As filed with the Securities and Exchange Commission
on September 16, 2003 Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-6
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933 FOR AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
(Exact name of issuer of deposited securities as specified in its charter)
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Advanced Semiconductor Engineering, Inc.
(Translation of issuer's name into English)
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Republic of China
(Jurisdiction of incorporation or organization of issuer)
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CITIBANK, N.A.
(Exact name of depositary as specified in its charter)
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111 Wall Street
New York, New York 10043
(212) 657-5100
(Address, including zip code, and telephone number, including area code, of
depositary's principal executive offices)
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Puglisi & Associates
850 Library Avenue, Suite 204
Newark, DE 19711
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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Copies to:
Show-Mao Chen, Esq. Frettra M. Miller, Esq.
Davis Polk & Wardwell Citibank, N.A.
The Hong Kong Club Building, 18th Floor 111 Wall Street, 15th floor/Zone 9
3A Chater Road New York, New York 10043
Hong Kong (212) 657-2150
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It is proposed that this filing become effective under Rule 466:
|X| immediately upon filing.
|_| on (Date) at (Time).
If a separate registration statement has been filed to register the deposited
shares, check the following box: |_|
CALCULATION OF REGISTRATION FEE
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Title of Each Amount to be Proposed Proposed Amount of
Class of Securities Registered Maximum Maximum Registration
to be Registered Aggregate Aggregate Fee
Price Per Offering
Unit* Price**
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Share ADSs, each
representing five (5)
common shares, par value
NT $10.00 per share
("Shares"), of Advanced
Semiconductor Engineering,
Inc. (the "Company").
---------------------------
Temporary ADSs
automatically exchangeable
into Share ADSs, each
Temporary ADS representing
interests in a global
Certificate of Payment,
each interest representing
the irrevocable right to
receive five (5) Shares
from the Company. 100,000,000 ADSs $ 5.00 5,000,000.00 $ 404.50
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* Each unit represents 100 American Depositary Shares.
** Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(k), such estimate is computed on the basis of the
maximum aggregate fees or charges to be imposed in connection with the
issuance of receipts evidencing American Depositary Shares.
This Registration Statement may be executed in any
number of counterparts, each of which shall be deemed
an original, and all of such counterparts together
shall constitute one and the same instrument.
PART I
INFORMATION REQUIRED IN PROSPECTUS
Cross Reference Sheet
Item I. DESCRIPTION OF SECURITIES TO BE REGISTERED
Location in Form of American Depositary
Item Number and Caption Receipt ("Receipt")
Filed Herewith as Prospectus
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1. Name of Depositary and Face of Receipt- introductory article
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address of its principal
executive office
2. Title of Receipts and identity Face of Receipt - top center
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of deposited securities
Terms of Deposit:
(i) The amount of deposited Face of Receipt - upper right corner
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securities represented
by one American
Depositary Share
(ii) The procedure for voting, Reverse of Receipt - Paragraphs (l6)
------------------
if any, the deposited and (17)
securities
(iii)The collection and Reverse of Receipt - Paragraph (14)
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distribution of dividends
(iv) The transmission of Face of Receipt - Paragraphs (13)and
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notices, reports and (16)
proxy soliciting material
Location in Form of Receipt Filed
Item Number and Caption Herewith as Prospectus
---------------------------------------
(v) The sale or exercise of Reverse of Receipt - Paragraphs
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rights (14) and (16)
(vi) The deposit or sale of Face of Receipt - Paragraphs (3), (6),
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securities resulting from (14) and (18)
dividends, splits or
plans of reorganization Reverse of Receipt - Paragraph (14)
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(vii)Amendment, extension or Reverse of Receipt - Paragraphs (23)
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termination of the and (24) (no provisions for
deposit agreement extensions)
(viii)Rights of holders of Face of Receipt - Paragraph (13)
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Receipts to inspect the
transfer books of the
Depositary and the list
of holders of Receipts
(ix) Restrictions upon the Face of Receipt - Paragraphs (2), (3),
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right to deposit or (4), (6), (7), (9) and (10)
withdraw the underlying
securities
(x) Limitation upon the Face of Receipt - Paragraph (7)
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liability of the
Depositary Reverse of Receipt - Paragraphs (19)
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and (20)
3. Fees and charges which may be Reverse of Receipt - Paragraph (10)
------------------
be imposed directly or
indirectly on holders of
Receipts
Item 2. AVAILABLE INFORMATION Face of Receipt - Paragraph (13)
---------------
The Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934, as amended, and, accordingly, files certain reports with
the United States Securities and Exchange Commission (the "Commission"). These
reports can be inspected by holders of Receipts and copied at public reference
facilities maintained by the Commission located at Judiciary Plaza, 450 Fifth
Street, N.W., (Room 1021), Washington D.C. 20549 and at the principal executive
office of the depositary.
PROSPECTUS
----------
The Prospectus consists of the proposed form of
American Depositary Receipt, included as Exhibit A to
the Amended and Restated Deposit Agreement filed as
Exhibit (a) to this Registration Statement and
incorporated herein by reference.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 3. EXHIBITS
(a) Amended and Restated Deposit Agreement, dated as of September 29,
2000 by and among Advanced Semiconductor Engineering, Inc. (the "Company"),
Citibank, N.A., as depositary (the "Depositary"), and all Holders and Beneficial
Owners of American Depositary Shares evidenced by the American Depositary
Receipts issued thereunder ("Deposit Agreement"). - Filed herewith as Exhibit
(a).
(b) Any other agreement to which the Depositary is a party relating to
the issuance of the American Depositary Shares registered hereunder or the
custody of the deposited securities represented thereby. - None.
(c) Every material contract relating to the deposited securities between
the Depositary and the issuer of the deposited securities in effect at any time
within the last three years. -None.
(d) Opinion of counsel for the Depositary as to the legality of the
securities to be registered. - Filed herewith as Exhibit (d).
(e) Certificate under Rule 466. - Filed herewith as Exhibit (e)
Item 4. UNDERTAKINGS
(a) The Depositary hereby undertakes to make available at the principal
office of the Depositary in the United States, for inspection by holders of the
Receipts, any reports and communications received from the issuer of the
deposited securities which are both (1) received by the Depositary as the holder
of the deposited securities, and (2) made generally available to the holders of
the underlying securities by the issuer.
(b) If the amount of fees charged is not disclosed in the prospectus,
the Depositary undertakes to prepare a separate document stating the amount of
any fee charged and describing the service for which it is charged and to
deliver promptly a copy of such fee schedule without charge to anyone upon
request. The Depositary undertakes to notify each registered holder of a Receipt
thirty days before any change in the fee schedule.
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended,
Citibank, N.A., acting solely on behalf of the legal entity created by the
Amended and Restated Deposit Agreement, dated as of September 29, 2000, by and
among Advanced Semiconductor Engineering, Inc., Citibank, N.A., as depositary,
and all Holders and Beneficial Owners from time to time of American Depositary
Shares evidenced by American Depositary Receipts issued thereunder, certifies
that it has reasonable grounds to believe that all the requirements for filing
on Form F-6 are met and has duly caused this Registration Statement on Form F-6
to be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of New York, State of New York, on the 16th day of September, 2003.
Legal entity created by the Amended and
Restated Deposit Agreement for the issuance
of American Depositary Receipts evidencing
American Depositary Shares issued as (i)
Share American Depositary Shares ("Share
ADSs"), each Share ADS representing five (5)
common shares, par value NT S 10.00 per
share ("Shares"), of Advanced Semiconductor
Engineering, Inc. (the "Company") and (ii)
Temporary American Depositary Shares
("Temporary ADSs") automatically
exchangeable into Share ADSs, each Temporary
ADS representing interests in a global
Certificate of Payment, each interest
representing the irrevocable right to
receive five (5) Shares from the Company.
CITIBANK, N.A., solely in its capacity as
Depositary
By: /s/ Emi Mak
-------------------------------------
Name: Emi Mak
Title: Vice President
SIGNATURES
----------
Pursuant to the requirements of the Securities Act of 1933, as amended,
Advanced Semiconductor Engineering, Inc. certifies that it has reasonable
grounds to believe that it meets all the requirements for filing on Form F-6 and
has duly caused this Registration Statement on Form F-6 to be signed on its
behalf by the undersigned thereunto duly authorized, in Taipei, Taiwan, Republic
of China, on September 16, 2003.
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
By: /s/ Joseph Tung
---------------------------------
Name: Joseph Tung
Title: CFO/Director
POWER OF ATTORNEY
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KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Joseph Tung to act as his/her true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him/her and in his/her name, place and stead, in any and all
capacities, to sign any or all amendments, including post-effective amendments,
and supplements to this Registration Statement, and any related Rule 462(b)
registration statement or amendment thereto (including any post-effective
amendments thereto), and to the same, with all exhibits thereto and other
documents in connection therewith, with the United States Securities and
Exchange Commission, granting unto said attorney(s)-in-fact and agent(s) full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he/she might or could do in person, hereby ratifying and confirming
all that said attorney(s)-in-fact and agent(s), or his/her substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
following capacities on September 16, 2003.
Signature Title
/s/ Jason C.S. Chang Chairman and Director
---------------------------------
Name: Jason C.S. Chang
/s/ Richard H.P. Chang Chief Executive Officer and Director
---------------------------------
Name: Richard H.P. Chang (Principal Executive Officer)
/s/ Joseph Tung Chief Financial Officer and Director
---------------------------------
Name: Joseph Tung (Principal Accounting Officer)
/s/ Chin Ko-Chien Director
---------------------------------
Name: Chin Ko-Chien
/s/ David Pan Director
---------------------------------
Name: David Pan
/s/ Jeffrey Chen Director
---------------------------------
Name: Jeffrey Chen
/s/ Tien Wu Director
---------------------------------
Name: Tien Wu
SIGNATURE OF AUTHORIZED REPRESENTATIVE OF THE REGISTRANT
Pursuant to the Securities Act of 1933, the undersigned, the
duly acknowledged representative in the United States of Advanced Semiconductor
Engineering, Inc., has signed this registration statement or amendment thereto
in Newark, DE, on September 16, 2003.
By: /s/ Donald J. Puglisi
-------------------------------
Puglisi & Associates
Donald J. Puglisi
Managing Director
Index to Exhibits
-----------------
Sequentially
Exhibit Document Numbered Page
------- -------- -------------
(a) Amended and Restated
Deposit Agreement,
Dated as of September
29, 2000
(d) Opinion of counsel to
the Depositary
(e) Certification under Rule 466
(a) Amended and Restated Deposit Agreement,
Dated as of September 29, 2000
EXECUTION COPY
AMENDED AND RESTATED DEPOSIT AGREEMENT
by and among
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
Dated as of September 29, 2000
AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of September
29, 2000 (this Amended and Restated Deposit Agreement and all Exhibits hereto,
as amended and supplemented from time to time in accordance with its terms, the
"Deposit Agreement"), by and among (i) ADVANCED SEMICONDUCTOR ENGINEERING, INC.,
a company incorporated under the laws of the Republic of China, and its
successors (the "Company"), (ii) CITIBANK, N.A., a national banking association
organized under the laws of the United States of America acting in its capacity
as depositary, and any successor depositary hereunder (the "Depositary"), and
(iii) all Holders and Beneficial Owners of American Depositary Shares evidenced
by American Depositary Receipts issued hereunder (all such capitalized terms as
hereinafter defined).
W I T N E S S E T H T H A T:
---------------------------
WHEREAS, the Company has duly authorized and has outstanding
common shares, having a par value of NT$10.00 per share (the "Shares"), which
are listed for trading on the Taiwan Stock Exchange; and
WHEREAS, the Company and the Depositary previously entered
into a Deposit Agreement, dated as of July 13, 1995 and amended by Amendment No.
1 to Deposit Agreement, dated as of November 30, 1998 (such Deposit Agreement as
so amended, the "Original Deposit Agreement"), to provide for the deposit of the
Shares and the creation of (i) International Global Depositary Shares (the
"International GDSs") representing the Shares so deposited (the depositary
receipts facility for the International GDSs, the "Reg S GDR Facility") and (ii)
Rule 144A Global Depositary Shares (the "Rule 144A GDSs") representing the
Shares so deposited (the depositary receipts facility for the Rule 144A GDSs,
the "Rule 144A GDR Facility"); and
WHEREAS, pursuant to an Exchange Offer Prospectus, dated
September 26, 2000 (the "Exchange Offer Prospectus"), as filed with the U.S.
