads they contain must not mimic functionality or warnings from the operating system or other apps, including without limitation having any app-level or OS-level notification functionality that is false or misleading.

 

4.6.2. Approved Distribution Apps must not contain false or misleading information or claims in any content, title, icon, description, or screenshots, including without limitation in any app-level or OS-level notifications.

 

4.6.3. Approved Distribution Apps must not divert users or provide links to any other site that mimics or passes itself off as another app or service.

 

4.6.4. Approved Distribution Apps must not have names or icons that appear confusingly similar to another product, app, or service, or to apps supplied with the device (such as Camera, Gallery or Messaging).

 

4.7. Intellectual Property: Approved Distribution Apps must not infringe on the intellectual property rights of others, (including patent, trademark, trade secret, copyright, and other proprietary rights), or encourage or induce infringement of intellectual property rights. In addition:

 

4.7.1. Approved Distribution App may not include the ability to download music or video content from third party sources (e.g. YouTube, SoundCloud, Vimeo, etc) without explicit authorization from those sources;

 

4.7.2. Approved Distribution App may not use any form of Google branding without explicit approval from Google.

 

4.8. Personal and Confidential Information: Approved Distribution Apps may not collect, publish or disclose user’s private and confidential information in ways the user has not consented to. This includes, but is not limited to, credit card numbers, government identification numbers, driver's and other license numbers, non-public contacts, or any other information that is not publicly accessible.

 

4.9. Illegal Activities: Approved Distribution Apps must not engage in or promote unlawful activities.

 

4.10. Gambling: We don’t allow content or services that facilitate online gambling, including but not limited to, online casinos, sports betting and lotteries, or games of skill that offer prizes of cash or other value.

 

4.11. Dangerous Products: Approved Distribution Apps must not contain, promote, or encourage content that harms, interferes with the operation of, or accesses in an unauthorized manner, networks, servers, application programming interfaces (APIs), or other infrastructure. For example:

 

4.11.1. Don't transmit or link to viruses, worms, defects, Trojan horses, malware, or any other items that may introduce or exploit security vulnerabilities to or harm user devices, apps, or personal data.

 

4.11.2. Apps that collect information (such as the user's location or behavior) without the user's knowledge (spyware) are prohibited.

 

 

4.11.3. Malicious scripts and password phishing scams are also prohibited, as are apps that cause users to unknowingly download or install apps from any source.

 

4.11.4. Approved Distribution App may not modify, replace or update its own APK binary code using any method other than the Applicable App Store’s update mechanism.

 

4.12. System Interference:

 

4.12.1. Approved Distribution App (or its components or derivative elements) must not make changes to the user’s device outside of the app unless such change is clearly and prominently presented to the user and the user explicitly consents. This includes behavior such as replacing or reordering the default presentation of apps, widgets, or the settings on the device. If an app makes such changes with the user’s knowledge and consent, it must be clear to the user which app has made the change and the user must be able to reverse the change easily, or by uninstalling the app altogether.

 

4.12.2. Approved Distribution App may not request or otherwise obtain admin-access to the End User’s device.

 

4.12.3. Approved Distribution App must not introduce any security vulnerabilities, and must be updated as needed to maintain adequate security.

 

4.12.4. Approved Distribution Apps and their ads must not modify or add browser settings or bookmarks, add homescreen shortcuts, or icons on the user’s device as a service to third parties or for advertising purposes.

 

4.12.5. Approved Distribution Apps and their ads must not display advertisements through system level notifications on the user’s device, unless the notifications derive from an integral feature provided by the installed app (e.g., an airline app that notifies users of special deals, or a game that notifies users of in-game promotions).

 

4.12.6. Approved Distribution Apps must not encourage, incentivize, or mislead users into removing or disabling third-party apps.

 

5. Approved Distribution App Prohibited behavior. An Approved Distribution App must not engage in illegal, misleading, deceptive, harmful, harassing, or otherwise annoying practices, or practices that tend to degrade the speed or overall quality of an end user’s experience (in each case, as determined by Google in its sole discretion). For example, an Approved Distribution App may not do any of the following:

 

5.1. Change the appearance and/or content of websites that are not owned by the publisher of the Approved Distribution App (unless otherwise approved by Google)

 

5.2. Create unpredictable network usage that has an adverse impact on a user's service charges or an authorized carrier's network. Apps also may not knowingly violate an authorized carrier's terms of service for allowed usage or any Google terms of service.

 

5.3. Send SMS, email, or other messages on behalf of the user without providing the user with the ability to confirm content and intended recipient.

 

5.4. When posted in an Approved App Store, Approved Distribution App should not:

 

5.4.1. Post repetitive content

 

5.4.2. Use irrelevant, misleading, or excessive keywords in apps descriptions, titles, or metadata

 

5.4.3. Attempt to change the placement of any Product in the Approved App Store, or manipulate any product ratings or reviews by unauthorized means such as fraudulent installs, paid or fake reviews or ratings, or by offering incentives to rate products

 

5.5. Approved Distribution App may not facilitate the distribution of software applications and games for use on devices outside of the Approved App Store.

 

6. Ad Policy: The policy below covers all ads that are served in the Approved Distribution App.

 

6.1. Ads appearing within the Approved Distribution App are considered part of the Approved Distribution App for purposes of content review and compliance with these Terms. Therefore, all of the policies referenced above also apply to ads served in the Approved Distribution App.

 

 

6.2. Ads Context: Ads must not simulate or impersonate the user interface of any app, or notification and warning elements of an operating system. It must be clear to the user which app each ad is associated with or implemented in.

 

6.3. Ad Walls and Interstitial Ads: Interstitial ads may only be displayed inside of the app they came with. Forcing the user to click on ads or submit personal information for advertising purposes in order to fully use an app is prohibited. A prominent and accessible target must be made available to users in any interstitial ad so they may dismiss the ad without penalty or inadvertent click-through.

 

6.4. Interfering with Apps and Third-party Ads: Ads associated with your app must not interfere with other apps or their ads.

 

7. Application Removal: Approved Distribution App must be easily removable and/or uninstallable through the customary removal method of the End User’s operating system.

 

 

Exhibit 10.5

 

Specific terms in this exhibit have been redacted because confidential treatment for those terms has been requested. The redacted material has been separately filed with the Securities and Exchange Commission, and the terms have been marked at the appropriate place with three asterisks [***].

 

Partner Agreement

 

This Partner Agreement (the “Agreement”) is entered into as of October 1, 2012 (the “Effective Date”) by and between

 

Opera Software ASA, a company organized and existing under the laws of Norway with its principal place of business at Gjerdrums vei 19, 0484 Oslo, Norway (“Opera”), and

 

YANDEX LLC, a company organized and existing under the laws of the Russian Federation with its principal place of business 16 Lva Tolstogo st., Moscow, 119021, Russia (“Yandex”), and Yandex N.V., a company incorporated under the laws of the Netherlands with address at Laan Copes van Cattenburch 52, The Hague 2585 GB, Netherlands (“Yandex N.V.”).

 

Yandex and Opera may hereinafter be collectively referred to as the “Parties” and individually as a “Party”.

 

WHEREAS, Opera is a developer of Browser technology and has developed a free standard version of the Opera Browser for desktop, Opera Mini™ and Opera Mobile™ browsers for mobile devices;

 

WHEREAS, Yandex is a provider of search and other services available at www.vandex.ru and desires to enter into this Partner Agreement to incorporate selected Yandex services into the Opera browsers and grant from Opera certain non-exclusive rights to use the Opera Product in exchange for financial compensation from Yandex;

 

WHEREAS, the Parties have previously entered into Opera Partner Agreement dated July 13, 2010 as amended by Addendum No. 1 dated February 14, 2012 and Addendum No. 2 dated February 28, 2012, Addendum No. 3 dated April 1, 2012, and Addendum No. 4 dated June 6, 2012 (the “Previous Agreement”), which shall be replaced by this Agreement as further described hereunder;

 

NOW, THEREFORE, in consideration of their mutual promises and covenants, the Parties agree as follows:

 

1

DEFINITIONS

 

For the purposes of this Agreement, the following terms will have the indicated meanings:

 

1.1

“Opera Products” means Opera Desktop Browser, Opera Mini Browser, Opera Mobile Browser, Opera Desktop Next Browser, Opera Mini Next Browser, Opera Mobile Next Browser Customized Opera Desktop Browser, and/or Customized Opera Mini Browser, and or Customized Opera Mobile Browser as the context implies.

 

 

1.1.1

“Opera Desktop Browser” means any standard version of the Opera desktop web browser for Windows, MacOS and/or Linux in the Russian, English or other local language.

 

1.1.2

“Opera Mini Browser” means a version of the standard Opera Mini web browser in the Russian, English or other local language.

 

1.1.3

“Opera Mobile Browser” means a version of the standard Opera Mobile web browser in the Russian, English or other local language.

 

1.1.4

“Opera Desktop Next Browser” means a pre-release (alpha, beta, etc.) version of the Opera Desktop Browser in the Russian, English or other local language under the Opera name.

 

1.1.5

“Opera Mini Next Browser” means a pre-release (alpha, beta, etc.) version of the Opera Mini Browserin the Russian, English or other local language under the Opera name.

 

1.1.6

“Opera Mobile Next Browser” means a pre-release (alpha, beta, etc.) version of the Opera Mobile Browser in the Russian, English or other local language under the Opera name.

 

1.1.7

“Customized Opera Desktop Browser” means a customized version of the Opera Desktop Browser to be distributed by Yandex under this Agreement and by third party distributors of Yandex if Opera provides its prior written approval to distribution such distributors.

 

1.1.8

“Customized Opera Mini Browser” means a customized version of the Opera Mini Browser to be distributed by Yandex under this Agreement and by third party distributors of Yandex if Opera provides its prior written approval to distribution by such distributors.

 

1.1.9

“Customized Opera Mobile Browser” means a customized version of the Opera Mobile Browser version number 12.x (and future versions if agreed by Opera in writing) to be distributed by Yandex under this Agreement and by third party distributors of Yandex if Opera provides its prior written approval to distribution by such distributors.

 

1.2

“Yandex Product” means the Internet search service of Yandex available at www.yandcx.ru, www.yandex.com.tr and other Yandex’s websites.

 

1.3

“Referral Traffic” means the users of the Opera Products that access the Yandex Product through referral Links in the Opera Products.

 

1.4

“Links” means the agreed and trackable bookmarks, search boxes and any other links that allow users of the Opera Product to access the Yandex Product.

