Re: Deposit Agreement dated as of , 2007, (the “Deposit Agreement”) by and among Agria Corporation, The Bank of New York, as Depositary, and the Owners and holders of American Depositary Receipts
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| Re: | Deposit Agreement dated as of , 2007, (the “Deposit Agreement”) by and among Agria Corporation, The Bank of New York, as Depositary, and the Owners and holders of American Depositary Receipts |
Ladies and Gentlemen:
We refer to the Deposit Agreement. Capitalized terms defined in the Deposit Agreement and not
otherwise defined herein are used herein as defined in the Deposit Agreement.
We hereby agree that, without the prior consent of the Company, (i) we will not (a)
Pre-Release Receipts or (b) permit any Pre-Release to remain outstanding at any time, in each case
except pursuant to a pre-release agreement containing agreements, representations and warranties
substantially to the effect of Sections 3(a), 3(e), 4, 7(a) and 14 of the form of ADR Pre-Release
Agreement attached hereto (or, if the Pre-Release Agreement does not contain an agreement
substantially to the effect of the provisions of Section 14 of such form, we will indemnify the
Company to the same extent that the counterparty to a Pre-Release would be required by said Section
14 to indemnify the Company) and (ii) we will undertake a Pre-Release only
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pursuant to written agreements that meet the requirements of Section 1058(b) of the United
States Internal Revenue Code of 1986 as amended.
We confirm that we currently do not, and do not intend to, make any Pre-Release to any person
until such person has undergone the Depositary’s standard credit review process.
If, after the date hereof, the Depositary’s ADR Department is advised by counsel that there
has occurred a material change in the U.S. federal income tax law (including judicial and
administrative interpretations thereof) regarding the treatment of Pre-Release, we agree to notify
the Company promptly of such change and to advise the Company as to the changes, if any, that we
intend to make, or have made, to the Pre-Release procedures then being followed by us as a result
of such change in the tax law. We will in good faith consult with the Company and consider all
suggestions, without any obligation on our part to change our Pre-Release procedures.
We will indemnify and hold harmless the Company and each Owner from time to time of a Receipt
against all losses, claims, damages, liabilities and expense (including reasonable attorneys’ fees)
based upon a breach by the Depositary of any agreement of the Depositary set forth in this letter.
If any action or claim shall be brought against the Company in respect of which indemnity may
be sought pursuant to the preceding paragraph or the second paragraph of this letter, the Company
shall notify the Depositary in writing of such action or claim giving reasonable details thereof.
The Depositary shall
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have the option of assuming the defense thereof, with counsel satisfactory to the Company (who
shall not, except with the consent of the Company, be counsel to the Depositary in connection with
such action or claim), and, after notice from the Depositary to the Company of its election so to
assume the defense thereof, the Depositary shall not be liable to the Company or any other
indemnified party for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the Company or any other indemnified party, in connection with the defense
thereof other than reasonable costs of investigation. No compromise or settlement of such action
or proceeding may be effected by either party without the other party’s consent (which shall not be
unreasonably withheld) unless (i) there is no finding or admission of any violation of law and no
effect on any other claims that may be made against such other party and (ii) the sole relief
provided is monetary damages that are paid in full by the party seeking such compromise or
settlement.
| Very truly yours, THE BANK OF NEW YORK as Depositary |
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| By: | ||||
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