Securities and Exchange Commission under cover of a Registration Statement on
Form F-4 (Reg. No. 333-44636) on August 28, 2000 and declared effective on
September 25, 2000, the Company has made an offer to holders of its Rule 144A
GDSs to exchange such Rule 144A GDSs upon the terms set forth in such Exchange
Offer Prospectus for ADSs (as hereinafter defined) (the "Exchange Offer"); and
WHEREAS, the Company desires (i) to amend and restate the
Original Deposit Agreement to convert the International GDSs into American
Depositary Shares (the "ADSs") listed for trading on The New York Stock
Exchange, Inc. (the "NYSE") (the depositary receipts facility for such
NYSE-listed ADSs, the "NYSE-listed ADR Facility" or the "ADR Facility") and (ii)
to terminate the Rule 144A GDR Facility created under the terms of the Original
Deposit Agreement following the completion of the Exchange Offer in accordance
with the terms of the Original Deposit Agreement; and
WHEREAS, the Company wishes to provide for the deposit of a
single global Certificate of Payment (as hereinafter defined) and the creation
of "Temporary American Depositary Shares" representing interests in the
2
Certificate of Payment so deposited upon the terms set forth herein (the
"Temporary ADSs") listed for trading on the NYSE (the depositary receipts
facility for such Temporary ADSs, the "Temporary ADR Facility," and together
with the NYSE-listed ADR Facility, the "ADR Facilities"); and
WHEREAS, the Depositary is willing to act as the Depositary
for the ADR Facilities upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing each
series of the American Depositary Shares issued pursuant to the terms of this
Deposit Agreement are to be substantially in the form of Exhibit A attached
---------
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Deposit Agreement; and
WHEREAS, the Board of Directors of the Company (or an
authorized committee thereof) has duly approved the establishment of the ADR
Facilities.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein
shall have the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "Affiliate" shall have the meaning assigned to
---------
such term by the Commission (as hereinafter defined) under Regulation C
promulgated under the Securities Act (as hereinafter defined), or under any
successor regulation thereto.
Section 1.2 "American Depositary Share(s)" and "ADS(s)" shall
----------------------------
mean the rights and interests in the Deposited Securities (as hereinafter
defined) granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and the American Depositary Receipts issued
hereunder to evidence such ADSs. The International GDSs issued and outstanding
as of the date hereof shall, from and after the date hereof, be deemed for all
purposes to be Share ADSs (as hereinafter defined) issued and outstanding under
the terms of this Deposit Agreement, unless otherwise specifically noted. Each
American Depositary Share shall represent (i) in the case of Share ADSs, five
(5) Share(s) and (ii) in the case of Temporary ADSs, interests in the
Certificate of Payment, each interest representing the irrevocable right to
receive five (5) Shares from the Company, in each case until there shall occur a
distribution upon Deposited Securities referred to in Section 4.2 or a change in
Deposited Securities referred to in Section 4.11 with respect to which
additional American Depositary Shares are not issued, and thereafter each
American Depositary Share shall represent the Deposited Securities determined in
accordance with the terms of such Sections. Unless otherwise specifically set
forth in this Deposit Agreement or the applicable ADR, the terms "American
Depositary Shares" and "ADSs" shall include Temporary ADSs.
3
Section 1.3 "ADS Record Date" shall have the meaning given to
---------------
such term in Section 4.9.
Section 1.4 "Applicant" shall have the meaning given to such
---------
term in Section 5.10.
Section 1.5 "Beneficial Owner" shall mean as to any ADS, any
----------------
person or entity having a beneficial interest deriving from the ownership of
such ADS. A Beneficial Owner of ADSs may or may not be the Holder of the ADR(s)
evidencing such ADSs. A Beneficial Owner shall be able to exercise any right or
receive any benefit hereunder solely through the person who is the Holder of the
ADR(s) evidencing the ADS(s) owned by such Beneficial Owner. Beneficial Owners
of International GDSs issued and outstanding as of the date hereof shall, from
and after the date hereof, be deemed for all purposes to be Beneficial Owners of
Share ADSs under the terms hereof, unless otherwise specifically noted.
Section 1.6 "Business Day" shall mean any day on which both
------------
the banks in the Republic of China and the banks in New York are open for
business.
Section 1.7 "Certificate(s) of Payment" shall mean the single
-------------------------
global Certificate of Payment issued by the Company evidencing the irrevocable
right to receive definitive share certificates representing the Shares delivered
by the Company in connection with the Offering or any Certificate of Payment
issued by the Company in connection with any subsequent offerings or
distributions of Shares by the Company.
Section 1.8 "Commission" shall mean the Securities and
----------
Exchange Commission of the United States or any successor governmental agency
thereto in the United States.
Section 1.9 "Company" shall mean Advanced Semiconductor
-------
Engineering, Inc., a company incorporated and existing under the laws of the
Republic of China, having its principal executive offices at 26 Chin Third Road,
Nantze Export Processing Zone, Nantze, Kaohsiung, Taiwan, Republic of China.
Section 1.10 "Custodian" shall mean, as of the date hereof,
---------
Citibank, N.A., Taipei Branch, having its principal office at Citicorp Center,
52, Min Sheng East Road, Section 4, Taipei, the Republic of China, as the
custodian for the purposes of this Deposit Agreement, and any other entity that
may be appointed by the Depositary pursuant to the terms of Section 5.5 as
successor, substitute or additional custodian hereunder. The term "Custodian"
shall mean any custodian individually or all custodians collectively, as the
context requires.
Section 1.11 "Deliver" and "Delivery" shall mean, when used in
------- --------
respect of ADSs, Deposited Securities and Eligible Securities (as such terms are
hereinafter defined) and to the extent permissible under the laws of the
Republic of China, either (i) the physical delivery of the certificate(s)
4
representing such securities (including, without limitation, Receipts, as such
term is hereinafter defined), or (ii) the electronic delivery of such securities
by means of book-entry transfer, if available.
Section 1.12 "Deposit Agreement" shall mean this Amended and
-----------------
Restated Deposit Agreement and all exhibits hereto, as the same may from time to
time be amended and supplemented from time to time in accordance with the terms
hereof.
Section 1.13 "Depositary" shall mean Citibank, N.A., a
----------
national banking association organized under the laws of the United States, in
its capacity as depositary under the terms of this Deposit Agreement, and any
successor as depositary pursuant to the terms of Section 5.4 hereof.
Section 1.14 "Deposited Securities" shall mean, collectively
--------------------
or individually, as the context may require and unless otherwise specifically
set forth herein, (a) with respect to Share ADSs (as such term is hereinafter
defined), Shares and (b) with respect to Temporary ADSs (as such term is
hereinafter defined), interests in the single global Certificate of Payment, in
each case at any time deposited under this Deposit Agreement and any and all
other securities, property and cash held by the Depositary or the Custodian in
respect thereof, subject, in the case of cash, to the provisions of Section 4.8.
Notwithstanding anything else contained herein, the securities, property and
cash delivered to the Custodian in respect of Shares held in connection with the
International GDSs then outstanding, and any other deposited securities held as
of the date hereof under the Original Deposit Agreement in respect of the
International GDSs and defined as "Deposited Property" or "Deposited Shares"
thereunder in respect of the International GDRs, shall, for all purposes, from
and after the date hereof, be considered to be and treated as, Deposited
Securities hereunder in all respects. The collateral delivered in connection
with Pre-Release Transactions and/or Pre-Cancellation Sale Transactions in each
case as described in Section 5.10 hereof, shall not constitute Deposited
Securities.
Section 1.15 "Dollars" and "$" shall refer to the lawful
------- --
currency of the United States.
Section 1.16 "DTC" shall mean The Depository Trust Company, a
---
national clearinghouse and the central book-entry settlement system for
securities traded in the United States and, as such, the custodian for the
securities of DTC Participants (as hereinafter defined) maintained in DTC, and
any successor thereto.
Section 1.17 "DTC Participant" shall mean any financial
---------------
institution (or any nominee of such institution) having one or more participant
accounts with DTC for receiving, holding and delivering the securities and cash
held in DTC.
Section 1.18 "Eligible Securities" shall mean, collectively or
-------------------
individually as the context may require and unless otherwise specifically set
forth herein, (a) with respect to Share ADSs (as such term is hereinafter
defined), Shares, and (b) with respect to Temporary ADSs (as such term is
5
hereinafter defined), interests in the Certificate of Payment, in each case to
the extent eligible for deposit hereunder at any time and from time to time from
and after the date hereof.
Section 1.19 "Eligible Securities Registrar" shall mean
-----------------------------
President Securities Corp. or any other institution organized under the laws of
the Republic of China appointed by the Company to carry out the duties of
registrar for (a) the Shares and/or (b) any Certificates of Payment, and any
successor thereto.
Section 1.20 "Exchange Act" shall mean the United States
------------
Securities Exchange Act of 1934, as from time to time amended.
Section 1.21 "Foreign Currency" shall mean any currency other
----------------
than Dollars.
Section 1.22 "Full Entitlement ADS(s)"; "Full Entitlement
----------------------- ----------------
ADR(s)" and "Full Entitlement Deposited Securities" shall have the meaning given
------ -------------------------------------
to such terms in Section 2.11 hereof.
Section 1.23 "Holder" shall mean the person in whose name a
------
Receipt is registered on the books of the Depositary (or the Registrar, if any)
maintained for such purpose. Holders of International GDSs shall, from and after
the date hereof, by the terms of this Deposit Agreement automatically become
Holders of ADRs issued hereunder. A Holder may or may not be a Beneficial Owner.
If a Holder is not the Beneficial Owner of the ADSs evidenced by the Receipt
registered in its name, such person shall be deemed to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs evidenced by
such Receipt.
Section 1.24 "Initial Deposit" shall mean the initial deposit
---------------
of Shares or the single global Certificate of Payment, as the case may be, in
connection with the Company's Offering (as hereinafter defined).
Section 1.25 "International GDSs" shall mean the International
------------------
Global Depositary Shares issued under the Original Deposit Agreement and
outstanding as of the date hereof, as described in the second introductory
paragraph to this Deposit Agreement.
Section 1.26 "NT dollars" and "NT$" shall refer to New Taiwan
---------- --
Dollars, the lawful currency of the Republic of China.
Section 1.27 "Offering" shall mean the offering of ADSs in the
--------
United States as contemplated by the Underwriting Agreement, dated as of
September 25, 2000, by and among Goldman Sachs & Co. and Morgan Stanley Dean
Witter, as representatives of the several underwriters (as set forth therein)
and the Company and the Company's Prospectus, dated September 25, 2000 (as
hereinafter defined).
Section 1.28 "Original Deposit Agreement" shall mean Deposit
--------------------------
Agreement, dated as of July 13, 1995, as amended by Amendment No. 1 to Deposit
6
Agreement, dated as of November 30, 1998, as further described in the second
introductory paragraph to this Deposit Agreement.
Section 1.29 "Partial Entitlement ADS(s)"; "Partial
-------------------------- -------
Entitlement ADR(s)," and "Partial Entitlement Deposited Securities" shall have
------------------- ----------------------------------------
the meaning given to such terms in Section 2.11 hereof.
Section 1.30 "Pre-Release Transaction" shall have the meaning
-----------------------
set forth in Section 5.10(a).
Section 1.31 "Principal Office" shall mean, when used with
----------------
respect to the Depositary, the principal office of the Depositary at which at
any particular time its depositary receipts business shall be administered,
which, at the date of this Deposit Agreement, is located at 111 Wall Street, New
York, New York 10043, U.S.A.
Section 1.32 "Prospectus" shall mean the Company's Prospectus,
----------
dated September 25, 2000, filed under cover of the Company's Registration
Statement on Form F-1 (Reg. No. 333-44622), as filed with the Commission on
August 28, 2000.