 

1.4.1

“Yandex Search Box” means a search box Link allowing users to form and submit a search query to the Yandex Product.

 

 

1.4.2

“Error Page Search Box” means a Yandex Search Box shown to users when an URL error occurs in the Opera Desktop Browser.

 

1.4.3

“Yandex Speed Dial Bookmark” means a trackable bookmark Link that allows users to directly access a Yandex’s website (www.yandex.ru or other Yandex’s websites).

 

1.5

“User Session” means click-throughs, “next” queries, and re-write or refinement search queries (i.e., an end user entering a query into the search box located on a results page on the Yandex Site (Yandex Product) generated in response to a click-through or “next” query) conducted during the same user session.

 

1.6

“Gross Revenue” means the total Yandex.Direct (pay per click search advertising system) revenue generated and calculated by Yandex through Referral Traffic during a User Session.

 

1.7

“Revenue” means Gross Revenue that has been reduced by the Russian VAT as well as the lesser of (i) any discounts and agents’ and commissioners’ remunerations, or (ii) 18,5% (eighteen and a half percent) of Gross Revenue.

 

1.8

“Territory” means [***].

 

1.9

“Rest of World” or “ROW” means the rest of the world excluding the Territory.

 

1.10

“Embed,” “Embedded” or “Embedding” means to pre-install the relevant Opera Product on a Device, subject to and in accordance with the procedure described in Appendix A.

 

1.11

“Device” means any device approved by Opera in writing (whether before or after the Effective Date) for Embedding an Opera Product.

 

1.12

“Smart Page” means a dynamic content page in the Opera Mini Browser that can be the default or secondary tab which is shown when an end user opens a new tab and/or starts the browser.

 

2

YANDEX PRODUCT IMPLEMENTATIONS

 

2.1

Opera shall distribute the Yandex Product by integrating it into Opera Products as described in the following implementations:

 

2.1.1

Implementation in the Opera Desktop Browser.

 

(i)

Subject to section 2.1.1(ii) below, the Opera Desktop Browser distributed in the Territory from www.opera.com and other affiliated websites controlled by Opera in the Territory in the Russian, English or other local language of the Territory, will include the following Yandex integrations:

 

(a)

[***]

 

(b)

[***]

 

 

(c)

[***]

 

(d)

[***]

 

(ii)

During the time period from 1 August 2013 to 1 August 2014, Opera will only be required to include the implementations specified in 2.1.1(a) and 2.1.1(d) in Opera Desktop Browsers distributed in the Russian Federation. The Parties shall enter into good faith negotiations concerning, and shall use their commercially reasonable efforts to reach agreement (before 1 August 2013) on, alternative implementations or integrations in the Opera Desktop Browser to be made by Opera to avoid a decrease in traffic to Yandex Product during this time period.

 

(iii)

In the Opera Desktop Browser distributed in the Rest of World, Opera shall be entitled to implement any of the Yandex integrations specified in 2.1.1(i)(a)-(d).

 

(iv)

Opera will use commercially reasonable efforts to include similar integrations as referred to in this Section 2.1.1 in Opera Desktop Next Browsers.

 

2.1.2

Implementation in the Opera Mini Browser.

 

(i)

Subject to section 2.1.2(iv) below, the Opera Mini Browser distributed in Territory from www.opera.com and other affiliated websites controlled by Opera in the Territory in the Russian, English or other local language of the Territory will include the following Yandex integrations:

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

(d)

[***]

 

(ii)

In the Opera Mini Browser distributed in the Rest of World, Opera shall be entitled to implement any of the Yandex integrations specified in 2.1.2(i)(a)-(d).

 

(iii)

Opera will use commercially reasonable efforts to include similar integrations as referred to in this Section 2.1.2 in Opera Mini Next Browsers.

 

(iv)

In versions of the Opera Mini Browser customized for or delivered on behalf of or to Opera’s third party customers and partners pursuant to an agreement with such customer or partner, Opera shall not be required to include the implementations specified in this Section 2.1.2 in the event it is prevented from doing so according to written agreement with such customer, partner, or other third party, provided that (i) such an agreement does not provide for a possibility for Opera to obtain a waiver of terms and conditions that prevent it from doing so or (ii) such agreement does provide for a possibility of such a waiver and a request for such waiver has been denied.

 

 

2.1.3

Implementation in Opera Mobile Browser.

 

(i)

Subject to section 2.1.3(iv) below in the Opera Mobile Browser distributed in the Territory, Opera shall use its commercially reasonable efforts to make available from www.opera.com and other affiliated websites controlled by Opera in the Territory in the Russian, English or other local language of the Territory, the following Yandex integrations:

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

(ii)

In the Opera Mini Browser distributed in the Rest of World, Opera shall be entitled to implement any of the Yandex integrations specified in 2.1.3(i)(a)-(c).

 

(iii)

Opera will use commercially reasonable efforts to include similar integrations as referred to in this Section 2.1.3 in Opera Mobile Next Browsers.

 

(iv)

In versions of the Opera Mobile Browser customized for or delivered on behalf of Opera’s third party customers and partners pursuant to an agreement with such customer, partner or another third party, Opera shall not be required to include the implementations specified in this Section 2.1.3 in the event it is prevented from doing so according to the written agreement with such customer, partner or another third party, provided that (i) such an agreement does not provide for a possibility for Opera to obtain a waiver of terms and conditions that prevent it from doing so or (ii) such agreement does provide for a possibility of such a waiver and a request for such waiver has been denied.

 

2.1.4

Implementation in the Customized Opera Desktop Browser.

 

Opera shall prepare and deliver to Yandex (unless it has already been prepared and delivered under the Previous Agreement) a Customized Opera Desktop Browser to be distributed by Yandex in the Territory. Customized Opera Desktop Browser shall include the following customizations and integrations:

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

 

Except in the case of termination due to material breach of the Agreement by Yandex, during the Initial Term and any Additional Terms of this Agreement and 12 (twelve) months thereafter, Opera shall not: [***]

 

2.1.5

Implementation in the Customized Opera Mini Browser

 

Opera will prepare and deliver to Yandex (unless it has already been prepared and delivered under the Previous Agreement) a Customized Opera Mini Browser for all mobile platforms, where the agreed customizations are possible to be distributed by Yandex in the Territory. Customized Opera Mini Browser shall include the following customizations and integrations:

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

(d)

[***]

 

(e)

[***]

 

Except in the case of termination due to material breach of the Agreement by Yandex, during the Initial Term and any Additional Terms of this Agreement and 12 (twelve) months thereafter, Opera shall not: [***]

 

Opera shall provide Yandex with custom download links for the versions of Customized Opera Mini Browser for platforms for which Opera distributes the Customized Opera Mini Browser.

 

Opera reserves the right to control the remaining speed dial bookmarks on the front page of the Customized Opera Mini Browser for the purpose of performing agreements with its partners effective in the Territory.

 

2.1.6

Implementation in the Customized Opera Mobile Browser

 

Opera will prepare and deliver to Yandex (unless it has already been prepared and delivered under the Previous Agreement) a Customized Opera Mobile Browser for all mobile platforms where the agreed customizations are possible to be distributed by Yandex in the Territory. Customized Opera Mobile Browser shall include the following customizations and integrations:

 

(a)

[***]

 

(b)

[***]

 

(c)

[***]

 

(d)

[***]

 

 

Except in the case of termination due to material breach of the Agreement by Yandex, during the Initial Term and any Additional Terms of this Agreement and 12 (twelve) months thereafter, Opera shall not: [***]

 

Opera shall provide Yandex with custom download links for the versions of Customized Opera Mobile Browser for platforms for which Opera distributes the Customized Opera Mobile Browser.

 

Opera reserves the right to control the remaining speed dial bookmarks on the front page of the Customized Opera Mobile Browser for the purpose of performing agreements with its partners effective in the Territory.

 

2.2

License. During the Initial Term and any Additional Terms of this Agreement, Opera grants to Yandex a limited, non-exclusive and right and license effective in the Territory to do the following:

 

2.2.1

copy, reproduce, display, distribute, make publicly available for download by users on any Yandex’s website the Customized Opera Mini Browser, Customized Opera Mobile Browser and Customized Desktop Browser, provided that Yandex shall always use the most recent versions of the Opera Products it has received from Opera;

 

2.2.2

otherwise provide Opera Products to the public subject to Opera’s written consent on a case-by-case basis (email confirmation from Opera’s SVP of Mobile Business Development or someone allocated by him is sufficient), provided that such consent may be withdrawn by Opera by email at any time, and provided that Yandex shall always use the most recent versions of the Opera Products it has received from Opera;

 

2.2.3

Embed, or allow a third party under obligations no less strict than those provided in this Agreement to Embed, Opera Products on Devices and manufacture, market and distribute such Devices to end users subject to the terms and conditions of Appendix A; for the avoidance of doubt, Yandex may grant a sublicense to a third party to Embed the Opera Products, such sublicense to be no less strict than the license provided to Yandex under this Agreement, including its Appendix A.

 

2.3

Yandex shall provide Opera by e-mail or other method using an Internet connection with the following materials:

 

(a)

tracking URLs for the Yandex Search Box, Error Page Search Box and Yandex Speed Dial Bookmark implementations;

 

(b)

trademark or style guidelines (if any) and logos;

 

2.4

Opera acknowledges that all materials mentioned in Section 2.3 were provided by Yandex to Opera before the Effective Date. Yandex agrees to use its commercially reasonable efforts to provide updates to such materials as required and also on Opera’s reasonable request when available.

 

 

2.5

Nothing in this Agreement shall be construed as preventing end users from customizing their own browsers and browser settings or as requiring Opera to override any settings the end user has previously chosen.

 

2.6

If Yandex or a Yandex partner through any automated process, toolbar, extension, other software or any other means would replace any search functionality in any of Opera Products, Yandex shall guarantee that all queries referred to Yandex from the Opera Products shall continue to be counted as Referral Traffic. Notwithstanding the above, if Yandex or a Yandex partner through any automated process, toolbar, extension, other software or any other means has replaced any search functionality in any of Opera Products after any other search provider and/or its partner has replaced the initial search settings set as default by Opera in the Opera Products, then Yandex may, at its own discretion, not count all queries referred to Yandex from such Opera Products towards Referral Traffic. For the avoidance of doubt, if an end user manually changes the search functionality of an Opera Product through the means available in such Opera Product menus by choosing a different search provider, then all queries referred to Yandex from such Opera Product shall be counted as Referral Traffic.

