EX-5.2 OPINION OF PATTERSON BELLKNAP WEBB & TYLER LLP
Published on January 8, 2008
Exhibit 5.2
PBWT DRAFT
[DATE], 2008
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center
250 Vesey Street
New York, New York 10080
U.S.A.
Piper Jaffray & Co.
[ADDRESS]
[ADDRESS]
Ladies and Gentlemen:
We have acted as United States of America ("United States") counsel to
Citibank, N.A., in its capacity as Depositary (the "Depositary") under the
Deposit Agreement, dated as of [DATE], 2008 (the "Deposit Agreement"), by and
among the Depositary, ATA Inc. (the "Company"), a company incorporated under the
laws of the Cayman Islands (the "Country"), and all Holders and Beneficial
Owners (each as defined in the Deposit Agreement) of American Depositary Shares
(the "ADSs") issued thereunder, each ADS representing the right to receive,
subject to the terms of the Deposit Agreement and Cayman Islands law, one common
share, par value US$0.01 per common share, of the Company (the "Shares"). A form
of the Deposit Agreement is attached as an exhibit to the Registration Statement
on Form F-6 (Reg. No.: 333-[REG. NO.]) relating to the ADSs (the "Registration
Statement") filed with the Securities and Exchange Commission on [DATE], 2007.
This opinion is being delivered to you in connection with the issuance and
delivery by the Depositary of [NUMBER] ADSs (the "Sale ADSs") in connection with
the sale (the "Sale") by the Company of the Sale ADSs to you and the several
underwriters named in [Schedule I] to the Underwriting Agreement (defined below)
and for whom you are acting as representatives (collectively, the
"Underwriters") pursuant to the Underwriting Agreement, dated [DATE], 2008 (the
"Underwriting Agreement"), among the Company and each of you, as the
representatives of the Underwriters. We express no opinion as to the compliance
of the Sale with the Securities Laws (as hereinafter defined) or the laws of the
Cayman Islands, and we understand that you are relying on separate opinions of
counsel to the Company for comfort on the subject of compliance with the
Securities Laws and Cayman Islands laws.
We have examined a copy of the signed Deposit Agreement and originals, or
photostatic or certified copies, of such records of the Depositary, and such
other documents as we have deemed relevant and necessary in rendering the
opinions set forth herein. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to originals of all documents submitted to
[DATE], 2008
Page 2
us as photostatic or certified copies and the authenticity of the originals of
such copies. We have also assumed that (i) the Deposit Agreement has been duly
authorized, executed and delivered by the Company and constitutes a legal, valid
and binding obligation of the Company, (ii) the Sale, and the issuance and
delivery of the Sale ADSs in connection with the Sale, complies in all respects
with the requirements of the United States Securities Act of 1933, as amended,
the United States Securities Exchange Act of 1934, as amended, the United States
Investment Company Act of 1940, as amended, and the securities laws of the
States of the United States (collectively, the "Securities Laws"), and with the
laws of the Cayman Islands, (iii) the Shares represented by the Sale ADSs have
been duly authorized and validly issued and are fully paid and non-assessable,
and any preemptive rights with respect to such Shares have been validly waived
or exercised, (iv) the Shares represented by the Sale ADSs have been duly
deposited with the Custodian (as defined in the Deposit Agreement), (v) each of
the parties to the Deposit Agreement will comply with their respective
obligations thereunder, and (vi) the Registration Statement has been duly signed
on behalf of the Company by a person thereunto duly authorized, by officers and
directors of the Company duly elected or appointed to the offices specified
therein and by the Company's authorized representative in the United States
thereunto duly appointed and directed, in each case in accordance with all
applicable laws and regulations. In addition, we have relied as to certain
matters on information obtained from public officials, officers of the
Depositary and other sources believed by us to be responsible.
In connection with the provisions of the Deposit Agreement whereby the
Depositary submits to the non-exclusive jurisdiction of New York State or United
States federal courts located in The City of New York, we note the limitations
of 28 U.S.C. Sections 1331 and 1332 on subject matter jurisdiction of the United
States federal courts. In connection with the provisions of the Deposit
Agreement which relate to forum selection (including, without limitation, any
waiver of any objection to venue or any objection that a court is an
inconvenient forum), we note that, under NYCPLR Section 510, a New York State
court has discretion to transfer the place of trial, and that, under 28 U.S.C.