Section 1.33 "Receipt(s)"; "American Depositary Receipt(s)"
---------- ------------------------------
and "ADR(s)" shall mean any series of the certificate(s) issued by the
------
Depositary to evidence the American Depositary Shares issued under the terms of
this Deposit Agreement, as such Receipts may be amended from time to time in
accordance with the provisions of this Deposit Agreement. A Receipt may evidence
any number of American Depositary Shares and may, in the case of American
Depositary Shares held through a central depository such as DTC, be in the form
of a "Balance Certificate." Unless otherwise specifically set forth herein, the
term "Receipts" shall include the Temporary ADRs evidencing the Temporary ADSs
issued hereunder. Notwithstanding anything else contained herein or therein, the
depositary receipts issued and outstanding under the Original Deposit Agreement
to evidence International GDSs shall, from and after the date hereof, be treated
as Receipts issued hereunder and shall, from and after the date hereof, be
subject to the terms hereof in all respects.
Section 1.34 "Registrar" shall mean the Depositary or, upon
---------
the request or with the approval of the Company, any bank or trust company
having an office in the Borough of Manhattan, The City of New York, which shall
be appointed by the Depositary to register issuances, transfers and
cancellations of Receipts as herein provided, and shall include any co-registrar
appointed by the Depositary for such purposes. Registrars (other than the
Depositary) may be removed and substitutes appointed by the Depositary. Each
Registrar (other than the Depositary) appointed pursuant to this Deposit
Agreement shall be required to give notice in writing to the Depositary
accepting such appointment and agreeing to be bound by the applicable terms of
this Deposit Agreement.
Section 1.35 "Republic of China"; "ROC" and "Taiwan" shall
----------------- --- ------
mean the Republic of China.
7
Section 1.36 "Restricted ADRs" and "Restricted ADSs" shall
--------------- ---------------
mean any ADRs and ADSs issued pursuant to Section 2.13 and 5.11. Any such
Restricted ADRs shall be held by the Holder thereof in certificated form and
legended in accordance with applicable U.S. laws and shall be subject to the
appropriate restrictions on sale, deposit, cancellation and transfer under such
laws.
Section 1.37 "Restricted Securities" shall mean collectively
---------------------
or individually, as the context may require, Eligible Securities, Deposited
Securities or ADSs, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act (as hereinafter defined) or the rules promulgated thereunder, or
(ii) are held directly or indirectly by an officer or director (or persons
performing similar functions) or other Affiliate of the Company, or (iii) are
subject to other restrictions on sale or deposit under (a) the laws of the
United States, (b) the laws of the Republic of China, (c) a shareholders
agreement, (d) the Articles of Incorporation of the Company, or (e) the
regulations of an applicable securities exchange unless, in each case, (x) such
Eligible Securities, Deposited Securities or ADSs are being sold to persons
other than an Affiliate of the Company in a transaction (i) covered by an
effective resale registration statement, or (ii) exempt from the registration
requirements of the Securities Act (as hereinafter defined), and (y) the
Eligible Securities, Deposited Securities or ADSs are not, when held by such
person(s), Restricted Securities.
Section 1.38 "Securities Act" shall mean the United States
--------------
Securities Act of 1933, as from time to time amended.
Section 1.39 "SFC" shall mean the Republic of China Securities
---
and Futures Commission, as further described in Section 2.3 hereof.
Section 1.40 "Shares" shall mean the Company's common shares,
------
each having a par value of NT$10.00 per share, validly issued and outstanding
and fully paid and may, if the Depositary so agrees after consultation with the
Company, include evidence of the right to receive Shares (other than interests
in any Certificate of Payment); provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation, reclassification,
conversion or any other event described in Section 4.11 in respect of the Shares
of the Company, the term "Shares" shall thereafter, to the maximum extent
permitted by law, represent the successor securities resulting from such change
in par value, split-up, consolidation, exchange, conversion, reclassification or
event.
Section 1.41 "Share American Depositary Share(s)" and "Share
---------------------------------- -----
ADS(s)" shall mean the rights and interests in deposited Shares granted to
------
Holders and Beneficial Owners pursuant to the terms and conditions of this
Deposit Agreement and the Share ADRs issued hereunder to evidence such Share
8
ADSs. The International GDSs issued under the Original Deposit Agreement and
outstanding as of the date hereof shall, from and after the date hereof, be
deemed for all purposes to be Share ADSs issued hereunder. Share ADSs shall,
unless otherwise specifically set forth herein, be deemed to be American
Depositary Shares or ADSs, as the context may require, for all purposes under
this Deposit Agreement.
Section 1.42 "Share American Depositary Receipt(s)" and "Share
------------------------------------ -----
ADR(s)" shall mean the Receipts issued by the Depositary to evidence Share ADSs
------
issued under the terms of this Deposit Agreement, as such Share ADRs may be
amended from time to time in accordance with the provisions hereof. A Share ADR
may evidence any number of Share ADSs and may, in the case of Share ADSs held
through a central depository such as DTC, be in the form of a "Balance
Certificate". Unless otherwise specifically set forth herein, the term "Share
ADRs" shall, from and after the date hereof, include the International GDRs
issued under the Original Deposit Agreement. Share ADRs shall, unless otherwise
specifically set forth herein or in the applicable ADR(s), be deemed to be
Receipts for all purposes under this Deposit Agreement.
Section 1.43 "Taiwan Securities Central Depository" shall mean
------------------------------------
the central depository for Shares in the Republic of China, and any successor
thereto.
Section 1.44 "Taiwan Stock Exchange" and "TSE" shall mean the
--------------------- ---
stock exchange in the Republic of China, upon which the Company's Shares are
listed for trading and any successor stock exchange thereto.
Section 1.45 "Temporary ADS(s)" shall mean the rights and
----------------
interests in any deposited Certificate of Payment granted to Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
(including, without limitation, Section 2.12 hereof) and the applicable
Temporary ADR(s) issued hereunder to evidence such Temporary ADSs. Temporary
ADSs shall, unless otherwise specifically set forth herein or in the applicable
Temporary ADR(s), be deemed to be American Depositary Shares or ADSs, as the
context may require, for all purposes under this Deposit Agreement.
Section 1.46 "Temporary ADR(s)" shall mean the Receipts issued
----------------
by the Depositary to evidence Temporary ADSs issued under the terms of this
Deposit Agreement (including, without limitation, Section 2.12 hereof), as such
Temporary ADRs may be amended from time to time in accordance with the terms
hereof. A Temporary ADR may evidence any number of Temporary ADSs and may, in
the case of Temporary ADSs held through a central depository such as DTC, be in
the form of a "Balance Certificate". Temporary ADRs shall, unless otherwise
specifically set forth herein or in the applicable Temporary ADR(s), be deemed
to be Receipts for all purposes under this Deposit Agreement.
Section 1.47 "United States" shall have the meaning assigned
-------------
to it in Regulation S as promulgated by the Commission under the Securities Act.
9
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF ELIGIBLE SECURITIES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby
-------------------------
appoints the Depositary as depositary for the Deposited Securities and hereby
authorizes and directs the Depositary to act in accordance with the terms set
forth in this Deposit Agreement. Each Holder and each Beneficial Owner, upon
acceptance of any ADSs (or any interest therein) issued in accordance with the
terms of this Deposit Agreement and each holder and each beneficial owner of
International GDSs who continues to hold such securities from and after the date
hereof, shall be deemed for all purposes to (a) be a party to and bound by the
terms of this Deposit Agreement and (b) appoint the Depositary its
attorney-in-fact, with full power to delegate, to act on its behalf and to take
any and all actions contemplated in this Deposit Agreement (including, without
limitation, Section 2.12 hereof), to adopt any and all procedures necessary to
comply with applicable law and to take such action as the Depositary in its sole
discretion may deem necessary or appropriate to carry out the purposes of this
Deposit Agreement (the taking of such actions to be the conclusive determinant
of the necessity and appropriateness thereof).
Section 2.2 Form and Transferability of Receipts.
------------------------------------
(a) Form. ADSs shall be evidenced by definitive Receipts which
----
shall be engraved, printed, lithographed or produced in such other manner as may
be agreed upon by the Company and the Depositary. Receipts may be issued under
this Deposit Agreement in denominations of any whole number of ADSs. The
Receipts shall be substantially in the form set forth in Exhibit A to this
---------
Deposit Agreement, with any appropriate insertions, modifications and omissions,
in each case as otherwise contemplated in this Deposit Agreement or required by
applicable law. Receipts shall be (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. No
Receipt and no ADS evidenced thereby shall be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company, unless such Receipt shall have been so dated, signed,
countersigned and registered. Receipts bearing the facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time of
signature was a duly authorized signatory of the Depositary or the Registrar, as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the delivery of such Receipt
by the Depositary. The Share ADRs and the Temporary ADRs shall each bear a
separate and distinct CUSIP number that is different from one another and from
any CUSIP number that was, is or may be assigned to any depositary receipts
previously or subsequently issued pursuant to any other arrangement between the
Depositary (or any other depositary) and the Company and which are not Receipts
issued hereunder.
10
(b) Legends. The Receipts may be endorsed with, or have
-------
incorporated in the text thereof, such legends or recitals not inconsistent with
the provisions of the Deposit Agreement (i) as may be necessary to enable the
Depositary to perform its obligations hereunder, (ii) as may be required to
comply with any applicable laws or regulations, or with the rules and
regulations of the New York Stock Exchange or of any other securities exchange
or market upon which ADSs may be traded, listed or quoted, or to conform with
any usage with respect thereto, (iii) as may be necessary to indicate any
special limitations or restrictions to which any particular Receipts or ADSs are
subject by reason of the date of issuance or type of the Deposited Securities or
otherwise, or (iv) as may be required by any book-entry system in which the ADSs
are held.
(c) Title. Subject to the limitations contained herein and in
-----
the Receipt, title to a Receipt (and to each ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such Receipt has been properly endorsed or
is accompanied by properly executed instruments of transfer. Notwithstanding any
notice to the contrary, the Depositary and the Company may deem and treat the
Holder of a Receipt (that is, the person in whose name a Receipt is registered
on the books of the Depositary) as the absolute owner thereof for all purposes.
Neither the Depositary nor the Company shall have any obligation nor be subject
to any liability under this Deposit Agreement or any Receipt to any holder of a
Receipt or any Beneficial Owner unless such holder is the Holder of such Receipt
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner, or the Beneficial Owner's representative, is the Holder
registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements
------------------
for the acceptance of the ADSs into DTC. A single ADR in the form of a "Balance
Certificate" will (except as contemplated in Section 2.12) evidence the ADSs
held through DTC and will be registered in the name of the nominee for DTC
(currently "Cede & Co.") and will provide that it represents the aggregate
amount of ADSs from time to time indicated in the records of the Depositary as
being issued hereunder and that the aggregate amount of ADSs represented thereby
may from time to time be increased or decreased by making adjustments on such
records of the Depositary and of DTC or its nominee as hereinafter provided. As
such, the nominee for DTC will be the only "Holder" of the ADR evidencing the
ADSs held through DTC. Citibank, N.A. (or such other entity as is appointed by
DTC or its nominee) may hold the "Balance Certificate" as custodian for DTC.
Each Beneficial Owner of ADSs held through DTC must rely upon the procedures of
DTC and the DTC Participants to exercise or be entitled to any rights
attributable to such ADSs. The DTC Participants shall for all purposes be deemed
to have all requisite power and authority to act on behalf of the Beneficial
Owners of the ADSs held in the DTC Participants' respective accounts in DTC and
the Depositary shall for all purposes be authorized to rely upon any
instructions and information given to it by DTC Participants on behalf of
Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADR
registered in the name of the nominee for DTC will be shown on, and transfers of
11
such ownership will be effected only through, records maintained by (i) DTC or
its nominee (with respect to the interests of DTC Participants), or (ii) DTC
Participants or their nominees (with respect to the interests of clients of DTC
Participants).