 

3

MARKETING

 

3.1

The Parties may issue simultaneous and mutually agreed upon press releases announcing the integration of the Yandex Product in the Opera Products. The Parties shall coordinate the timing of such releases to the extent practicable. Neither Party shall make any publicity on, press release of or reference to this Agreement, the other Party or the cooperation between the Parties without the prior written approval of the other Party.

 

4

FEES AND PAYMENT

 

4.1

In considerations of Opera’s services provided to Yandex and any licenses granted by Opera to Yandex under Section 2, Yandex shall pay Opera [***] of the Revenue in any calendar quarter.

 

4.2

Any amounts payable by Yandex hereunder shall be paid within 30 (thirty) days of the presentation of invoice by Opera.

 

4.3

Yandex shall, within 5 (five) business days after the end of each quarter (the report period), submit to Opera a report in a reasonable format detailing the Referral Traffic and the calculation of Revenue for such quarter. Yandex shall also provide Opera with an Act of Acceptance substantially in the form provided in Appendix B within 5 (five) business days after the end of each report period. Opera shall, within 5 (five) days from the receipt of the Act of Acceptance, con 伍 m it by signing and returning the Act of Acceptance to Yandex, and issue the invoices. Opera shall issue separate invoices for (i) Revenue generated by Referral Traffic in the Opera Desktop Browser, the Opera Desktop Next Browser and the Customized Opera Desktop Browser and (ii) Revenue generated by Referral Traffic in the Opera Mini Browser, the Opera Mobile Browser, the Opera Mini Next Browser, the Opera Mobile Next Browser, the Customized Opera Mini Browser, and the Customized Opera Mobile Browser.

 

 

4.4

All payments hereunder shall be calculated and made in US Dollars. If the Revenue was calculated in a different currency, then its amount for the report period shall be specified in US Dollars subject to the exchange rate set by a central bank or a similar authority of the respective country (e.g. the Bank of Russia, the Central Bank of the Republic of Turkey, etc.) for the date of the last day of the report period.

 

4.5

All amounts payable under this Agreement are exclusive of customs, taxes, duties or excises in any form, all of which shall be borne by the Party which is a tax resident of the country where such taxes, duties etc. apply. Russian VAT at the current applicable rate (at the Effective Date — 18% (eighteen percent)) shall be calculated above the amounts payable by Yandex hereunder, shall be stipulated in Opera’s invoices and shall be paid by Yandex directly to the budget of the Russian Federation. Opera shall, before issuing the first invoice in each calendar year, but not more often than once during any applicable annual period hereunder, submit to Yandex an official apostilled certificate as evidence that Opera is a tax resident of Norway. In case Opera fails to supply the aforementioned certificate within 30 (thirty) days of issuing the applicable invoice, Yandex shall promptly pay outstanding Opera invoices but shall deduct and withhold the sum of the Russian non-resident income tax from the amount of payment and pay to the budget of the Russian Federation the relevant taxes,.

 

4.6

Payments by Yandex that are more than 30 (thirty) days overdue will be subject to a late charge equal to 1 (one) percent per month or, if less, the maximum amount allowed by applicable law, on the overdue balance.

 

4.7

Payment information:

 

Payments shall be made via wire transfer to Opera’s following account:

 

[***]

 

5

INTELLECTUAL PROPERTY RIGHTS

 

5.1

Opera and its suppliers retain sole and exclusive right, title and interest to the Opera Product and the intellectual property rights (including without limitation, all patent rights, design rights, copyrights, trademark rights and trade secrets) embodied therein.

 

5.2

Subject to the terms and conditions of this Agreement and solely for the purpose of enabling Yandex to exercise its other rights hereunder, Opera hereby grants to Yandex a non-exclusive, worldwide, royalty-free, revocable permission to use the trademarks specified in the Opera Software Trademark Usage Guidelines found at http://www.opera.com/portal/contract/trademark/, in accordance with said Guidelines as updated by Opera from time to time, solely in connection with the marketing and promotion of the Opera Products. The use of the trademarks hereunder will not vest in or assign to Yandex any right, title or interest in or to the trademarks. Yandex acknowledges that it shall acquire no proprietary rights whatsoever in and to Opera’s trademarks, which shall remain Opera’s sole and exclusive property for its unlimited exploitation and all use and acquired goodwill arising from such use of the trademarks shall inure to Opera’s sole benefit of Opera.

 

5.3

Yandex and its suppliers retain sole and exclusive right, title and interest to the Yandex Product and the intellectual property rights (including without limitation, all patent rights, design rights, copyrights, trademark rights and trade secrets) embodied therein.

 

 

5.4

Subject to the terms and conditions of this Agreement and solely for the purpose of enabling Opera to perform its obligations and exercise its other rights hereunder, Yandex hereby grants to Opera a non-exclusive, worldwide, royalty-free, revocable permission to use the trademarks specified in Yandex’s applicable Trademark Usage Guidelines, in accordance with said Guidelines as updated by Yandex from time to time, solely in connection with the marketing and promotion of the Yandex Product. The use of the trademarks hereunder will not vest in or assign to Opera any right, title or interest in or to the trademarks. Opera acknowledges that it shall acquire no proprietary rights whatsoever in and to Yandex’s trademarks, which shall remain Yandex’s sole and exclusive property for its unlimited exploitation and all use and acquired goodwill arising from such use of the trademarks shall inure to Yandex’s sole benefit of Yandex.

 

6

CONFIDENTIALITY

 

6.1

The Parties shall maintain in strictest confidence and shall not disclose to any third parties nor use for any purpose other than for the proper fulfillment of the express purpose of this Agreement any non-public information, including without limitation technical or commercial information related to this Agreement (“Confidential Information”) received from the other Party in whatever form without the permission of the disclosing Party. For purposes of this Agreement, any technical, commercial or other information of a confidential nature delivered by either Party to the other shall always be treated as Confidential Information, whether or not marked with a confidential designator. Neither Party shall duplicate, reverse engineer, disassemble or de-compile any software of the other Party. The Parties shall only disclose the Confidential Information to authorized employees and shall take appropriate steps by instruction, agreement or otherwise to prevent unauthorized disclosure by the receiving Party’s officers, employees, agents or consultants.

 

6.2

Nothing in this Agreement shall prevent the receiving Party from disclosing any information which:

 

(a)

is or becomes public knowledge other than by a breach of this Agreement;

 

(b)

the receiving Party, its officers, employees, agents or consultants may develop independently of the disclosing Party or receive (before or after the Effective Date) without restriction from a third party (other than where the receiving party knew or had reason to believe that the third party disclosed the information in breach of confidence);

 

(c)

is required to be disclosed in accordance with applicable laws, regulations, court, judicial or other government order, provided that the receiving Party shall give the disclosing Party reasonable notice prior to such disclosure and shall comply with any applicable protective order.

 

 

7

WARRANTY DISCLAIMER

 

7.1

The Opera Products are delivered on a strictly «as is» basis. To the extent permitted by law, Opera and its suppliers disclaim all warranties regarding the Opera Products provided hereunder, either express or implied, statutory or otherwise, including without limitation warranties of functionality, fitness for a particular purpose or non-infringement.

 

7.2

Yandex acknowledges that the Opera Product is not designed or intended for use in (i) online control of aircraft, air traffic, aircraft navigation or aircraft communications; or (ii) in the design, construction, operation or maintenance of any nuclear facility. Opera and its suppliers disclaim any expressed or implied warranty of fitness for such uses.

 

8

INDEMNIFICATION

 

8.1

Opera will settle and/or defend at its own expense and indemnify Yandex against any cost, loss or damage arising out of any claim, demand, suit or action brought against Yandex to the extent that such claim, demand, suit or action is based on a claim that an Opera Product infringes upon any intellectual property right of any third party, provided that (i) Yandex promptly informs Opera in writing of any such claim, demand, action or suit, (ii) Opera is given control over the defense or settlement thereof and that Yandex co- operates in the defense or settlement. Yandex shall have the right to be represented by a counsel of its own choice at its own expense. Opera agrees that in negotiating any settlement pursuant to this clause, it shall act reasonably and shall consult with Yandex before agreeing any settlement. If a claim, demand, suit or action alleging infringement is brought or Opera believes one may be brought, Opera shall have the option at its expense to (x) modify the Opera Product to avoid the allegation of infringement, (y) obtain for Yandex at no cost to Yandex a license to continue the partnership set forth in this Agreement free of any liability or restriction or (z) if neither of the previous options are commercially feasible in Opera’s reasonable opinion, Opera may terminate this Agreement with respect to the relevant Opera Product immediately upon notice to Yandex. Opera shall have no responsibility for claims arising from (i) unauthorized modifications of the Opera Product by Yandex or any third party; (ii) combination or use of the Opera Product with Yandex or third party hardware or software not supplied by Opera if such claim would not have arisen but for such combinations or use; (iii) Opera’s modification of the Opera Product in compliance with written specifications provided by Yandex or any third party, (iv) use of other than the latest version of the Opera Product provided to Yandex by Opera if the use of the latest version would have avoided the infringement, or (v) use of the Opera Product outside the scope of the rights granted to Yandex in this Agreement. This Section 8.1 state the sole liability of Opera and the exclusive remedy of Yandex for infringement of third party intellectual property rights.

 

 

8.2

Yandex will settle and/or defend at its own expense and indemnify Opera against any cost, loss or damage arising out of any claim, demand, suit or action brought against Opera to the extent that such claim, demand, suit or action is based on a claim that the Yandex Product infringes upon any intellectual property right of any third party, provided that (i) Opera promptly informs Yandex in writing of any such claim, demand, action or suit, (ii) Yandex is given control over the defense or settlement thereof and that Opera co- operates in the defense or settlement. Opera shall have the right to be represented by a counsel of its own choice at its own expense. Yandex agrees that in negotiating any settlement pursuant to this clause, it shall act reasonably and shall consult with Opera before agreeing any settlement. If a claim, demand, suit or action alleging infringement is brought or Yandex believes one may be brought, Yandex shall have the option at its expense to (x) modify the Yandex Product to avoid the allegation of infringement, (y) obtain for Opera at no cost to Opera a license to continue the partnership set forth in this Agreement free of any liability or restriction or (z) if neither of the previous options are commercially feasible in Yandex’s reasonable opinion, Yandex may terminate this Agreement immediately upon notice to Opera. Yandex shall have no responsibility for claims arising from (i) modifications of the Yandex Product by Opera or any third party; (ii) combination or use of the Yandex Product with Opera or third party hardware or software not supplied by Yandex if such claim would not have arisen but for such combinations or use; (iii) Yandex’s modification of the Yandex Product in compliance with written specifications provided by Opera or any third party, (iv) use of other than the latest version of the Yandex Product provided to Opera by Yandex if the use of the latest version would have avoided the infringement, or (v) use of the Yandex Product outside the scope of the rights granted to Opera in this Agreement. This Section 8.2 state the sole liability of Yandex and the exclusive remedy of Opera for infringement of third party intellectual property rights.