Section 1404(a), a United States District Court has discretion to transfer an
action from one United States federal court to another.
Nothing contained herein or in any document referred to herein is intended
by this firm to be used, and the addressees hereof cannot use anything contained
herein or in any document referred to herein, as "tax advice" (within the
meaning given to such term by the United States Internal Revenue Service ("IRS")
in IRS Circular 230 and any related interpretative advice issued by the IRS in
respect of IRS Circular 230 prior to the date hereof, and hereinafter used
within such meaning and interpretative advice). Without admitting that anything
contained herein or in any document referred to herein constitutes "tax advice"
for any purpose, notice is hereby given that, to the extent anything contained
herein or in any document referred to herein constitutes, or is or may be
interpreted by any court, by the IRS or by any other administrative body to
constitute, "tax advice," such "tax advice" is not intended or written to be
used, and cannot be used, for the purpose of (i) avoiding penalties under the
United States Internal Revenue Code of 1986, as amended, or (ii) promoting,
marketing or recommending to any party any transaction or matter addressed
herein.
[DATE], 2008
Page 3
Based upon the foregoing and subject to the assumptions, qualifications and
limitations herein stated, we are of the opinion that:
(i) The Deposit Agreement has been duly authorized, executed and delivered
by the Depositary and constitutes the valid and legally binding agreement of the
Depositary, enforceable against the Depositary in accordance with its terms
except to the extent that (a) enforcement thereof may be limited by (1)
bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws now or
hereafter in effect relating to or affecting creditors' rights generally, and
(2) general principles of equity (regardless of whether enforceability is
considered in a proceeding in law or in equity), and (b) rights to indemnity and
contribution may be limited by United States federal or state securities laws or
public policy; and
(ii) The Depositary has full power and authority to execute and deliver the
Deposit Agreement and to perform its obligations thereunder; and
(iii) Upon the issuance by the Depositary of the Sale ADSs against deposit
of the requisite Shares with the Custodian in accordance with the terms and
conditions of the Deposit Agreement and the Registration Statement, the Sale
ADSs will be duly and validly issued and will entitle the Holders thereof (as
defined in the Deposit Agreement) to the rights specified in the American
Depositary Receipt(s) ("ADRs") evidencing the Sale ADSs and in the Deposit
Agreement; and
(iv) The Registration Statement has been declared effective under the
United States Securities Act of 1933, as amended, and, to our knowledge, no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceeding for that purpose has been initiated or threatened. The
Registration Statement complies as to form in all material respects with the
requirements of the United States Securities Act of 1933, as amended, and the
rules and regulations adopted by the Securities and Exchange Commission
thereunder, in each case as known to us to be interpreted by the Staff of the
Securities and Exchange Commission at this time; and
(v) The statements in the Final Prospectus filed as part of the
Registration Statement on Form F-1 (Reg. No.: 333-[REG. NO.]) under the heading
"Description of American Depositary Shares," insofar as such statements purport
to describe the Depositary and summarize certain provisions of the Deposit
Agreement, the ADSs and the ADRs, fairly present, in all material respects, the
matters therein described.
This opinion letter is being delivered solely for the benefit of, and may
be relied upon solely by, the Underwriters and by the Depositary in connection
with the transactions contemplated by the Underwriting Agreement. This opinion
letter shall not be otherwise used, circulated or quoted without the express
prior written consent of this firm. The opinions expressed herein are rendered
as of the date hereof and we assume no obligation to update or supplement such
opinions to reflect any facts or circumstances that may hereafter come to our
[DATE], 2008
Page 4
attention or any changes in law (by legislative action, judicial or regulatory
decision, or otherwise) that may hereafter occur or become effective.
We express no opinion as to matters governed by laws of any jurisdiction
other than the laws of the State of New York. We express no opinion as to the
effect of the laws of any other jurisdiction.
Very truly yours,
PATTERSON BELKNAP WEBB & TYLER LLP
By:___________________________
A Member of the Firm
cc: Citibank, N.A. - ADR Department