Section 2.3 Deposit with Custodian. The Depositary and the
-----------------------
Company have been advised that under Republic of China law, as in effect as of
the date hereof, no deposits of Eligible Securities may be made in the
NYSE-listed ADR Facility, and no ADSs may be issued against such deposits,
without receipt of specific approval of the Republic of China Securities and
Futures Commission (the "SFC"), except in connection with (i) the distribution
of additional Eligible Securities in connection with dividends on or free
distributions of Eligible Securities, (ii) the exercise by Holders of their
preemptive rights applicable to Eligible Securities evidenced by ADSs in the
event of capital increases for cash, or (iii) the purchase, as permitted
hereunder, directly by any person or through the Depositary of Shares on the TSE
for deposit in the ADR Facility, provided that the total number of ADSs
outstanding after an issuance described in clause (iii) does not exceed the
number of issued ADSs previously approved by the SFC in connection with the
Offering (plus any ADSs created pursuant to clauses (i) and (ii) above), and
subject to any adjustment in the number of Eligible Securities represented by
each ADS. The Depositary and the Company have been advised that under ROC law,
as in effect as of the date hereof, issuances under clause (iii) above will be
permitted only to the extent that previously issued ADSs have been canceled and
the Eligible Securities withdrawn from the ADR Facility upon cancellation of
such ADSs have been sold on the TSE. Except as contemplated by Section 2.13
hereof, the Depositary will not accept any Shares for deposit pursuant to clause
(iii) unless it receives satisfactory opinions of ROC and U.S. counsel to the
Company to the effect that such Eligible Securities may lawfully be deposited
pursuant to the Deposit Agreement and are not Restricted Securities. The laws of
the Republic of China applicable to the deposit of Eligible Securities may
change from time to time. There can be no assurances that current law will
continue in effect or that future changes of Republic of China law will not
adversely affect the ability to deposit Eligible Securities hereunder.
The Initial Deposit(s) of Shares into the ADR Facilities will
be made, by or on behalf of the Company or the investors (or nominees for the
investors) acquiring Shares and/or ADSs in the Offering, by the delivery to the
Custodian of a Certificate of Payment evidencing the irrevocable right to
receive the physical share certificates representing the Shares registered in
the name of the nominee of the Depositary as representative of the Holders, as
instructed by the Depositary. Subject to the terms and conditions of this
Deposit Agreement, upon such Initial Deposit(s), the Depositary shall execute
and deliver ADRs evidencing the ADSs representing the Deposited Securities
constituting the Initial Deposit(s) in the manner provided in Sections 2.5 and
2.12.
Subject to applicable laws and regulations of the Republic of
China and to the terms and conditions of this Deposit Agreement and applicable
law, Eligible Securities or evidence of rights to receive Eligible Securities
(other than Restricted Securities) may be deposited by any person (including the
12
Depositary in its individual capacity but subject, however, in the case of the
Company or any Affiliate of the Company, to Section 5.7 hereof) at any time,
whether or not the transfer books of the Company or the Eligible Securities
Registrar, if any, are closed, by Delivery of the Eligible Securities to the
Custodian. Every deposit of Eligible Securities shall be accompanied by the
following: (A) (i) in the case of Eligible Securities represented by
certificates issued in registered form, appropriate instruments of transfer or
endorsement, in a form satisfactory to the Custodian, (ii) in the case of
Eligible Securities represented by certificates in bearer form, the requisite
coupons and talons pertaining thereto, and (iii) in the case of Eligible
Securities delivered by book-entry transfer, confirmation of such book-entry
transfer to the Custodian or that irrevocable instructions have been given to
cause such Eligible Securities to be so transferred, (B) such certifications and
payments (including, without limitation, the Depositary's fees and related
charges) and evidence of such payments (including, without limitation, stamping
or otherwise marking such Eligible Securities by way of receipt) as may be
reasonably required by the Depositary or the Custodian in accordance with the
provisions of this Deposit Agreement and applicable law, (C) if the Depositary
so requires, a written order directing the Depositary to execute and deliver to,
or upon the written order of, the person(s) stated in such order a Receipt or
Receipts for the number of American Depositary Shares representing the Eligible
Securities so deposited, (D) evidence reasonably satisfactory to the Depositary
(which may be an opinion of counsel) that all necessary approvals have been
granted by, or there has been compliance with the rules and regulations of, any
applicable governmental agency in the Republic of China, and (E) if the
Depositary so requires, (i) an agreement, assignment or instrument reasonably
satisfactory to the Depositary or the Custodian which provides for the prompt
transfer by any person in whose name the Eligible Securities are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Eligible Securities or to receive other property in respect of any
such deposited Eligible Securities or, in lieu thereof, such indemnity or other
agreement as shall be reasonably satisfactory to the Depositary or the Custodian
and (ii) if the Eligible Securities are registered in the name of the person on
whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to exercise voting rights in respect of the Eligible Securities for
any and all purposes until the Eligible Securities so deposited are registered
in the name of the Depositary, the Custodian or any nominee.
Except as contemplated by Section 2.13, without limiting any
other provision of this Deposit Agreement, the Depositary shall instruct the
Custodian not to, and neither the Depositary nor the Custodian, nor any nominee,
agent or person acting on their behalf shall knowingly, accept for deposit (a)
any Restricted Securities nor (b) any fractional Eligible Securities nor (c) a
number of Eligible Securities which upon application of the ADS-to-Eligible
Securities ratio would give rise to fractional ADSs. No Eligible Securities
shall be accepted for deposit unless accompanied by evidence, if any is required
by the Depositary, that is reasonably satisfactory to the Depositary or the
Custodian that all conditions to such deposit have been satisfied by the person
depositing such Eligible Securities under the laws and regulations of the
Republic of China and any necessary governmental approval has been granted in
the Republic of China, if any. The Depositary may issue ADSs against evidence of
rights to receive Eligible Securities from the Company, any agent of the Company
13
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Eligible
Securities. Such evidence of rights may consist of, without limitation, written
specific guarantees of ownership of Eligible Securities furnished by the Company
or any such custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Eligible
Securities.
Section 2.4 Registration and Safekeeping of Deposited
-----------------------------------------
Securities. The Depositary shall instruct the Custodian upon each Delivery of
certificates representing registered Eligible Securities being deposited
hereunder with the Custodian (or other Deposited Securities pursuant to Article
IV hereof), together with the other documents above specified, to promptly
present such certificate(s), together with the appropriate instrument(s) of
transfer or endorsement, duly stamped, to the Eligible Securities Registrar for
transfer and registration of the Eligible Securities (as soon as transfer and
registration can be accomplished and at the expense of the person for whom the
deposit is made) in the name of the Depositary, the Custodian or a nominee of
either. Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or a nominee in each case on
behalf of the Holders and Beneficial Owners, at such place or places as the
Depositary or the Custodian shall determine.
Without limitation of the foregoing, neither the Depositary
nor the Custodian, nor any nominee, agent or person acting on their behalf shall
knowingly accept for deposit under this Deposit Agreement any Eligible
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Eligible Securities, or
any Eligible Securities the deposit of which would violate any provisions of the
Articles of Incorporation of the Company. In addition, and without limitation of
the foregoing, the Depositary and the Custodian will comply with written
instructions of the Company not to accept for deposit any Shares identified in
such instructions at such times and under such circumstances as may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with the securities laws of the United States and other
jurisdictions.
Section 2.5 Execution and Delivery of Receipts.The Depositary
----------------------------------
has made arrangements with the Custodian to confirm to the Depositary (i) that a
deposit of Eligible Securities has been made pursuant to Section 2.3 hereof,
(ii) that such Deposited Securities have been recorded in the name of the
Depositary, the Custodian or a nominee of either on the shareholders' register
maintained by or on behalf of the Company by the Eligible Securities Registrar
if registered Eligible Securities have been deposited or if deposit is made by
book-entry transfer, confirmation of such transfer in the books of the Taiwan
Securities Central Depository, (iii) that all required documents have been
received, and (iv) the person(s) to whom or upon whose order American Depositary
Shares are deliverable in respect thereof and the number of American Depositary
Shares to be so delivered thereby. Such notification may be made by first class
airmail letter postage prepaid, cable, telex, SWIFT message or, at the risk and
expense of the person making the deposit, by facsimile or other means of
14
electronic transmission with confirmation of receipt. Upon receiving such notice
from the Custodian, the Depositary subject to the terms and conditions of this
Deposit Agreement, applicable law and the provisions of the Articles of
Incorporation of the Company and the Eligible Securities, shall issue the ADSs
representing the Eligible Securities so deposited to or upon the order of the
person(s) named in the notice delivered to the Depositary and shall execute and
deliver at its Principal Office Receipt(s) registered in the name(s) requested
by such person(s) and evidencing the aggregate number of ADSs to which such
person(s) are entitled, but only upon payment to the Depositary of the charges
of the Depositary for accepting a deposit, issuing ADSs and executing and
delivering such Receipt(s) (as set forth in Section 5.9 and Exhibit B hereto)
---------
and all taxes and governmental charges and fees payable in connection with such
deposit and the transfer of the Eligible Securities and the issuance of the
Receipt(s). The Depositary shall only issue ADSs in whole numbers and deliver
ADRs evidencing whole numbers of ADSs. Nothing herein shall prohibit any
Pre-Release Transaction upon the terms set forth in this Deposit Agreement.
Section 2.6 Transfer, Combination and Split-Up of Receipts.
----------------------------------------------
(a) Transfer. The Registrar shall promptly register the
--------
transfer of Receipts (and of the ADSs represented thereby) on the transfer books
maintained for such purpose and the Depositary shall promptly cancel such
Receipts and execute new Receipts evidencing the same aggregate number and type
of ADSs as those evidenced by the Receipts canceled by the Depositary, shall
cause the Registrar to countersign such new Receipts and shall promptly Deliver
such new Receipts to or upon the order of the person entitled thereto, if each
of the following conditions has been satisfied: (i) the Receipts have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) the surrendered Receipts have been properly endorsed or are
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) the surrendered
Receipts have been duly stamped (if required by the laws of the State of New
York or of the United States), and (iv) all applicable fees and charges of, and
reasonable expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B hereto) have
been paid, subject, however, in each case, to the terms and conditions of the
applicable Receipts, of this Deposit Agreement and of applicable law, in each
case as in effect at the time thereof.
(b) Combination and Split-Up. The Registrar shall register the
------------------------
split-up or combination of Receipts (and of the ADSs represented thereby) on the
books maintained for such purpose and the Depositary shall cancel such Receipts
and execute new Receipts for the number of ADSs requested, but in the aggregate
not exceeding the number of the same type of ADSs evidenced by the Receipts
canceled by the Depositary, shall cause the Registrar to countersign such new
Receipts and shall Deliver such new Receipts to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) the
Receipts have been duly Delivered by the Holder (or by a duly authorized
attorney of the Holder) to the Depositary at its Principal Office for the
purpose of effecting a split-up or combination thereof, and (ii) all applicable
fees and charges of, and reasonable expenses incurred by, the Depositary and all
15
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B hereto) have been paid, subject, however, in each case, to the terms
---------
and conditions of the applicable Receipts, of this Deposit Agreement and of
applicable law, in each case as effect at the time thereof.
(c) Co-Transfer Agents. The Depositary may appoint one or more
------------------
co-transfer agents for the purpose of effecting transfers, 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 Holders or persons entitled to such Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary. Each
co-transfer agent appointed under this Section 2.6 (other than the Depositary)
shall give notice in writing to the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal and Sale of
Deposited Securities.
(a) ROC Requirements. The Depositary and the Company have been
----------------
advised that under ROC law, as in effect as of the date hereof, a Holder wishing
to withdraw Deposited Securities from the ADR facility is required to appoint an
eligible agent in the Republic of China to open (i) a securities trading account
with a local brokerage firm after receiving an approval from the TSE and (ii) a
bank account (the securities trading account and the bank account, collectively,
the "Accounts"), to pay ROC taxes, remit funds, exercise shareholders' rights
and perform such other functions as may be designated by such withdrawing
Holder. In addition, such withdrawing Holder is also required to appoint a
custodian bank to hold the securities in safekeeping, make confirmations and
settle trades and report all relevant information. Without making such
appointment and the opening of such Accounts, the withdrawing Holder would be
unable to hold or subsequently sell the Deposited Securities withdrawn from the
ADR Facilities on the TSE or otherwise. The laws of the Republic of China
applicable to the withdrawal of Deposited Securities may change from time to
time. There can be no assurances that current law will remain in effect or that
future changes of Republic of China law will not adversely affect the ability of
Holders to withdraw Deposited Securities hereunder.