 

9

LIMITATION OF LIABILITY

 

9.1

Neither Party shall be liable to the other Party in contract, tort or otherwise, whatever the cause thereof, for any loss of profit, business or goodwill or any indirect cost damages or expense of any kind, howsoever arising under or in connection with this Agreement, except for injury to persons or attributable to breach of Section 6 (Confidentiality) or to intentional misconduct or gross negligence.

 

9.2

The total and maximum liability of either Party under any provision of this Agreement or any transaction contemplated by this Agreement shall in no event exceed an amount equal to the total amounts paid by Yandex under this Agreement or the Previous Agreement, whichever is greater. Notwithstanding the above, this limitation of liability shall not apply to damages attributable to breaches of Section 6 (Confidentiality) or to damages attributable to gross negligence or intentional misconduct.

 

9.3

In consideration of Opera entering into this Agreement and as a material inducement to Opera to execute this Agreement, Yandex N.V. guarantees to Opera and its successors and permitted transferees and assigns, the due and punctual payment by Yandex of all such amounts as Yandex is obliged to pay to Opera pursuant to a final award of the arbitral panel referred to in Section 13.6 but only if and to the extent that (i) a legal opinion from Opera’s legal counsel at a reputable Russian law firm confirms that the award granted in favor of Opera is unenforceable as a legal or procedural matter in Russia or that enforcing the award in Russia would be unreasonably burdensome for Opera; or (ii) a period of 12 (twelve) months after an award in Opera’s favor pursuant to Section 13.6 has elapsed, without Opera having been able to enforce such award in full and recover all amounts due to Opera pursuant to the award, and provided Opera has made good faith efforts to enforce such award against Yandex in Russia. In addition to the arbitral award, Opera shall be entitled to collect all costs and expenses (including legal fees) related to the enforcement of the arbitral award in Russia and collection in the Netherlands.

 

 

10

TERM AND TERMINATION

 

10.1

This Agreement shall commence on Effective Date and continue for a term of 5 (five) years (“Initial Term”) unless earlier terminated in accordance with the provisions set forth below.

 

10.2

This Agreement shall automatically renew for additional 2 (two) year periods (“Additional Terms”) unless either Party gives the other Party notice of non-renewal at least 30 (thirty) days before the expiration of the Initial Term or any Additional Term.

 

10.3

This Agreement may be terminated by either Party if the other Party fails to make any payment hereunder when due and such failure to pay continues unremedied for a period of 30 (thirty) days after being notified of such non-payment.

 

10.4

This Agreement may be terminated by either Party prior to the end of its term if the other Party is in material breach of any term or condition of this Agreement and such breach continues unremedied for a period of 30 (thirty) days after the Party in breach has been notified of such breach by the other Party.

 

10.5

This Agreement terminates automatically, with no further act or action of either Party, if a receiver is appointed for Yandex or Opera or its property related to this Agreement, Yandex or Opera makes an assignment for the benefit of its creditors, any proceedings are commenced by, for or against Yandex or Opera under any bankruptcy, insolvency or debtor’s relief law, or Yandex or Opera is liquidated or dissolved.

 

11

EFFECTS OF TERMINATION

 

11.1

Upon termination or expiration of this Agreement:

 

(a)

Opera will disable or remove the Yandex Product in/from the Opera Products in an agreed timeline that is reasonable to Opera.

 

(b)

Yandex shall de-install the Opera Product from the Yandex Product in an agreed timeline that is reasonable to Yandex.

 

(c)

each Party shall return all copies of any Confidential Information of the other Party that it has in its possession or control, and cause an officer to certify in writing to the other Party that it has done so;

 

(d)

each Party shall forthwith cease all use of all trademarks of the other Party and its suppliers, and will not thereafter use any mark which is confusingly similar to any trademark associated with any trademark of the other Party or its suppliers;

 

(e)

Yandex shall continue to pay Opera the amounts specified in Section 4 with respect to any Revenue occurring through the end of the 12 (twelve) month period following expiration or termination of this Agreement;

 

 

(f)

Yandex will promptly return to Opera all copies of all the software, including all Opera Products, provided to Yandex by Opera under this Agreement and/or the Previous Agreement.

 

11.2

Opera’s rights and Yandex’s obligations to pay Opera all amounts due hereunder, as well as Sections 5, 6, 7, 8, 9, 11, 12, and 13 shall survive termination of this Agreement. Except in the case of termination due to Yandex’s material breach of this Agreement, Opera’s obligations related to updating Opera Products in Sections 2.1.4, 2.1.5 and 2.1.6, and Appendix A, Section 8 shall survive termination or expiration of this Agreement to the extent specified in such provisions.

 

12

RECORDS AND AUDITS

 

12.1

Each Party agrees to keep accurate books of account and records in sufficient detail to properly determine that amounts payable to the other Party under this Agreement have been paid correctly.

 

12.2

Each Party shall keep such books and records for at least 2 (two) years following the end of the calendar quarter to which they pertain, and each Party agrees to make available such books and records for inspection during such period by a certified public auditor commissioned by the other Party for such purpose, solely for the purpose of verifying the correctness of the respective Party’s payments hereunder.

 

12.3

Inspections may be made no more than once in each calendar year at reasonable times mutually agreed upon by the parties upon 5 (five) business days’ notice to the respective Party. If an inspection reveals discrepancies additional inspections may be held during the following calendar year. The certified public accountant will execute a reasonable confidentiality agreement prior to commencing any such inspection.

 

12.4

The inspected Party will pay the inspecting Party the full amount of any underpayment revealed by the audit plus interest from the date such payment were due under the terms of Section 4. If such audit reveals an underpayment by the inspected Party of more than 5% (five percent), the inspected Party shall also promptly reimburse the inspecting Party for the auditor firm’s fees.

 

13

MISCELLANEOUS

 

13.1

Neither Party shall be responsible for any failure to perform due to unforeseen circumstances or to causes beyond that Party’s control, including but not limited to acts of God, war, riot, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation, facilities, fuel, energy, labor or materials. In the event of any such circumstances, the defaulting Party shall be excused for a period equal to the time of the delay caused thereby.

 

13.2

This Agreement may not be assigned or transferred by either Party without the other party’s written consent, which shall not be unreasonably withheld.

 

13.3

If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force and effect. The Parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the provision held to be invalid. The waiver by either Party of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.

 

 

13.4

All notices hereunder shall be given by e-mail and confirmed by international air mail or internationally recognized express service mailed the same date, and will be deemed to be received on the first business day following receipt. The Parties contact details for the purposes of giving notices shall be as follows:

 

	Opera:	Yandex:
	Opera Software ASA	YANDEXLLC
	Gjerdrums vei 19	16 Lva Tolstogo St.
	0484 Oslo, Norway	119021 Moscow, Russia
	[***]	[***]

 

13.5

This Agreement, including the Appendices, constitutes the entire Agreement between the parties hereto, and supersedes all other agreements or arrangements between the parties in relation to the subject matter hereof. The Agreement cannot be modified, supplemented or rescinded except by a single document made in writing and signed by both Pa 如 s. For the avoidance of doubt, upon the execution of this Agreement by authorized representatives of both Opera and Yandex, the Previous Agreement shall terminate and be replaced by this Agreement, however, any payment due from Yandex to Opera under the Previous Agreement, which arose before the execution of this Agreement, shall survive.

 

 

13.6

This Agreement shall be governed by the state and federal laws of the State of California, U.S. (but not the law of conflicts) and the stipulations set forth herein to be construed in accordance with same. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate, will be resolved by final and binding arbitration in accordance with the JAMS International Arbitration Rules before a panel of three (3) arbitrators, each of whom will have specialized expertise in the field of computer technology selected from and administered by JAMS. In the event of a conflict between the JAMS International Arbitration Rules and the provisions of this Agreement, the provisions of this Agreement will control. The arbitration hearing will be held in Santa Clara County, California and will be conducted in the English language. Either Party shall have the right to discovery of evidence. The arbitrators shall supervise discovery and discovery matters shall be governed by the Federal Rules of Civil Procedure as applicable to civil actions in the United States District Court in San Francisco, California. The Parties agree that the arbitrators shall have the authority to issue interim orders for provisional relief, including, but not limited to, orders for injunctive relief, attachment or other provisional remedy, as necessary to protect either Party’s name, proprietary information, trade secrets, know-how or any other proprietary right. The Parties agree that any order of the arbitrator(s), including any orders for provisional relief, for any injunctive or other preliminary relief, shall be enforceable in any court of competent jurisdiction. The award of the arbitrator will be binding on the Parties, and judgment on the award may be entered in any court of competent jurisdiction over the Party against which an award is entered or the location of such Party’s assets, and the Parties hereby irrevocably waive any objections to jurisdiction of such court based on any ground, including without limitation, improper venue or forum. In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing Party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. If the arbitrator(s) determine a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. Notwithstanding the foregoing, nothing in this Agreement will be deemed as preventing either Party from seeking relief (or any provisional remedy) from any court having jurisdiction over the Parties and the subject matter of the dispute as is necessary to protect such Party’s name, proprietary information, trade secrets, know-how, or any other intellectual property rights. Because both Parties to this Agreement have had the opportunity to negotiate individual provisions of this Agreement, the Parties agree that any arbitrator or court shall not construe any ambiguity that may exist in this Agreement against a Party on the basis of that Party having drafted the Agreement.

 

SCHEDULE OF APPENDICES:

 

APPENDIX A: PROCEDURES FOR EMBEDDING OPERA PRODUCTS ON DEVICES

 

APPENDIX B: ACT OF ACCEPTANCE TEMPLATE

 

***SIGNATURE PAGE TO FOLLOW***

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the Effective Date.

 

OPERA SOFTWARE ASA:			YANDEX LLC:
/s/ Lars Boilesen			/s/ Kiseler
Name:	Lars Boilesen		Name:	Kiseler
Title:	Chief Executive Officer		Title:	Business Developement Director
Date:	September 21, 2012		Date:	September 21, 2012
			YANDEX N.V.:
			/s/ Volozh Arkady
			Name:	Volozh Arkady
			Title:	Chief Executive Officer
			Date:	September 21, 2012

 

 

APPENDIX A

 

PROCEDURES FOR EMBEDDING OPERA PRODUCTS ON DEVICES

 

1.