(b) Sale of Deposited Securities. Upon surrender of Receipts
----------------------------
at the Principal Office and upon payment of any fees, reasonable expenses, taxes
or other governmental charges as provided hereunder, subject to the terms of
this Deposit Agreement and the Company's Articles of Incorporation, and the
transfer restrictions applicable to the Deposited Securities, if any, Holders
may request that the Deposited Securities represented by such Holders' Receipts
be sold on such Holder's behalf. Any Holder requesting a sale of Deposited
Securities may be required by the Depositary to deliver, or cause to be
delivered, to the Depositary a written order requesting the Depositary to sell,
or cause to be sold, such Deposited Securities. Any such sale of Deposited
Securities will be conducted in accordance with applicable ROC law through a
securities company in the ROC on the TSE or in such other manner as is or may be
16
permitted under applicable ROC law. Any such sale of Deposited Securities will
be at the expense and risk of the Holder requesting such sale. Any Holder
requesting the Depositary to sell the Deposited Securities represented by such
Holder's ADSs may be required to enter into a separate agreement to cover the
terms of the sale of such Deposited Securities.
Upon receipt of any proceeds from any such sale, the
Depositary shall, subject to any restrictions imposed by ROC law and
regulations, and as provided hereunder, convert or cause to be converted any
such proceeds into U.S. dollars and distribute any such proceeds to the Holders
entitled thereto after deduction or payment of any fees, reasonable expenses,
taxes or governmental charges (including, without limitation, any ROC and U.S.
taxes) incurred in connection with such sale, as provided under this Deposit
Agreement. Any such sale may be subject to ROC taxation on capital gains, if
any, and will be subject to a securities transaction tax in the ROC. The ROC
does not, as of the date hereof, impose tax on capital gains arising from ROC
securities transactions, but there can be no assurance that a capital gains tax
on ROC securities transactions will not be imposed in the future or as to the
manner in which any ROC capital gains tax in respect of a sale of Deposited
Securities would be imposed or calculated.
(c) Withdrawal of Deposited Securities. The Holder of ADSs
----------------------------------
shall be entitled to Delivery (at the Custodian's designated office) of the
Deposited Securities at the time represented by the ADS(s) upon satisfaction of
each of the following conditions: (i) the Holder (or a duly authorized attorney
of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office
(and if applicable, the Receipts evidencing such ADSs) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so required
by the Depositary, the Receipts Delivered to the Depositary for such purpose
have been properly endorsed in blank or are accompanied by proper instruments of
transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered 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 the person(s) designated in such
order, (iv) the Holder has delivered to the Depositary the certification
contemplated in Exhibit C hereof, duly completed by or on behalf of the
---------
Beneficial Owner(s) of the ADSs surrendered for withdrawal (unless the
Depositary is otherwise instructed by the Company), and (v) all applicable fees
and charges of, and reasonable expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B hereof) have been paid, subject, however, in each case, to the terms
and conditions of the Receipts evidencing the surrendered ADSs, of the Deposit
Agreement, of the Company's Articles of Incorporation and of any applicable laws
and regulations of the Republic of China and of the United States and the rules
of the Taiwan Securities Central Depository, and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
Upon satisfaction of each of the conditions specified above,
the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable,
17
the Receipts evidencing the ADSs so Delivered), (ii) shall direct the Registrar
to record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of the Receipts evidencing the ADSs so
canceled, of the Articles of Incorporation of the Company, of applicable laws
and regulations of the Republic of China and of the United States and of the
rules of the Taiwan Securities Central Depositary, and to the terms and
conditions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
The Depositary shall not accept for surrender ADSs
representing less than a whole number of Eligible Securities. In the case of the
Delivery to it of ADSs representing a number other than a whole number of
Eligible Securities, the Depositary shall cause ownership of the appropriate
whole number of Eligible Securities to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Eligible Security, or (ii) sell or cause to be sold the fractional
Eligible Security represented by the ADS(s) so surrendered and remit the
proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the ADSs. In addition, trading restrictions on the TSE may result in the price
per Eligible Security or on any lot of any type of Eligible Security other than
an integral multiple of 1,000 Eligible Securities being lower than the price of
Eligible Securities in lots of integral multiples of 1,000 Eligible Securities.
Notwithstanding anything else contained in any Receipt or the
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of Securities or rights, which are
at the time held by the Depositary in respect of the Deposited Securities
represented by the ADSs surrendered for cancellation and withdrawal. At the
request, risk and expense of any Holder so surrendering ADSs, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of the Deposited Securities represented by such
ADSs to the Depositary for delivery at the Principal Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Holder, by air courier, cable, telex or facsimile transmission.
Section 2.8 Additional Limitations on Execution and Delivery,
Transfer, etc. of Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the
-----------------------
execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
18
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Eligible Securities or
presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charges and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with respect to
Eligible Securities being deposited or withdrawn) and payment of any applicable
fees and charges of the Depositary as provided in Section 5.9 and Exhibit B
hereof, (ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.1
hereof, and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts or American Depositary Shares
or to the deposit of Eligible Securities or the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary and the Company
may establish consistent with the provisions of the applicable Receipt, this
Deposit Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against
----------------------
deposits of Eligible Securities generally or against deposits of particular
Eligible Securities may be suspended, or the deposit of particular Eligible
Securities may be refused, or the registration of transfer of Receipts in
particular instances may be refused, or the registration of transfers of
Receipts generally may be suspended, during any period when the transfer books
of the Company, the Depositary, a Registrar or the Eligible Securities Registrar
are closed or if any such action is deemed necessary or advisable by the
Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any government or governmental body or
commission or any securities exchange on which the ADSs or Eligible Securities
are listed, or under any provision of this Deposit Agreement or the applicable
Receipt(s) or, under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of
-----------------------
this Deposit Agreement or any Receipt(s) to the contrary, Holders are entitled
to surrender outstanding ADSs to withdraw the Deposited Securities at any time
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Eligible Securities in connection
with voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Section I.A.(l) of the General Instructions to Form
F-6 (as such General Instructions may be amended from time to time).
Section 2.9 Lost Receipts, etc. In case any Receipt shall be
------------------
mutilated, destroyed, lost, or stolen, the Depositary shall execute and deliver
a new Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in the case of a destroyed, lost or stolen
19
Receipt, in lieu of and in substitution for such destroyed, lost, or stolen
Receipt, after the Holder thereof (i) has submitted to the Depositary a written
request for such exchange and substitution before the Depositary has notice that
the Receipt has been acquired by a bona fide purchaser, (ii) has provided such
security or indemnity (including an indemnity bond) as may be required by the
Depositary to save it and any of its agents harmless, and (iii) has satisfied
any other reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss or
theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
Section 2.10 Cancellation and Destruction of Surrendered
-------------------------------------------
Receipts; Maintenance of Records. All Receipts surrendered to the Depositary
--------------------------------
shall be canceled by the Depositary. Canceled Receipts shall not be entitled to
any benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
Any ADSs held in book-entry form (i.e., through accounts at DTC) shall be deemed
canceled when the Depositary causes the number of ADSs evidenced by the Balance
Certificate to be reduced by the number of ADSs surrendered (without the need to
physically destroy the Balance Certificate). The Depositary agrees to maintain
records of all Receipts surrendered and Deposited Securities withdrawn,
substitute Receipts delivered and canceled or destroyed Receipts in accordance
with procedures ordinarily followed by such transfer agents located in The City
of New York, or as required by the laws or regulations governing the Depositary.
Upon the reasonable request of the Company, the Depositary shall provide a copy
of such records to the Company.
Section 2.11 Partial Entitlement ADSs. In the event any
------------------------
Eligible Securities are deposited which entitle the holders thereof to receive a
per-Deposited Security distribution or other entitlement in an amount different
from the Deposited Securities then on deposit (the Deposited Securities then on
deposit collectively, "Full Entitlement Deposited Securities" and the Deposited
Securities with different entitlement collectively, "Partial Entitlement
Deposited Securities"), the Depositary shall (i) cause the Custodian to hold
Partial Entitlement Deposited Securities separate and distinct from Full
Entitlement Deposited Securities, and (ii) subject to the terms of this Deposit
Agreement, issue ADSs and deliver ADRs representing Partial Entitlement
Deposited Securities which are separate and distinct from the ADSs and ADRs
representing Full Entitlement Deposited Securities, by means of separate CUSIP
numbering and legending (if necessary) ("Partial Entitlement ADSs/ADRs" and
"Full Entitlement ADSs/ADRs", respectively). If and when the Company informs the
Depositary in writing that the Partial Entitlement Eligible Securities become
Full Entitlement Eligible Securities, the Depositary shall (a) give notice
thereof to Holders of Partial Entitlement ADSs and give Holders of Partial
Entitlement ADRs the opportunity to exchange such Partial Entitlement ADRs for
Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Deposited Securities into the account of the Full Entitlement
Deposited Securities, and (c) take such actions as are necessary to remove the
distinctions between (i) the Partial Entitlement ADRs and ADSs, on the one hand,
and (ii) the Full Entitlement ADRs and ADSs on the other. Holders and Beneficial
Owners of Partial Entitlement ADSs shall only be entitled to the entitlements of
20
Partial Entitlement Deposited Securities. Holders and Beneficial Owners of Full
Entitlement ADSs shall be entitled only to the entitlements of Full Entitlement
Deposited Securities. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is authorized to take any and all other actions as may be necessary
(including, without limitation, making the necessary notations on Receipts) to
give effect to the terms of this Section 2.11. The Company agrees to give timely
written notice to the Depositary if any Eligible Securities issued or to be
issued are Partial Entitlement Eligible Securities and shall assist the
Depositary with the establishment of procedures enabling the identification of
Partial Entitlement Eligible Securities upon Delivery to the Custodian.
Section 2.12 Temporary ADSs. In the event that, in determining
--------------
the rights and obligations of parties hereto with respect to any Temporary ADSs,
any conflict arises between (a) the terms of this Deposit Agreement (other than
this Section 2.12) and (b) the terms of (i) the Temporary ADSs issued hereunder
as set forth in this Section 2.12 or (ii) the applicable Temporary ADR, the
terms and conditions set forth in this Section 2.12 or the applicable Temporary
ADR shall be controlling and shall govern the rights and obligations of the
parties to this Deposit Agreement pertaining to the Certificate of Payment, the
Temporary ADSs and the Temporary ADRs.
Whenever the Company proposes to issue any Certificate of
Payment eligible for deposit hereunder (in connection with the Offering or
otherwise), the Company shall timely notify the Depositary thereof and provide
the Depositary with written instructions to the effect that, inter alia, (i) the
Certificate of Payment has been or is to be issued pursuant to a bona fide
purchase of Shares from the Company, (ii) the Certificate of Payment is not, and
shall not be deemed to be upon its deposit, and the Shares issuable pursuant to
the terms of the Certificate of Payment will not be, Restricted Securities,
(iii) a description of the rights (if any) to any distribution upon Deposited
Securities to be made to Holders of Temporary ADSs representing such
Certificates of Payment upon the terms set forth in Article IV hereof, and (iv)
the date established by the Company upon which the Company shall convert or
cause to be converted the Certificate of Payment into Shares on its records and
on the records of the Eligible Securities Registrar.
Subject always to the laws and regulations of the Republic of
China, upon deposit of any Certificate of Payment hereunder and payment to the
Depositary of the charges of the Depositary for accepting a deposit, issuing
ADSs and issuing and delivering Receipts (as set forth in Section 5.9 and
Exhibit B hereto), the Depositary shall (i) cause the Custodian to hold such
---------
Certificate of Payment separate and distinct from the Shares, any other
Certificate(s) of Payment and any other Deposited Securities and (ii) issue and
deliver Temporary ADSs representing interests in the Certificate of Payment so
deposited. The Temporary ADSs so issued shall be identified and treated
separately and distinctly from any other ADSs representing Deposited Securities
hereunder by means, inter alia, of separate CUSIP numbering and legending (if
21
necessary). The Depositary may issue Temporary ADSs in one or multiple series as
the Depositary in its sole discretion deems necessary and appropriate. No
Temporary ADS shall be fungible with any other ADSs issued hereunder.
The Depositary shall deliver Temporary ADSs in book-entry form
only. No certificated Temporary ADRs will be issued except for a "Balance
Certificate" evidencing all Temporary ADSs held in DTC, which shall be
substantially in the form of Temporary ADR set forth in Exhibit A hereto, except
---------
as may be necessary to identify and treat the Temporary ADSs as separate and
distinct from any other ADSs issued under the terms of this Deposit Agreement.