Yandex or a third party authorized by Yandex shall be entitled to Embed Opera Products only on such Devices that are agreed in writing (e-mail from Opera’s SVP of Mobile Business Development or someone allocated by him is sufficient) on a case-by-case basis with Opera. Opera may provide or withhold its consent in its sole discretion. Opera’s consent may be withdrawn by email at any time, and such withdrawal shall become effective within forty-five days after receipt of the withdrawal e-mail.

 

2.

For the purpose of obtaining Opera’s consent to Embed an Opera Product on a Device, if requested by Opera, Yandex may, or may cause a third party to, send Device prototypes to Opera for Opera’s internal testing.

 

3.

Yandex shall, and shall require each third party authorized to Embed Opera Products on Devices to:

 

(i)          ensure that Opera Products at all times function optimally when Embedded on the Devices;

 

(ii)         Embed the latest version of the Opera Product provided to Yandex by Opera, as soon as reasonably possible, and

 

(iii)        in case where Opera Products to be Embedded are for Java, Android, Symbian platforms and other platforms where technically possible, ensure that the application icon is located no more than two clicks from the Device’s home screen (for example, all the programs on Android devices are by default located no more than 2 clicks away from the home screen (click on “Apps” and then on chosen App)).

 

Yandex agrees to enforce such provisions against third parties mentioned herein and shall be liable towards Opera if such third party violates the terms and conditions of this Agreement to the same extent as if Yandex had violated the terms and conditions itself, and shall inform Opera of any case of breach of the mentioned provisions by a third party in Yandex’s knowledge.

 

4.

If Yandex wishes to Embed or have a third party Embed the Opera Products on any Devices, Yandex shall, if it is reasonably possible and upon Opera’s request, provide estimated sales forecasts for such Devices on a quarterly basis to Opera in the form agreed by the Parties.

 

5.

Opera shall not be obligated to perform any professional services related to Embedding of Opera Products on Devices or to optimize or improve the performance of Opera Product on Devices.

 

6.

End users of the Opera Product Embedded on a Device shall always be subject to Opera’s end user license agreement included with the Opera Product.

 

 

7.

Neither Yandex nor any third party authorized by it may change the Opera Products in any way, including by (i) removing, altering or destroying at any time (including before, during or after the Embedding of the Opera Products) any proprietary, trademark or copyright markings or notices placed upon or contained with the Opera Product or (ii) adding, changing or deleting any Links, speed dials/bookmarks, IDs (including search referral IDs or other IDs), or search engines/means, search boxes at any time except for the cases when Yandex or a Yandex partner through any automated process, toolbar, extension, other software or any other means has replaced any search functionality in any of Opera Products after any other search provider and/or its partner has replaced the initial search settings set as default by Opera in the Opera Products.

 

8.

Unless Opera’s consent has been withdrawn pursuant to this Appendix A, Section 1, following any expiration or termination of the Agreement or the license provided in its Section 2.2.3, except in the case of material breach of the terms and conditions of this Agreement by Yandex or the third party in question, Yandex and any third parties authorized by Yandex to Embed the Opera Products on Devices shall have the right, which shall be effective for up to 1 (one) year after the termination of this Agreement, to continue to market, distribute and support any versions of Devices with Embedded Opera Products that were manufactured and Embedded with Opera Products prior to the effective expiration or termination date, and any such Devices that start shipping within 3 (three) months of the effective date of the expiration or termination. Furthermore, Yandex or the third party may provide minor releases or bug fix updates thereto for the remainder of the life cycle of such Devices, to the extent Opera has made such releases available to Yandex.

 

 

APPENDIX B

ACT OF ACCEPTANCE TEMPLATE

 

ACT OF ACCEPTANCE

to the Partner Agreement dated [ ] of [        ] 2012

 

Moscow

_____th of_____201__

 

Opera Software ASA, a company organized and existing under the laws of Norway with its principal place of business at Gjerdrums vei 19, 0484 Oslo, Norway (“Opera”) and YANDEX LLC, a company organized and existing under the laws of the Russian Federation with its principal place of business 16 Lva Tolstogo St., Moscow, 119021, Russia (“Yandex”), following the terms and conditions of the Partner Agreement dated [ ] of [      ] 2012 (the “Agreement”), have stated the following:

 

1.

The Parties herewith confirm that Opera has provided to Yandex services in full accordance with terms and conditions of Agreement for the period from ____th of _____ 201 _____ till _____th of _____ 201 (the “Report Period” .

 

2.

The Parties have no claims in respect of the abovementioned services.

 

3.

Revenue generated by Referral Traffic in the Opera Desktop Browser, the Opera Desktop Next Browser and the Customized Opera Desktop Browser during the Report Period amounts to [     ] ([     ]) US Dollars. Fee to be paid by Yandex to Opera according to Section 4.1 of the Agreement is_% (percent) of such Revenue which amounts to [     ] ([      ]) US Dollars. Russian VAT at the rate of 18% (eighteen percent) calculated above such fee amounts to the equivalent of [    ] ([      ]) US Dollars and is payable by Yandex directly to the budget of the Russian Federation.

 

4.

Revenue generated by Referral Traffic in the Opera Mini Browser, the Opera Mobile Browser, the Opera Mini Next Browser, the Opera Mobile Next Browser, the Customized Opera Mini Browser, and the Customized Opera Mobile Browser during the Report Period amounts to [      ] ([      ]) US Dollars. Fee to be paid by Yandex to Opera according to Section 4.1 of the Agreement is _ % (percent) of such Revenue which amounts to [     ] ([      ]) US Dollars. Russian VAT at the rate of 18% (eighteen percent) calculated above such fee amounts to the equivalent of [ ] ([      ]) US Dollars and is payable by Yandex directly to the budget of the Russian Federation.

 

5.

This Act of Acceptance is executed in English in two counterparts, both of equal legal force, one copy for each Party.

 

 

OPERA SOFTWARE ASA:			YANDEX LLC:
			/s/ Kiseler
Name:			Name:	Kiseler
Title:			Title:	Business Development Director
Date:			Date:	September 21, 2012
			YANDEX N.V.:
			/s/ Volozh Arkady
			Name:	Volozh Arkady
			Title:	Chief Executive Officer
			Date:	September 21, 2012

 

 

ДОПОЛНИТЕЛЬНОЕ СОГЛАШЕНИЕ № 1 ОТ «01» ОКТЯБРЯ 2012 г.   К СОГЛАШЕНИЮ О ПАРТНЕРСТВЕ ОТ «01» ОКТЯБРЯ 2012 г.   Настоя щее Дополнительное соглашение (далее -«Дополнительное соглашение» ) к Соглашению о партнерстве от « О 1 » октября 2012 r. (далее - «Договор») заключено « О 1 » октября 2012 r. («Дата вступления Дополнительного соглашения в силу»), между Опера Софтвэйр АСА, компанией, учрежденной и действующей согласно законодательству Норвегии, в лице Генерального директора Ларса Бойлесена, действующего на основании Устава, находя щейся по ад ресу : Гжердрамс вей 19 0484 Осло , Норвегия , («Опера»), и ООО «ЯНДЕКС», компанией, учрежденной и действующей согласно зако нодательству Российской Федерации, в л ице Руководителя направления дистрибуции Вечера Ю. Н., действующего на основании доверенности №57 от 18 июня 2012, находящейся по адресу Россия, 119021, Москва, ул . Льва Толстого , 16 («Яндекс») . и Яндекс Н.В., компанией, учрежденной и действую щей согласно зако нодательству Нидерландов, в лице Исполнительного директора Во ложа А. находящейся по адресу Лаан Ко упс ван Каттенбурr 52, Гаага 2585 ГБ, Голландия., действующего на основании Устава ( «Яндекс И.В.») . Яндек с, Яндекс Н.В. и Опера далее вместе именуются « Стороны », по отдельности « Сторона ».

ADDENDUM No. 1 DATED OCTOBER 01, 2012   TO THE PARTNER AGREEMENT DATED OCTOBER 01, 2012   This Addendum (hereinafter “Addendum”) to the Partner Agreement dated October 01, 2012 (hereinafter “Agreement”) is made as of October 01 , 2012 (“Addendum Effective Date”), by and between Opera Software ASA, a company organized and existing under the laws of Norway with its principal place of business at Gjerdrums vei 19 0484 Oslo, Norway, represented by its CEO Lars Boilesen acting on the basis of the Articles of Association (“Opera”); and YANDEX LLC, a a company organized and existing under the laws of the Russian Federation with its principal place of business 16 Lva Tolstogo st., Moscow, 119021, Russia, represented by its Head of Software Distribution Y.N.Vecher acting on the basis of the Power of Attorney No. 57 dated June 18, 2012 (“Yandex”); and Yandex N.V., a company incorporated under the laws of the Netherlands with address at Laan Copes van Cattenburch 52, The Hague 2585 GB, Netherlands, represented by its Executive Director Volozh A. acting on basis of the Articles of Association (“Yandex N.V.”). Yandex, Yandex N.V. and Opera may hereinafter be collectively referred to as the “Parties” and individually as a “Party”.

 

1.    С целью сделать отсылку к Договору в документах более удобной, Стороны настоящим пришли к соглашению присвоить Договору номер DS-0965-10/12.   2.    Настоящее Допо л нитель ное соглашение вступает в силу в Дату вступления Допо лнитель ного соглашения в силу как указано выше.

1.    In order to make it more convenient to refer to the Agreement in documents , the Parties hereby agree to assign the number to the Agreement which shall be DS- 0965-10/12.   2.    This Addendum shall come into effect on the Addendum Effective Date as indicated above.

 

 

3.    Все положения и условия Договора и любого и каждого При ложе ния к нему остаются неизменными .   4.    Настоящее Дополнитель ное соглашение составлено на русском и английском языках в двух экзем п ля рах , имеющих одинаковую юрид ическую силу, по одному для каждой из Сторон. В случае любых противоречий между текстами Допо лн итель ного соглашения на русском и английском языках, текст Дополнительного соглашения на английском языке будет иметь преимущественную силу .

3.    All terms and conditions of the Agreement and any and all Appendices thereto shall remain unamended.   4.    This Addendum is executed in in Russian and English in two copies of equal legal force, one copy for each of the Parties. In case of any discrepancies between the Russian and English text of this Addendum, the English text of this Addendum shall prevail.

 

Opera Software ASA		YANDEX LLC
/s/ Lars Boilesen		/s/ Y.N. Vecher
Lars Boilesen		Y.N. Vecher
Yandex N.V.
/s/ Arkady Volozh
Arkady Volozh

 

 

SF 3538

 

ADDENDUM NO 2

 

This Addendum (hereinafter “Addendum No 2”), including its exhibits, effective as of 02 June 2014 (“Addendum Effective Date”) shall serve to supplement and amend, the Partner Agreement entered into on October l, 2012 (“Agreement”), by and between:

 

Opera Software ASA, a Norwegian company with its principal place of business at Gjerdrums vei 19, No-0484 Oslo (“Opera”); and

 

Yandex LLC, a company organized under the laws of the Russian Federation with its principal place of business at 16 Lva Tolstogo st., Moscow, 119021, Russia (“Yandex”).

 

The parties are collectively referred to herein as “ Parties”, or each individually as a “ Party”.

 

WHEREAS, the Parties entered into the Agreement whereby Opera licensed to Yandex the right to distribute certain Opera Products to the public; and

 

WHEREAS, the Parties now wish to extent that license grant to permit Yandex to distribute the public versions of certain Opera Products via Yandex’s mobile applications store.

 

NOW, THEREFORE, the Parties mutually agree as follows:

 

1

DEFINITIONS

 

The following definitions are hereby added to Section 1 of the Agreement:

 

“1.13

“Yandex Mobile Store” means the digital storefront service currently available via store.yandex.com, store.yandex.ru as well as the Yandex.Store mobile application which are owned and operated by Yandex (or any company within the Yandex Group).

 

1.14

“Yandex Group” means Yandex, Yandex Inc. (USA), Yandex N.V. (Netherlands), Yandex Europe AG (Switzerland) or any other company under direct or indirect control by Yandex N.V. (Netherlands).

 

1.15

“Retail Store” means physical, non-online retail stores owned and/or operated by third parties in particular without limitation for selling or otherwise procuring or promoting devices to end users.”

 

2

ADDITIONAL DISTRIBUTION CHANNELS

 

2.1

Section 2.2 of the Agreement is hereby replaced in the part prior to the first colon by the following:

 

“2.2.

License. During the Initial Term and any Additional Terms of this Agreement, Opera grants to Yandex a limited, non-exclusive right and license effective in the Territory (unless otherwise expressly provided in this Agreement) to do the following:”

 

 

For the avoidance of doubt, Sections 2.2.1 to 2.2.3 shall continue in full force and effect.

 

2.2

The following Section 2.7 is hereby added to the Agreement:

 

“2.7.

Pursuant to Section 2.2.2 of the Agreement, Opera hereby consents to distribution of the following Opera Products via the Yandex Mobile Store: the Opera Mini Browser, Opera Mobile Browser, Opera Mini Next Browser, and Opera Mobile Next Browser. For the purposes of such distribution, Yandex shall have the respective company from the Yandex Group allow Opera to create an account within the Yandex Mobile Store from which the distribution may be controlled by Opera. As set forth in Section 2.2.2 of the Agreement, Opera’s consent may be withdrawn in whole or in part at any time by removing the respective Opera Products from the Yandex Mobile Store via its Yandex Mobile Store account and/ or by deactivating its Yandex Mobile Store account, and Yandex shall ensure that it always uses the most recent versions of the Opera Products it has received from Opera. Notwithstanding any provision of Section 2.2 to the contrary, Opera’s consent granted hereunder shall be considered effective worldwide.”

 

2.3

The following Section 2.2.4 is hereby added to the Agreement:

 

“2.2.4.

[***]”

 

3

APPLICABLE PROVISIONS

 

All provisions of the Agreement shall continue in full force and effect unless modified by this Addendum No 2. All terms defined in the Agreement shall have the same meaning when used herein as given therein. In case of conflict between the Agreement and Addendum No 2, the latter shall prevail.

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Addendum No 2:

 

OPERA SOFTWARE ASA:			YANDEX LLC:
/s/ Baard F. Andresen			/s/ Yury Vecker
Name:	Baard F. Andresen		Name:	Yury Vecker
Title:	VP Global Accounting		Title:	Head of Distribution
Date:	June 16, 2014		Date:	June 2, 2014

 

 

SF 4339

 

ADDENDUM NO 3

 

This Addendum (hereinafter “Addendum No 3”), including its exhibits, effective as of October I, 2014 (“Addendum Effective Date”) shall serve to supplement and amend, the Partner Agreement #DS-0965-10/12 entered into on October 1, 20 I 2 (“Agreement”), by and between:

 

Opera Software ASA, a Norwegian company with its principal place of business at Gjerdrums vei 19, No-0484 Oslo (“Opera”); and

 

Yandex LLC, a company organized under the laws of the Russian Federation with its principal place of business at 16 Lva Tolstogo st., Moscow, 119021, Russia (“Yandex”).

 

The parties are collectively referred to herein as “Parties”, or each individually as a “Party”.

 

WHEREAS, the Parties entered into the Agreement whereby Opera agreed to distribute the Yandex Product by integrating it into Opera Products, and Yandex agreed to pay Opera a share of its Revenue; and

 

WHEREAS, the Parties now wish amend the mechanics of conversion of the amounts of Revenue into US Dollars for the purposes of calculation of payments due to Opera under the Agreement;

 

NOW, THEREFORE, the Parties mutually agree as follows:

 

1

CONVERSION OF REVENUE

 

Section 4.4 is hereby removed from the Agreement in its entirety and replaced by the following:

 

“4.4.

All payments hereunder shall be calculated and made in US Dollars. If the Revenue was calculated in a different currency, then its amount for the report period shall be specified in US Dollars subject to the exchange rate set by a central bank or a similar authority of the respective country (e.g. the Central Bank of the Russian Federation, the Central Bank of the Republic of Turkey, etc.) for the date when Revenue was earned by Yandex.”

 

2

APPLICABLE PROVISIONS

 

All provisions of the Agreement shall continue in full force and effect unless modified by this Addendum No 3. All terms defined in the Agreement shall have the same meaning when used herein as given therein. In case of conflict between the Agreement and Addendum No 3, the latter shall prevail.

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Addendum No 3: Opera

 

OPERA SOFTWARE ASA:			YANDEX LLC:
/s/ Joakim Kasbohm			/s/ Yury Vecker
Name:	Joakim Kasbohm		Name:	Yury Vecker
Title:	Senior Director FP&A		Title:	Head of Distribution
Date:	October 10, 2014		Date:	October 10, 2014

 

 

SF 4834

 

ADDENDUM NO 4

 

This Addendum (hereinafter “Addendum No 4”), including its exhibits, effective as of June 30, 2015 (“Addendum Effective Date”) shall serve to supplement and amend, the Partner Agreement #DS-0965-10/12 entered into on October 1, 2012 (“Agreement”), by and between:

 

Opera Software ASA, a Norwegian company with its principal place of business at Gjerdrums vei 19, No-0484 Oslo (“Opera”); and

 

Yandex LLC, a company organized under the laws of the Russian Federation with its principal place of business at 16 Lva Tolstogo st., Moscow, 119021, Russia (“Yandex”)

 

The parties are collectively referred to herein as “Parties”, or each individually as a “Party”.

 

WHEREAS, the Parties entered into the Agreement whereby Opera agreed to distribute the Yandex Product by integrating it into Opera Products, and Yandex agreed to pay Opera a share of its Revenue; and

 

WHEREAS, the Parties now wish amend the terms of the Agreements regarding distribution of Yandex Product integrated into Opera Products;

 

NOW, THEREFORE, the Parties mutually agree as follows:

 

1

DEFINITIONS

 

Section 1.1 is hereby removed from the Agreement in its entirety and replaced by the following:

 

“1.1.        “Opera Products” means Opera Desktop Browser, Opera Mini Browser, Opera Mobile Browser, Opera Desktop Next Browser, Opera Mini Next Browser, Opera Mobile Next Browser Customized Opera Desktop Browser, Customized Opera Mini Browser, Customized Opera Mobile Browser, Opera Coast Browser and/or any Future Opera Product, as the context implies, including but not limited to any Third Party Customized Versions of said products.

 

Sections 1.1.1 through 1.1.3 are hereby removed from the Agreement in its entirety and replaced by the following:

 

“1.1.1.     “Opera Desktop Browser” means any standard version of the desktop web browser for Windows, MacOS and/or Linux in the Russian, English or other local language and named “Opera” as of the Effective Date. For the avoidance of doubt, the term “Opera Desktop Browser” would also include any standard version of Opera’s desktop web browser for Windows, MacOS and/or Linux in the Russian, English or other local language however re-named or re-branded, that replaces or is intended to replace the web browser described in the first sentence of this section 1.1.1.”

 

“1.1.2.     “Opera Mini Browser” means any standard version of the standard Opera Mini web browser in the Russian, English or other local language and named “Opera Mini” as of the Effective Date. For the avoidance of doubt, the term “Opera Mini Browser” would also include any standard version of the Opera Mini web browser however re-named or re-branded, that replaces or is intended to replace the web browser described in the first sentence of this section 1.1.2.”

 

 

“1.1.3.     “Opera Mobile Browser” means any standard version of the mobile web browser in the Russian, English or other local language and named “Opera Mobile” as of the Effective Date. For the avoidance of doubt, the term “Opera Mobile Browser” would also include any standard version of any mobile web browser, however re-named or re-branded, that replaces or is intended to replace the web browser described in the first sentence of this section 1.1.3.”

 

The following definitions are hereby added to the Section 1 of the Agreement and shall be read as follows:

 

“1.1.10.   “Opera Coast Browser” means the standard version of the standard Opera Coast web browser in the Russian, English or other local language named “Opera Coast” as of June 30, 2015. For the avoidance of doubt, the term “Opera Coast Browser” would also include any standard version of any mobile web browser however re-named or re-branded, that replaces or is intended to replace the web browser described in the first sentence of this section 1.1. l O.”

 

“1.1.11.   “Future Opera Product” means a version of any web browser for any desktop or mobile platform in the Russian, English or other local language developed, distributed or made available by Opera and/or its contractors in the Territory after June 30, 2015.”

 

“1.16.      “Third Party Customized Version” means a version of the respective Opera Product, as the case may be, customized for or delivered on behalf of or to Opera’s third party customers and partners pursuant to an agreement with such customer or partner. For avoidance of doubt nothing in this Agreement obliges Opera to include the Yandex Product in Third Party Customized Versions.