The Depositary shall make arrangements for the acceptance of such Temporary ADSs
into DTC upon the terms set forth in Section 2.2(d) hereof. The Temporary ADSs
and the Temporary ADRs evidenced thereby are identical to and confer all of the
rights and obligations set forth herein relating to Receipts and ADSs
represented thereby except that (i) in accordance with the applicable laws and
regulations of the Republic of China, Holders of Temporary ADRs will have no
right to withdraw the Deposited Securities represented by their Temporary ADSs,
(ii) Temporary ADRs shall bear separate CUSIP numbers that shall be different
from any CUSIP number that is or may be assigned to the other ADSs issued
hereunder, (iii) neither Temporary ADSs nor interests in any Certificate of
Payment shall be eligible for any Pre-Cancellation Sale Transactions or
Pre-Release Transactions described in Section 5.10 hereof and (iv) in the event
that the Company makes any distributions upon Deposited Securities upon the
terms of Article IV of this Deposit Agreement, the Depositary shall make
distributions to Holders of Temporary ADSs on the basis of the distribution(s)
received from the Company in respect of the Certificate(s) of Payment
corresponding to the series of Temporary ADSs held by such Holder. Nothing
herein shall impose any obligation upon the Depositary to make any distributions
to Holders of any series of Temporary ADSs on the same basis as Holders of Share
ADSs or any other Series of Temporary ADSs issued hereunder.
The Company undertakes to make Shares available in exchange
for any specified Certificate of Payment, as soon as possible after the issuance
of the Certificate of Payment and to provide timely notice thereof to the
Depositary. Upon receipt of such notice from the Company, the Depositary shall
instruct the Custodian to surrender any such Certificate of Payment then
eligible for exchange to the Company against delivery of Shares to the
Depositary in exchange therefor. Upon receipt by the Depositary of (i) notice of
the exchange of Shares for such Certificate of Payment and (ii) confirmation
from the Company that the Shares so received rank in all respects pari passu
with the Deposited Securities evidenced by Share ADSs, the Depositary shall give
notice thereof to the applicable Holders of Temporary ADSs and thereafter
Temporary ADSs shall be eligible for exchange into Share ADSs. Interests in
Temporary ADSs in DTC will be automatically exchanged for beneficial interests
in Share ADSs as follows: with no further action by Holders, the Depositary
shall instruct DTC to automatically transfer any position held by a DTC
participant under the CUSIP number assigned to the Temporary ADSs to the CUSIP
number assigned to the Share ADSs. Holders and Beneficial Owners of such
Temporary ADSs shall thereafter be Holders and Beneficial Owners of Share ADSs
issued hereunder and shall have all the rights and obligations specified in this
22
Deposit Agreement and in the Receipts pertaining to Share ADSs. The Depositary
will charge no fee for the cancellation of the Temporary ADSs and issuance of
Share ADSs in exchange therefor.
Notwithstanding anything in the Deposit Agreement to the
contrary, the Depositary shall have no obligation to any party to exchange
Temporary ADSs for Share ADSs as provided herein unless and until, upon delivery
by the Depositary of the related Certificate of Payment, the Company shall have
delivered Shares in respect thereof to the Depositary.
Section 2.13 Restricted ADRs and Restricted ADSs. The
-----------------------------------
Depositary shall, at the request and expense of the Company, establish
procedures enabling the deposit hereunder of Shares that are Restricted
Securities in order to enable the holder of such Shares to hold its ownership
interests in such Restricted Securities in the form of ADSs issued under the
terms hereof (such Shares, "Restricted Shares"). Upon receipt of a written
request from the Company to accept Restricted Shares for deposit hereunder, the
Depositary agrees to establish procedures permitting the deposit of such
Restricted Shares and the issuance of Restricted ADSs representing such
deposited Restricted Shares (such ADSs, "Restricted ADSs", and the ADRs
evidencing such Restricted ADSs, the "Restricted ADRs"). The Company shall
assist the Depositary in the establishment of such procedures and agrees that it
shall take all commercially reasonable steps necessary and satisfactory to the
Depositary to insure that the establishment of such procedures does not violate
the provisions of the Securities Act or any other applicable laws. The
depositors of such Restricted Shares and the holders of the Restricted ADSs may
be required prior to the deposit of such Restricted Shares, the transfer of the
Restricted ADRs and the Restricted ADSs evidenced thereby or the withdrawal of
the Restricted Shares represented by Restricted ADSs to provide such written
certifications or agreements as the Depositary or the Company may require. The
Company shall provide to the Depositary in writing the legend(s) to be affixed
to the Restricted ADRs, which legends shall (i) be in a form reasonably
satisfactory to the Depositary and (ii) contain the specific circumstances under
which the Restricted ADRs and the Restricted ADSs represented thereby may be
transferred or the Restricted Shares withdrawn. The Restricted ADSs issued upon
the deposit of Restricted Shares shall be separately identified on the books of
the Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions or Pre-Cancellation Sales Transactions described in Section 5.10
hereof. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferable only by the holder thereof upon delivery to the Depositary
of (i) all documentation otherwise contemplated by this Deposit Agreement and
(ii) an opinion of counsel satisfactory to the Depositary setting forth, inter
-----
alia, the conditions upon which the Restricted ADR presented is, and the
----
Restricted ADSs evidenced thereby are, transferable by the holder thereof under
applicable securities laws and the transfer restrictions contained in the legend
set forth on the Restricted ADR presented for transfer. Except as set forth in
the Section 2.13, and except as required by applicable law, the Restricted ADRs
23
and the Restricted ADSs evidenced thereby shall be treated as ADRs and ADSs
issued and outstanding under the terms of this Deposit Agreement.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs
Section 3.1 Proofs, Certificates and Other Information. Any
------------------------------------------
person presenting Eligible Securities for deposit, any Holder and any Beneficial
Owner may be required, and every Holder and Beneficial Owner agrees, from time
to time to provide to the Depositary and the Custodian such proof of citizenship
or residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control and any other applicable regulatory
approval, legal or beneficial ownership of ADSs and Deposited Securities,
compliance with applicable laws, the terms of this Deposit Agreement or the
Receipt(s) evidencing the ADS(s) and the provisions of, or governing, the
Deposited Securities, to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Eligible Securities in registered form
presented for deposit, such information relating to the registration on the
books of the Company or of the Eligible Securities Registrar) as the Depositary
or the Custodian may deem necessary or proper or as the Company may reasonably
require by written request to the Depositary consistent with its obligations
under this Deposit Agreement and the applicable Receipt(s). The Depositary and
the Registrar, as applicable, may, and at the reasonable written request of the
Company shall, withhold the execution or delivery or registration of transfer of
any Receipt or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by the terms of
Section 7.8 hereof, the delivery of any Deposited Securities, or may refuse to
adjust its records, until such proof or other information is filed or such
certifications are executed, or such representations are made, or such other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval which it receives from Holders and Beneficial
Owners, and (ii) any other information or documents which the Company may
reasonably request and which the Depositary shall request and receive from any
Holder or Beneficial Owner or any person presenting Eligible Securities for
deposit or ADSs for cancellation, transfer or withdrawal. Nothing herein shall
obligate the Depositary to (i) obtain any information for the Company if not
provided by the Holders or Beneficial Owners, or (ii) verify or vouch for the
accuracy of the information so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. If any tax
-------------------------------------
or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any ADR or any Deposited Securities or American
Depositary Shares, such tax or other governmental charge shall be payable by the
Holders and Beneficial Owners to the Depositary. The Company, the Custodian
and/or the Depositary may withhold or deduct from any distributions made in
24
respect of Deposited Securities and may sell for the account of a Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, the Holder and the Beneficial Owner
remaining liable for any deficiency. The Custodian may refuse the deposit of
Eligible Securities and the Depositary may refuse to issue ADSs, to deliver
ADRs, register the transfer, split-up or combination of ADRs and (subject to
Section 7.8) the withdrawal of Deposited Securities until payment in full of
such tax, charge, penalty or interest is received. Every Holder and Beneficial
Owner agrees to indemnify the Depositary, the Company, the Custodian, and any of
their agents, officers, employees and Affiliates for, and to hold each of them
harmless from, any claims with respect to taxes (including applicable interest
and penalties thereon) arising from any tax benefit obtained for such Holder
and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of
Eligible Securities.
(a) Deposit of Shares. Each person depositing Shares under
-----------------
this Deposit Agreement shall be deemed thereby to represent and warrant that (i)
such Shares and the certificates therefor are duly authorized, validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of
any lien, encumbrance, security interest, charge, mortgage or adverse claim, and
are not, and the American Depositary Shares issuable upon such deposit will not
be, Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer
of such American Depositary Shares.
(b) Deposit of Certificate(s) of Payment. Whenever the Company
------------------------------------
shall deposit any Certificate of Payment under this Deposit Agreement the
Company shall be deemed thereby to represent and warrant that (i) such
Certificate of Payment is, and the Shares to be received in exchange for the
Certificate of Payment will be, duly authorized, validly issued, fully paid,
non-assessable and legally obtained, (ii) all preemptive (and similar) rights,
if any, with respect to such Certificate of Payment has been, and with respect
to the Shares to be received in exchange for the Certificate of Payment will
have been, validly waived or exercised, (iii) the Company has duly authorized
the issuance of the Shares to be delivered in exchange for the Payment
Certificate so presented for deposit, (iv) the Certificate of Payment presented
for deposit is, and the Shares to be deposited upon the exchange of the
Certificates of Payment for Shares will be, free and clear of any lien,
encumbrance, security interest, change, mortgage or adverse claim, and are not,
and the Temporary ADSs issuable upon such deposit will not be, Restricted
Securities and (v) the Certificate of Payment presented for deposit has not
been, and the Shares to be deposited upon the exchange for the Certificate of
Payment will not have been, stripped of any rights or entitlements. Such
25
representations and warranties shall survive the deposit of any Certificate of
Payment, the issuance and cancellation of Temporary ADSs in respect thereof and
the transfer of such Temporary ADSs.
If any such representations or warranties are false in any
way, the Depositary shall be authorized, at the cost and expense of the Company,
to take any and all actions necessary to correct the consequences thereof.
Section 3.4 Compliance with Information Requests.
------------------------------------
Notwithstanding any other provision of this Deposit Agreement or any Receipt(s),
each Holder and Beneficial Owner agrees to comply with requests from the Company
pursuant to applicable U.S. and Republic of China laws or regulations, the rules
and requirements of the TSE, and any other stock exchange on which the Eligible
Securities or ADSs are, or will be, registered, traded or listed or the Articles
of Incorporation of the Company, which are made to provide information, inter
alia, as to the capacity in which such Holder or Beneficial Owner owns American
Depositary Shares (and Eligible Securities or Deposited Securities, as the case
may be) and regarding the identity of any other person(s) interested in such
American Depositary Shares and the nature of such interest and various other
matters, whether or not they are Holders and/or Beneficial Owners at the time of
such request. The Depositary agrees to use its reasonable efforts to forward,
upon the request of the Company and at the Company's expense, any such request
from the Company to the Holders and to forward to the Company any such responses
to such requests received by the Depositary.
Section 3.5 Ownership Restrictions. Notwithstanding any other
----------------------
provision in this Deposit Agreement or any Receipt, the Company may restrict
transfers of the Shares, Eligible Securities or securities convertible into
Shares where the Company informs the Depositary that such transfer might result
in ownership of Shares exceeding limits imposed by applicable law, the SFC, the
TSE or the Articles of Incorporation of the Company. The Company may also
restrict, in such manner as it deems appropriate, transfers of the American
Depositary Shares where such transfer may result in the total number of Shares,
Deposited Securities, or securities convertible into Shares represented by the
American Depositary Shares owned by a single Holder or Beneficial Owner to
exceed any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including, but not limited to, the imposition
of restrictions on the transfer of American Depositary Shares, the removal or
limitation of voting rights or the mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Deposited Securities represented by the
American Depositary Shares held by such Holder or Beneficial Owner in excess of
such limitations, if and to the extent such disposition is permitted by
applicable law and the Articles of Incorporation of the Company.
26
ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Subject always to the laws and
------------------
regulations of the Republic of China, whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (on the terms described in Section 4.8), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
distribute promptly the amount thus received (net of (a) the applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders entitled thereto as of the ADS Record Date (if
applicable) in proportion to the number of American Depositary Shares
representing such Deposited Securities held as of the ADS Record Date (if
applicable). The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs outstanding at
the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request. The Depositary or the
Custodian, as the case may be, will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental agencies, and
the Depositary or the Custodian, as the case may be, or the Company or its agent
may file any such reports necessary to obtain benefits under the applicable tax
treaties for Holders of ADSs.