 

“1.17.      “Control” means the ability to direct the affairs of another person, whether by virtue of the ownership of shares, contract or otherwise, including but not limited to: (a) the legal power to direct or cause the direction of its general management and policies; or (b) the ability to appoint, directly or indirectly, the majority of its directors or its executive officers; or (c) the ability to exercise, directly or indirectly, a majority of the votes exercisable at a general meeting; or (d) the right to receive, directly or indirectly, a majority of the proceeds arising from any declaration of a dividend or any distribution arising in the course of winding up, whether solvent or insolvent, or any return of capital to shareholders or members; and the expressions “Controls” and “Controlled” shall be construed accordingly.

 

“1.18.      “Change of Control” means the occurrence of any of the following events: (a) a person who Controls any other person ceases to do so; and/or (b) a person who did not previously Control another person acquires Control of it.”

 

2

IMPLEMENTATION IN THE OPERA DESKTOP BROWSER

 

Section 2.1.1(i) is hereby removed from the Agreement in its entirety and replaced by the following:

 

“(i)

Subject to section 2.1.1(ii) below, the Opera Desktop Browser distributed in the Territory from websites controlled by Opera, and/or its contractors in the Territory in the Russian, English or other local language of the Territory, will include the following Yandex integrations:

 

 

a)

[***]

 

b)

[***]

 

c)

[***]

 

d)

[***]”

 

3

IMPLEMENTATION IN THE OPERA MINI BROWSER

 

Section 2.1.2(i) is hereby removed from the Agreement in its entirety and replaced by the following:

 

“(i)

Subject to section 2.1.2(iv) below, the Opera Mini Browser distributed in Territory from websites controlled by Opera and/or its contractors in the Territory in the Russian, English or other local language of the Territory will include the following Yandex integrations:

 

a)

[***]

 

b)

[***]

 

c)

[***]

 

d)

[***]

 

e)

[***]

 

f)

[***]”

 

4

IMPLEMENTATION IN THE OPERA MOBILE BROWSER

 

Section 2.1.3(i) is hereby removed from the Agreement in its entirety and replaced by the following:

 

“(i)

Subject to section 2.1.3(iv) below in the Opera Mobile Browser distributed in the Territory, Opera shall use its commercially reasonable efforts to make available from websites controlled by Opera and/or its contractors in the Territory in the Russian, English or other local language of the Territory, the following Yandex integrations:

 

a)

[***]

 

b)

[***]

 

c)

[***]

 

d)

[***]”

 

 

5

IMPLEMENTATION IN THE OPERA COAST BROWSER, OPERA DESKTOP NEXT BROWSER, OPERA MINI NEXT BROWSER AND OPERA MOBILE NEXT BROWSER

 

Section 2.1.7 is hereby added to the Agreement and shall be read as follows:

 

“Opera shall use commercially reasonable efforts to use the same or similar implementations of the Yandex Product as described in (i) Section 2.1.1 for the public versions of its Opera Coast Browser and Opera Desktop Next; (ii) Section 2.1.2 - for the public versions of Opera Mini Next; (iii) Section 2.1.3 - for the public version s of Opera Mobile Next. Notwithstanding the foregoing, Yandex acknowledges and understands that these Opera Products are experimental branches of Opera’s product development and such implementations cannot be guaranteed. Opera and Yandex shall work together in good faith to discuss bow to solve any negative impacts of such experiments in such Opera Products.”

 

6

IMPLEMENTATION IN THE FUTURE OPERA PRODUCTS

 

Section 2.1 .8 is hereby added to the Agreement and shall be read as follows:

 

“For each Future Opera Product, Opera shall use commercially reasonable effort to use the same or similar implementations of the Yandex Product as described in (i) Section 2.1.1 - for any Future Opera Product developed, distributed or made available for desktop devices; (ii) Sections 2.1.2 and 2.1.3 for any Future Opera Product developed, distributed or made available for mobile devices. Notwithstanding the foregoing, Yandex acknowledges and understands that Future Opera Products are subject to changes in Opera’s product development plans, and such implementations cannot be guaranteed. Opera and Yandex shall work together in good faith to discuss how to solve any negative impacts of such development in such Opera Products.”

 

7

RESTRICTIONS ON CHANGES THE OPERA PRODUCTS

 

Sections 2.8 and 2.9 are hereby added to the Agreement and shall be read as follows:

 

“2.8.      Opera shall not, without the prior written consent of Yandex, make any update, upgrade or other change in the Opera Desktop Browser, that materially changes its default design, user interface and/or functionality in a manner that adversely affects the number of search queries to the Yandex Product and/or other interactions with the Links made by users via the implementations made pursuant to Section 2.1.1.

 

2.9.        In respect of any Opera Products, Opera will not at any time during the Initial Term or any Additional Terms (and will not encourage any third party to, at any time during the Initial Term or any Additional Terms) uninstall, modify or reconfigure the Yandex Product or any Links integrated in the Opera Product or replace the Opera Product with a different Opera Product that does not include the Yandex Product or Links previously included therein.

 

8

RESTRICTIONS ON YANDEX MARKETING TOWARDS OPERA USERS

 

Section 2.10 is hereby added to the Agreement and shall be read as follows:

 

[***]

 

 

9

TERM OF THE AGREEMENT IN THE EVENT OF CHANGE OF CONTROL

 

Section 10.6 is hereby added to the Agreement and shall be read as follows:

 

“ln the event of any Change of Control of Opera or Yandex, respectively, the other Party shall have the right to extend the Initial Term or the then current Additional Term for an additional six month period, effective immediately upon written notice to the Party affected by the Change of Control, provided such other Party gives written notice within 14 days of the Change of Control becoming publically announced.”

 

10

APPENDIX C

 

Appendix C is hereby appended to the Agreement as set forth in Appendix C to this Addendum.

 

11

APPLICABLE PROVISIONS

 

All provisions of the Agreement shall continue in full force and effect unless modified by this Addendum No 4. All terms defined in the Agreement shall have the same meaning when used herein as given therein. In case of conflict between the Agreement and Addendum No 4, the latter shall prevail.

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Addendum No 4:

 

OPERA SOFTWARE ASA:			YANDEX LLC:
/s/ Joakim Kasbohm			/s/ Alexander Shulgin
Name:	Joakim Kasbohm		Name:	Alexander Shulgin
Title:	Senior Director FP&A		Title:	Chief Executive Officer
Date:	June 30, 2015		Date:	June 30, 2015

 

 

APPENDIX C

 

[***]

 

 

ADDENDUM NO 5

 

This Addendum (hereunder “Addendum No 5”), effective as of August 19, 2016 (“Addendum Effective Date”) shall serve to supplement and amend, the Partner Agreement #DS-0965-10/12 entered into on October 1, 2012 (“Agreement”), originally concluded by and between:

 

Opera Software ASA, a Norwegian company with its principal place of business at Gjerdrums vei 19, NO-0484 Oslo; and

 

Yandex LLC, a company organized antler the laws of the Russian Federation with its principal place of business at 16 Lva Tolstogo st., Moscow, 119021, Russia (“Yandex”).

 

Opera Software ASA and Yandex arc collectively referred to herein as “Original Parties”.

 

WHEREAS, the Original Parties entered into the Agreement whereby Opera Software ASA agreed to distribute the Yandex Product by integrating it into Opera Products, and Yandex agreed to pay Opera Software ASA a share of its Revenue;

 

WHEREAS, the Parties (as defined below) now wish to amend the terms of the Agreement in order to allow users that prefer to use Yandex to choose Yandex as their default search engine and to gain access to the Yandex website through speed dial like functionality, as well as for Opera products to more accurately remember user settings according to the user’s preferences;

 

WHEREAS Opera Software ASA has completed a total demerger of its business in accordance with Chapter 14 of the Norwegian Public Limited Liability Companies Act and as a result of such demerger, all assets rights and obligations, including all agreements related to desktop and mobile browsers have been transferred to and accepted by Opera Software AS (“Opera”), a wholly owned subsidiary of Opera Software ASA;

 

NOW THEREFORE in consideration of their mutual promises, the Parties hereby agree as follows:

 

Opera Software AS hereby confirms that it accepts all rights, obligations and liabilities of the Party “Opera” under the Agreement, and Yandex confirms its acknowledgment and consent to the same.

 

Yandex and Opera are collectively referred to herein as “Parties”, or each individually as a “Party”

 

The Parties further agree to the following amendments to the Agreement.

 

1.

TERM

 

Section 10.1 is hereby removed from the Agreement in its entirety and replaced by the following:

 

“10.1. This Agreement shall commence on Effective Date and continue until April I, 2020 (“Initial Term”) unless earlier terminated in accordance with the provisions set forth below.”

 

 

The Parties acknowledge and agree that Section 10.6 docs not apply to the currently contemplated acquisition of Opera by Golden Brick Capital Private Equity Fund I L.P.

 

2.

FEES AND PAYMENT

 

Section 4.1 is hereby removed from the Agreement in its entirety and replaced by the following:

 

“4.1	In consideration of Opera’s services provides to Yandex and any licenses granted by Opera to Yandex under Section 2. Yandex shall pay Opera the following percentages of Revenue each calendar quarter:

 

4.1.1       Desktop Revenue

 

The percentage of Revenue paid to Opera each calendar quarter for Desktop products as specified in the table below shall be linked to the quarterly total query volume in Russia against a baseline threshold. For purposes of this Agreement, the baseline threshold for the specified periods below shall be [***] queries per quarter (“Desktop Threshold”). The Desktop Threshold will be calculated based on queries in Russia only (not any other countries in the Territory), excluding any fraudulent and robotic traffic by standard Yandex filtering mechanics. For the avoidance of doubt, if the Desktop Threshold is met the percentages below will apply to all countries in the Territory. Yandex shall provide Opera with the relevant reporting tools to monitor and verify the calculation of the queries. The parties agree to work in good faith to resolve any discrepancies in the Parties’ calculation of the queries.

 

	Percentage of Revenue to be paid to Opera each calendar quarter
Date	Base revenue share	Total queries< [***] of Desktop Threshold	Total queries>[***] of the Desktop Threshold	Total queries >[***] of the Desktop Threshold
2016	[***]	[***]	[***]	[***]
January 1, 2017 -March 1, 2018	[***]	[***]	[***]	[***]
March 1, 2018 -	[***]	[***]	[***]	[***]

 

4.1.2      Mobile Revenue share

 

The percentage of Revenue paid Lo Opera each calendar quarter for Mobile products as specified in the table below shall be linked to the quarterly total query volume in Russia against a baseline threshold. For purposes of this Agreement, the baseline threshold for the specified periods below shall be [***] queries per quarter (“Mobile Threshold”). The Mobile Threshold will be calculated based on queries in Russia only (not any other countries in the Territory), excluding any fraudulent and robotic traffic by standard Yandex filtering mechanics. For the avoidance of doubt, if the Mobile Threshold is met the percentages below will apply to all countries in the Territory. Yandex shall provide Opera with the relevant reporting tools to monitor and verify the calculation of the queries. The parties agree to work in good faith to resolve any discrepancies in the Parties’ calculation of the queries.