Section 4.2 Distribution in Eligible Securities. Subject
-----------------------------------
always to the laws and regulations of the Republic of China, if any distribution
upon any Deposited Securities consists of a dividend in, or free distribution
of, Eligible Securities, the Company shall cause such Eligible Securities Shares
to be deposited with the Custodian and registered, as the case may be, in the
name of the Depositary, the Custodian or their respective nominees. Upon receipt
of confirmation of such deposit from the Custodian, the Depositary shall
establish the ADS Record Date upon the terms described in Section 4.9 and either
(i) the Depositary shall, subject to Section 5.9 hereof and the laws and
regulations of the Republic of China, distribute to the Holders as of the ADS
Record Date in proportion to the number of American Depositary Shares held as of
27
the ADS Record Date, additional American Depositary Shares (of the applicable
series), which represent in the aggregate the number of Eligible Securities
received as such dividend, or free distribution, subject, however, in each case,
to the other terms of this Deposit Agreement (including, without limitation, the
limitations set forth in Article II hereof and (a) the applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and (b) taxes),
or (ii) if additional American Depositary Shares are not so distributed, each
American Depositary Share issued and outstanding after the ADS Record Date
shall, to the extent permissible by law, thenceforth also represent rights and
interests in the additional integral number of Shares distributed upon the
Deposited Securities represented thereby (subject, however, in each case, to the
laws and regulations of the Republic of China and net of (a) the applicable fees
and charges of, and reasonable expenses incurred by, the Depositary and (b)
taxes). In lieu of delivering fractional American Depositary Shares, the
Depositary shall sell the number of Eligible Securities or American Depositary
Shares, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms described in Section 4.1. In the
event that (x) the Depositary determines that any distribution in property
(including Eligible Securities) is subject to any tax or other governmental
charges which the Depositary is obligated to withhold, or (y) if the Company in
the fulfillment of its obligation under Section 5.7 hereof, has furnished an
opinion of U.S. counsel determining that Eligible Securities must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), or (z) the
deposit of Eligible Securities is not permitted under the laws or regulations of
the Republic of China, the Depositary may dispose of all or a portion of such
property (including Eligible Securities and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable, and the Depositary shall distribute
the net proceeds of any such sale (after deduction of such (a) taxes and (b)
fees and charges of, and reasonable expenses incurred by, the Depositary) to
Holders entitled thereto upon the terms described in Section 4.1. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of this Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Eligible
------------------------------------------
Securities. Subject always to the laws and regulations of the Republic of China,
----------
whenever the Company intends to distribute a dividend payable at the election of
the holders of Eligible Securities in cash or in additional Eligible Securities,
the Company shall give timely notice thereof to the Depositary prior to the
proposed distribution stating whether or not it wishes such elective
distribution to be made available to Holders of ADSs. Upon receipt of notice
indicating that the Company wishes such elective distribution to be made
available to Holders of ADSs, the Depositary shall consult with the Company to
determine, and the Company shall assist the Depositary in its determination,
whether it is lawful and reasonably practicable to make such elective
distribution available to the Holders of ADSs. The Depositary shall make such
elective distribution available to Holders only if (i) the Depositary shall have
determined that such distribution is reasonably practicable and (ii) the
Depositary shall have received satisfactory documentation within the terms of
Section 5.7. If the above conditions are not satisfied, the Depositary shall, to
the extent permitted by law, distribute to the Holders, on the basis of the same
determination as is made in the Republic of China in respect of the Deposited
28
Securities for which no election is made, either cash upon the terms described
in Section 4.1 or additional ADSs representing such additional Eligible
Securities upon the terms described in Section 4.2. If the above conditions are
satisfied, the Depositary shall establish an ADS Record Date (on the terms
described in Section 4.9) and establish procedures to enable Holders to elect
the receipt of the proposed dividend in cash or in additional ADSs. The Company
shall assist the Depositary in establishing such procedures to the extent
necessary. If a Holder elects to receive the proposed dividend in cash, the
dividend shall be distributed upon the terms described in Section 4.1, or in
ADSs, the dividend shall be distributed upon the terms described in Section 4.2.
Nothing herein shall obligate the Depositary to make available to Holders a
method to receive the elective dividend in Eligible Securities (rather than
ADSs). There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive elective distributions on
the same terms and conditions as the holders of Deposited Securities.
Section 4.4 Distribution of Rights to Purchase Additional ADSs
--------------------------------------------------
(a) Distribution to ADS Holders. Subject always to the laws
---------------------------
and regulations of the Republic of China, whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
Eligible Securities, the Company shall give timely notice thereof to the
Depositary stating whether or not it wishes such rights to be made available to
Holders of ADSs. Upon receipt of a notice indicating that the Company wishes
such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall make such
rights available to Holders only if (i) the Company shall have timely requested
that such rights be made available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth above are
not satisfied or if the Company requests that the rights not be made available
to Holders of ADSs, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date (upon the
terms described in Section 4.9) and establish procedures to (x) distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise such rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the
valid exercise of such rights. The Company shall assist the Depositary to the
extent necessary in establishing such procedures. Nothing herein shall obligate
the Depositary to make available to the Holders a method to exercise rights to
subscribe for Eligible Securities (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request
--------------
the Depositary to make the rights available to Holders or requests that the
rights not be made available to Holders, (ii) the Depositary fails to receive
29
satisfactory documentation within the terms of Section 5.7 or determines it is
not lawful or not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine in its discretion but after
consultation with the Company whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public or private sale) as it may deem practical. The Company
shall assist the Depositary to the extent necessary to determine such legality
and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms set forth in Section
4.1.
(c) Lapse of Rights. If the Depositary is unable to make any
---------------
rights available to Holders upon the terms described in Section 4.4(a) or to
arrange for the sale of the rights upon the terms described in Section 4.4(b),
the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4,
if registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary with opinions of counsel for
the Company in the United States and counsel to the Company in any other
applicable country in which rights would be distributed, in each case
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws.
In the event that the Company, the Depositary or the Custodian
shall be required to withhold and does withhold from any distribution of
property (including rights) an amount on account of taxes or other governmental
charges, the amount distributed to the Holders of American Depositary Shares
representing such Deposited Securities shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Eligible Securities and rights to subscribe therefor) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Eligible Securities and rights to subscribe therefor) in such amounts
and in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
30
There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to receive or exercise
rights on the same terms and conditions as the holders of Deposited Securities
or be able to exercise such rights. Nothing herein shall obligate the Company to
file any registration statement in respect of any rights or Eligible Securities
or other securities to be acquired upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Eligible Securities
--------------------------------------------------
or Rights to Purchase Eligible Securities. (a) Whenever the Company intends to
-----------------------------------------
distribute to the holders of Deposited Securities property other than cash,
Eligible Securities or rights to purchase additional Eligible Securities, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of ADSs. Upon
receipt of a notice indicating that the Company wishes such distribution to be
made to Holders of ADSs, the Depositary shall consult with the Company, and the
Company shall assist the Depositary, to determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7, and (iii) the
Depositary shall have determined that such distribution is lawful and reasonably
practicable.
(b) Upon receipt of satisfactory documentation and the request
of the Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary shall distribute
the property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and reasonable
expenses incurred by, the Depositary, and (ii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including by public or private
sale) as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make
such distribution to Holders or requests the Depositary not to make such
distribution to Holders, (ii) the Depositary does not receive satisfactory
documentation within the terms of Section 5.7, or (iii) the Depositary
determines that all or a portion of such distribution is not reasonably
practicable, the Depositary shall sell or cause such property to be sold in a
public or private sale, at such place or places and upon such terms as it may
deem practicable and shall (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of, and
reasonable expenses incurred by, the Depositary and (b) taxes) to the Holders as
of the ADS Record Date upon the terms of Section 4.1. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances.
31
Section 4.6 Distributions with Respect to Deposited Securities
--------------------------------------------------
in Bearer Form. Subject always to the laws and regulations of the Republic of
China and to the terms of this Article IV, distributions in respect of Deposited
Securities that are held by the Depositary in bearer form shall be made to the
Depositary for the account of the respective Holders of Receipts with respect to
which any such distribution is made upon due presentation by the Depositary or
the Custodian to the Company of any relevant coupons, talons, or certificates.
The Company shall promptly notify the Depositary of such distributions. The
Depositary or the Custodian shall promptly present such coupons, talons or
certificates, as the case may be, in connection with any such distribution.
Section 4.7 Redemption. If the Company intends to exercise any
----------
right of redemption in respect of any of the Deposited Securities, the Company
shall give timely notice thereof to the Depositary which notice shall set forth
the particulars of the proposed redemption. Upon receipt of (i) such notice and
(ii) satisfactory documentation given by the Company to the Depositary within
the terms of Section 5.7, and only if the Depositary shall have determined that
such proposed redemption is reasonably practicable, the Depositary shall deliver
to each Holder a notice setting forth the intended exercise by the Company of
the redemption rights and any other particulars set forth in the Company's
notice to the Depositary. The Depositary shall instruct the Custodian to present
to the Company the Deposited Securities in respect of which redemption rights
are being exercised against payment of the applicable redemption price. Upon
receipt of confirmation from the Custodian that the redemption has taken place
and that funds representing the redemption price have been received, the
Depositary shall convert, transfer, and distribute the proceeds (net of
applicable (a) fees and charges of, and the expenses incurred by, the
Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of such
ADSs by Holders thereof and the terms set forth in Sections 4.1 and 6.2 hereof.
If less than all outstanding Deposited Securities are redeemed, the ADSs to be
retired will be selected by lot or on a pro rata basis, as may be determined by
the Depositary. The redemption price per ADS shall be the per Deposited Security
amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
Section 4.8 hereof and the applicable fees and charges of, and reasonable
expenses incurred by, the Depositary, and taxes) multiplied by the number of
Deposited Securities represented by each ADS redeemed.
Section 4.8 Conversion of Foreign Currency. Subject to any
------------------------------
restrictions imposed by ROC law and regulations, including, without limitation,
receipt of foreign exchange approval from the Central Bank of China for
conversion of funds from and/or into NT dollars whenever the Depositary or the
Custodian shall receive Foreign Currency, by way of dividends or other
distributions or the net proceeds from the sale of securities, property or
rights, which in the judgment of the Depositary can at such time be converted on
a practicable basis, by sale or in any other manner that it may determine in
accordance with applicable law, into Dollars transferable to the United States
and distributable to the Holders entitled thereto, the Depositary shall, subject
to the laws and regulations of the Republic of China, convert or cause to be
converted, by sale or in any other manner that it may determine, such Foreign
Currency into Dollars, and shall distribute such Dollars (net of any applicable
32
fees, any reasonable and customary expenses incurred in such conversion and any
reasonable expenses incurred on behalf of the Holders in complying with currency
exchange control or other governmental or regulatory requirements) in accordance
with the terms of the applicable sections of this Deposit Agreement. If the
Depositary shall have distributed warrants or other instruments that entitle the
holders thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon surrender thereof for
cancellation, in either case without liability for interest thereon. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of any application of
exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to
a particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem appropriate. If at
any time the Depositary shall determine that in its judgment the conversion of
any Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practical or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom this is lawful and practicable or (iii)
hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to
receive the same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary
-------------------------
shall receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Eligible Securities, rights, or other entitlement
distribution), or whenever for any reason the Depositary causes a change in the
number of Deposited Securities that are represented by each American Depositary
Share, or whenever the Depositary shall receive notice of any meeting, or
solicitation of consents or of proxies, of holders of Deposited Securities, or
whenever the Depositary shall find it necessary or convenient in connection with
the giving of any notice, solicitation of any consent or any other matter, the
Depositary shall fix a record date (the "ADS Record Date") for the determination
of the Holders of Receipts who shall be entitled to receive such distribution,
to give instructions for the exercise of voting rights at any such meeting, to
give or withhold such consent, to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Deposited Securities represented by each American Depositary
Share. The Depositary shall establish the ADS Record Date as closely as possible
to the applicable record date for the Deposited Securities (if any) set by the
Company in the Republic of China. Subject to applicable law and the provisions
of Section 4.1 through 4.8 and to the other terms and conditions of this Deposit
Agreement, only the Holders of Receipts at the close of business in New York on
such ADS Record Date shall be entitled to receive such distribution, to give
33
such voting instructions, to receive such notice or solicitation, or otherwise
take action. The Depositary shall promptly notify the New York Stock Exchange,
Inc. of any action to fix an ADS Record Date or to close the transfer books for
the ADSs.