 

 

	Percentage of Revenue to be paid to Opera each calendar quarter
Date	Base revenue share	Total queries in Russia [***] of the Mobile Threshold	Total queries in Russia [***] of the Mobile Threshold
July 1, 2016	[***]	[***]	[***]

 

3.

FUNCTIONALITY IMPLEMENTATIONS FOR YANDEX

 

The Parties agree to add the following section to the Agreement:

 

“2A       FORMALIZATION OF CERTAIN FUNCTIONALITY FOR YANDEX TO FULFILL THE PARTIES INTENTIONS IN SECTION 2.1.8 OF THE AGREEMENT

 

For purposes of this section 2A, the term “Territory” means [***]

 

2A.1       Functionality Implementation for Yandex in the Opera Mobile Browser on the Android platform Opera Mini Browser and Opera Desktop Browser.

 

With reference to clause 2.1.8 of the Agreement, the parties have agreed to this section 2A.1 in order to formalize the Parties’ discussion and conclusions during Q1 and Q2 2016 to work together to reprioritize Opera’s development plans for versions of Opera Mobile for Android, Opera Mini and Opera Desktop.

 

For each Future Opera Product, Opera shall use commercially reasonable efforts to use the same or similar implementations of the Yandex Product as described in (i) Sections 2A.1.1 for any future Opera Product developed, distributed or made available for mobile devices; and (ii) Section 2A.2.1 for any Future Opera Product developed, distributed or made available for desktop devices. Notwithstanding the foregoing, Yandex acknowledges and understands that Future Opera Products are subject to changes in Opera’s product development plans, and such implementations cannot be guaranteed. Opera and Yandex shall work together in good faith to discuss how to solve any negative impacts of such development in such Opera Products.

 

2A.1.1

The Opera Mobile Browser on the Android platform and the Opera Mini Browse distributed in the Territory from websites controlled by Opera, and/or it contractors in the Territory in the Russian, English or other local language of the Territory, will include the following functionality customized for Yandex:

 

a.

[***]

 

b.

[***]

 

c.

[***]

 

d.

[***]

 

 

2A.1.2

Yandex agrees to pay an Integration Fee for the functionality customized for Yandex as described in 2A.1.1. The Integration Fee is a one-time lump sum fee of [***] ([***] US dollars) that shall become due upon the completion of the functionality modifications made for Yandex as listed in 2A.1.1 with a payment date within 60 days after Opera’s invoices and Act of acceptance, which shall be issued upon completion of all the listed functionalities.

 

2A.1.3

The above functionalities in 2A.1.1 c) and d) which have not already been complete shall be done no later than October, 1 2016. Any future adjustments should be agreed between Parties in advance.

 

2A.2       Functional it Implementation for Yandex in the Opera Desktop Browser

 

2A.2.1

The Opera Desktop Browser distributed in the Territory from websites controlled by Opera, and/or its contractors in the Territory in the Russian, English or other local language of the Territory, will include the following functionality customized for Yandex:

 

a.

[***]

 

b.

[***]

 

c.

[***]

 

2A.2.2

Yandex agrees to pay an Integration Fee. for the functionality customized made for Yandex as described in 2A.2.1 The Integration Fee is a one-time lump sum fee of [***] ([***] US dollars) that shall become due upon the completion of the functionality modifications made for Yandex as listed in 2A.2.1 with a payment date within 60 days after Opera’s invoices and Act of acceptance, which shall be issued upon completion of all the listed functionalities.

 

2A.2.3

The above functionality outlined in 2A.2.1 c) which has not already been completed shall be done no later than October, 1 2016. Any future adjustments should be agreed between Parties in advance.”

 

4.

APPLICABLE PROVISIONS

 

All provisions of the Agreement shall continue in full force and effect unless modified by this Addendum No 5. All terms defined in the Agreement shall have the same meaning when used herein as given therein. In case of conflict between the Agreement and Addendum No 5, the latter shall prevail.

 

IN WITNESS WHEREOF, the Parties hereto have executed this Addendum No 5:

 

OPERA SOFTWARE ASA:			YANDEX LLC:
/s/ Joakim Kasbohm			/s/ llya Karpu Khin
Name:	Joakim Kasbohm		Name:	llya Karpu Khin
Title:	VP Global FP&A		Title:	Head of Desktop Distribution
Date:			Date:

 

 

Exhibit 23.1

 

Consent of Independent Registered Public Accounting Firm

The Board of Directors
Opera Limited (formerly Kunhoo Software LLC):

We consent to the use of our report dated May 8, 2018 with respect to the consolidated statements of financial position of Kunhoo Software LLC and subsidiaries as of December 31, 2017 and 2016 (Successor), and the related consolidated statements of operations, total comprehensive income (loss), changes in equity, and cash flows for the year ended December 31, 2017 (Successor) and for the period from July 26, 2016 to December 31, 2016 (Successor), and for the period from January 1, 2016 to November 3, 2016 (Predecessor), and the related notes, included herein and to the reference to our firm under the heading "Experts" in the prospectus.

 

Our report contains an emphasis of matter paragraph that states the Predecessor financial statements have been prepared on a carve-out basis.

 

/s/ KPMG AS

Oslo, Norway

July 23, 2018

 

Consent of Independent Registered Public Accounting Firm

 

The Board of Directors

Opera Limited:

 

We consent to the use of our report dated June 29, 2018, with respect to the statement of financial position of Opera Limited as of March 31, 2018 included herein and to the reference to our firm under the heading “Experts” in the prospectus.

 

 

/s/ KPMG AS

 

Oslo, Norway

 

July 23, 2018

 

 

Exhibit 99.2

 

 

July 23, 2018

 

By Email

 

Opera Limited

 

Maples Corporate Services Limited,

PO Box 309, Ugland House,

Grand Cayman, KY1-1104,

Cayman Islands

 

 

LEGAL OPINION

 

Dear Sirs

 

RE: Offering of American Depositary Shares Representing Ordinary Shares of Opera Limited

 

We are qualified lawyers of the Kingdom of Norway (“Norway”) and, as such, are qualified to issue this opinion on the laws and regulations of Norway.

 

 

1

Purpose

 

We act as the Norwegian Counsel to Opera Limited (the “Issuer”), a company incorporated under the laws of the Cayman Islands, and this opinion is delivered to you solely for your benefit in connection with (i) the proposed initial public offering (the “Offering”) of American depositary shares (the “ADSs”), each ADS representing two ordinary shares of the Issuer, by the Issuer as set forth in the Issuer’s registration statement on Form F-1, including all amendments or supplements thereto (the “Registration Statement”), filed by the Issuer with the U.S. Securities and Exchange Commission under the U.S. Securities Act of 1933, as amended, in relation to the Offering, and (ii) the Issuer’s proposed listing of the ADSs on the NASDAQ.

 

 

2

Definitions

 

As used in this opinion:

 

“Norwegian laws” means all laws, regulations, statutes, orders, decrees, guidelines, notices, circulars, notifications, judicial interpretations and subordinate legislations of Norway currently in effect.

 

 

3

SCOPE OF OPINION

 

3.1

We express no opinion on the laws of any jurisdiction other than Norway. This Letter and the opinions set out hereunder is to be governed by and construed in accordance with the laws of Norway and is given on the basis of the current laws in Norway.

 

3.2

This Letter is being addressed to the Company in relation to the Listing at their request subject to the condition that nothing in this Letter shall be seen in any way as giving rise to a solicitor-client relationship between ourselves and any other party and upon which they may act (other than the Company and the Operating Company).

 

 

3.3

This Letter may only be relied upon by the Company but may be: (i) provided to the extent required by law or regulation, to the relevant governmental or regulatory authorities; (ii) shared with the respective affiliates and legal advisors of the Company; and (iii) extracted and referred in the documents related to the Listing, including but not limited to any document that may be posted publicly (“Public Documents”) provided that, in each case, that this opinion shall not be relied upon by any recipient of this Letter other than the Company. This Letter may not, without our prior written consent, be relied on by any other person or for any other purpose.

 

3.4

To the extent permitted by applicable law and regulation, the Company may rely on this opinion only on condition that any recourse to us in respect of the matters addressed in this opinion is against the firm’s assets only and not against the personal assets of any individual partner. The firm’s assets for this purpose consist of all assets of the firm’s business, including any right of indemnity of the firm or its partners under the firm’s professional indemnity insurance policies, but exclude any right to seek contribution or indemnity from or against any partner of the firm or person working for the firm or similar right. Our aggregate liability under this legal opinion shall in no event exceed the total net fee in connection with the Listing. We accept no liability in respect of this opinion to any person other than the addressees. This opinion is governed by our standard terms of business, attached hereto.

 

3.5

The opinions given herein are as of the date hereof, and we assume no obligation to update or supplement this Letter to reflect any facts or circumstances which may hereafter come to our attention or to any changes in law which may occur.

 

3.6

We express no opinion on the laws of any jurisdiction other than Norway. We have made no investigation of the laws of any other jurisdiction as a basis for this opinion and do not purport to express or imply any opinion thereon. No opinion is expressed as to matters of fact or commercial matters.

 

 

4

OPINION

 

Based on the foregoing and subject to the qualifications set out herein, our views follow below:

 

All statements set forth in the Registration Statement under the captions “Enforceability of Civil Liabilities”, “Business” and “Taxation”, in each case insofar as such statements describe or summarize Norwegian Laws or proceedings referred to therein, are true and accurate in all material respects, and fairly present and summarize in all material respects the Norwegian Laws or proceedings referred to therein, and nothing has been omitted from such statements which would make the same misleading in any material respects. The disclosures containing our opinions in the Registration Statement under the captions “Enforceability of Civil Liabilities”, “Business” and “Taxation” constitute our opinions.

 

* * * *

 

 

We hereby consent to the use of this opinion in, and the filing hereof as an exhibit to, the Registration Statement, and to the references to our name in such 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 U.S. Securities Act of 1933, as amended, or the rules and regulations of the U.S. Securities and Exchange Commission thereunder.

 

 

Yours faithfully,

 

Wikborg Rein Advokatfirma AS 

 

 

 

Appendix: Standard terms of business