Section 4.10 Voting of Deposited Securities.
------------------------------
(a) Voting by Shareholders. The ROC Company Law and the
----------------------
Articles of Incorporation of the Company, in each case, as in effect on the date
hereof, provide that: (i) a holder of Shares (including holders of interests in
any Certificate of Payment evidencing the irrevocable right to receive Shares)
is entitled to one vote for each Share held, except that the number of votes of
a holder of more than 3% of the total outstanding Shares is discounted by the
Company by a factor of 0.1% of that portion of the Shares held in excess of 3%
(e.g., a holder of 10% of the total outstanding Shares would be permitted to
exercise voting rights only with respect of a 9.93% of such Shares), (ii) the
election of directors and supervisors takes place by means of cumulative voting
and (iii) a shareholder must, as to all matters subject to a vote of
shareholders (other than the election of directors and supervisors), exercise
the voting rights for all Shares held by such shareholder in the same manner
(e.g., a holder of 1,000 Shares cannot split his/her votes but must vote all
1,000 Shares in the same manner except in the event or cumulative voting for an
election of directors and supervisors). The voting rights attaching to the
Deposited Securities must be exercised by, or on behalf of, the Depositary, as
representative of the Holders, collectively in the same manner, except in the
case of an election of directors and supervisors, which shall be on a cumulative
basis. Deposited Securities which have been withdrawn from the ADR Facilities
and timely transferred on the Company's register of shareholders to a person
other than the Depositary may be voted by the registered holder(s) thereof
directly, subject, in each case, to the limitations of ROC Law and the Articles
of Incorporation of the Company. Holders may not receive sufficient advance
notice of shareholders' meetings to enable them to timely withdraw the Deposited
Securities and vote at such meetings and may not be able to re-deposit the
withdrawn securities under the terms of the Deposit Agreement.
(b) Voting by ADS Holders. Holders of ADSs have no individual
---------------------
voting rights with respect to the Deposited Securities represented by their
ADSs. Each Holder shall be deemed, by acceptance of ADSs or acquisition of any
beneficial interest therein, to have authorized and directed the Depositary,
without liability, to appoint the Chairman of the Company (or his/her
designate), as representative of the Depositary, the Custodian or the nominee
who is registered in the ROC as representative of the Holders in respect of the
Deposited Securities (the "Registered Holder"), to vote the Shares or other
Deposited Securities in accordance with the terms hereof.
The Company agrees to timely notify the Depositary of any
proposed shareholders' meeting and to provide to the Depositary in New York, at
least 24 calendar days before any shareholders' meeting, sufficient copies as
the Depositary may reasonably request of English language translations of the
Company's notice of shareholders' meeting and the agenda of the materials to be
34
voted on (in the form the Company generally makes available to holders of Shares
in the ROC), including, without limitation, a list of candidates proposed by the
Company for an election of directors or supervisors (such materials
collectively, the "Shareholder Notice"). As soon as practicable after receipt by
the Depositary of the requisite number of Shareholder Notices, the Depositary
shall establish the ADS Record Date (upon the terms of Section 4.9 hereof) and
shall, at the Company's expense and, provided no U.S. legal prohibitions exist,
deliver to Holders as of the applicable ADS Record Date, (i) the Shareholder
Notice, (ii) a depositary notice setting forth the manner in which Holders of
ADSs may instruct the Depositary to cause the Deposited Securities represented
by their ADSs to be voted under the terms of this Deposit Agreement including, a
description of the Management Proxy (as defined below), together with a form of
voting instructions and/or other means to provide voting instructions (the
depositary notice and the related materials prepared by the Depositary
collectively, the "Depositary Notice"). The Depositary is under no obligation to
deliver the Shareholder Notice and the Depositary Notice to Holders if the
Company has failed to provide to the Depositary in New York the requisite number
of Shareholder Notices at least 24 calendar days prior to the date of any
shareholders' meeting. If the Depositary has not delivered the Shareholder
Notice or Depositary Notice to Holders, it will endeavor to cause all Deposited
Securities represented by ADRs to be present at the relevant Shareholders'
meeting insofar as practicable and permitted under applicable law but will not
cause the Shares or other Deposited Securities to be voted; provided, however,
--------- --------
that the Depositary may determine, at its sole discretion, to send such
Shareholder Notice and Depositary Notice to Holders and/or cause the Shares or
other Deposited Securities to be voted as it deems appropriate. There can be no
assurance that Holders generally or any Holder in particular will receive
Shareholder Notices and Depositary Notices with sufficient time to enable the
return of voting instructions to the Depositary in a timely manner.
Notwithstanding anything else contained in this Deposit
Agreement, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Shares or other Deposited Securities if the taking of such action would violate
U.S. laws.
(c) Voting of Deposited Securities Upon ADS Holders'
-----------------------------------------------
Instructions. If Holders of ADSs together holding at least 51% of all the ADSs
(including Temporary ADSs) outstanding as of the relevant ADS Record Date shall
instruct the Depositary, prior to the date established for such purpose by the
Depositary, to vote in the same manner in respect of one or more resolutions to
be proposed at a shareholders' meeting (including resolutions for the election
of directors and/or supervisors), the Depositary shall notify to the Chairman of
the Company (or his/her designate) and appoint the Chairman of the Company (or
his/her designate) as the representative of the Depositary and the Registered
Holders to attend such shareholders' meeting and vote all Deposited Securities
evidenced by ADSs then outstanding (including Temporary ADSs) in the manner so
instructed by such Holders. If voting instructions are received by the
Depositary on or before the date established by the Depositary for the receipt
of such instructions from any Holder as of the ADS Record Date, which are signed
but without further indication as to voting instructions, the Depositary shall
35
deem such Holder to have instructed a vote in favor of the items set forth in
such instructions. The Depositary and Custodian shall not have any obligation to
monitor, and shall not incur any liability for, the actions, or the failure to
act, of the Chairman of the Company (or his/her designate) as representative of
the Registered Holder.
(d) Management Proxy. If, for any reason (other than a failure
----------------
by the Company to supply the requisite number of Shareholder Notices to the
Depositary within the requisite time period provided in this Section 4.10) the
Depositary has not, prior to the date established for such purpose by the
Depositary received instructions from Holders together holding at least 51% of
all ADSs (including Temporary ADSs) outstanding at the relevant ADS Record Date,
to vote in the same manner in respect of any resolution (including resolutions
for the election of directors and/or supervisors), then, subject to the
following paragraph, the Holders shall be deemed to have authorized and directed
the Depositary to give a discretionary proxy (a "Management Proxy") to the
Chairman of the Company (or his/her designate) as the representative of the
Registered Holder to attend and vote at such meeting all the Deposited
Securities represented by ADSs then outstanding (including Temporary ADSs) in
his or her discretion. In such circumstances, the Chairman of the Company (or
his/her designate) shall be free to exercise the votes attaching to the
Deposited Securities in any manner he or she wishes, which may not be in the
interests of the Holders.
The Depositary's grant of a Management Proxy in the manner and
circumstances described in the preceding paragraph shall be subject to the
receipt by the Depositary prior to each shareholders' meeting of an opinion of
ROC counsel addressed to, and in form and substance satisfactory to, the
Depositary to the effect that under ROC law (i) the arrangements relating to the
Management Proxy are permissible, and (ii) the Depositary will not be deemed to
be authorized to exercise any discretion when causing the voting in accordance
with this Section 4.10 and will not be subject to any potential liability under
ROC law for losses arising from such voting. In the event the Depositary does
not receive such opinion, the Depositary will not grant the Management Proxy but
will cause the Deposited Securities to be present at the shareholders' meeting
to the extent practicable and permitted by applicable law but will not cause the
Deposited Securities to be voted or the Management Proxy to be granted.
The Depositary shall not, and the Depositary shall ensure that
the Custodian and its nominees do not, vote or attempt to exercise the right to
vote that attaches to the Shares or other Deposited Securities, other than in
accordance with instructions given in accordance with this Section 4.10. The
terms of this Section 4.10 may be amended from time to time in accordance with
the terms of this Deposit Agreement. By continuing to hold ADSs after the
effective time of such amendment all Holders and Beneficial Owners shall be
deemed to have agreed to the terms of this Section 4.10 as so amended.
Section 4.11 Changes Affecting Deposited Securities. Upon any
--------------------------------------
change in nominal or par value, split-up, cancellation, consolidation or any
other reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
36
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares representing
the right to receive such additional or replacement securities, as applicable.
The Depositary may, with the Company's approval, and shall, if the Company shall
so request, subject to the terms of the Deposit Agreement and receipt of an
opinion of counsel to the Company provided pursuant to Section 5.7 hereof and
satisfactory to the Depositary that such distributions are not in violation of
any applicable laws or regulations, execute and deliver additional Receipts as
in the case of a dividend of Eligible Securities, or call for the surrender of
outstanding Receipts to be exchanged for new Receipts, in either case, as well
as in the event of newly deposited Shares, with necessary modifications to the
form of Receipt contained in Exhibit A hereto, specifically describing such new
---------
Deposited Securities or corporate change. The Company agrees to, jointly with
the Depositary, amend the Registration Statement on Form F-6 as filed with the
Commission to permit the issuance of such new form of Receipts. Notwithstanding
the foregoing, in the event that any security so received may not be lawfully
distributed to some or all Holders, the Depositary may, with the Company's
approval, and shall, if the Company requests, subject to receipt of an opinion
of Company's counsel satisfactory to the Depositary that such action is not in
violation of any applicable laws or regulations, sell such securities at public
or private sale, at such place or places and upon such terms as it may deem
proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and reasonable expenses incurred by, the Depositary and (b) taxes)
for the account of the Holders otherwise entitled to such securities upon an
averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
Section 4.12 Available Information. From and after the date
---------------------
hereof, the Company is subject to the periodic reporting requirements of the
Exchange Act and accordingly files certain information with the Commission.
These reports and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at Judiciary Plaza, 450 Fifth
Street, N.W., Washington D.C. 20549 and at the Commission's New York City office
located at Seven World Trade Center, 13th Floor, New York, New York 10048.
Section 4.13 Reports. The Depositary shall make available for
-------
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either of
them as the holder of the Deposited Securities and (b) made generally available
37
to the holders of such Deposited Securities by the Company. The Depositary shall
also mail to Holders copies of such reports when furnished by the Company
pursuant to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by
---------------
the Company, the Depositary shall furnish to it a list, as of a recent date, of
the names, addresses and holdings of American Depositary Shares of all Holders.
Section 4.15 Taxation. The Depositary will, and will instruct
--------
the Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of American Depositary Shares may
be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any
distribution any amount on account of taxes or governmental charges, or pays any
other tax in respect of such distribution (i.e., stamp duty tax, capital gains
or other similar tax), the Company shall (and shall cause such agent to) remit
promptly to the Depositary information about such taxes or governmental charges
withheld or paid, and, if so requested, the tax receipt (or other proof of
payment to the applicable governmental authority) therefor, in each case, in a
form satisfactory to the Depositary. The Depositary shall, to the extent
required by U.S. law, report to Holders any taxes withheld by it or the
Custodian, and, if such information is provided to it by the Company, any taxes
withheld by the Company. The Depositary and the Custodian shall not be required
to provide the Holders with any evidence of the remittance by the Company (or
its agents) of any taxes withheld, or of the payment of taxes by the Company,
except to the extent the evidence is provided by the Company to the Depositary.
Neither the Depositary nor the Custodian shall be liable for the failure by any
Holder or Beneficial Owner to obtain the benefits of credits on the basis
non-U.S. tax paid against such Holder's or Beneficial Owner's income tax
liability.
38
The Depositary is under no obligation to provide the Holders
and Beneficial Owners with any information about the tax status of the Company.
The Depositary shall not incur any liability for any tax consequences that may
be incurred by Holders and Beneficial Owners on account of their ownership of
the American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign Personal Holding Company," or as a "Passive Foreign Investment Company"
(in each case as defined in the U.S. Internal Revenue Code and the regulations
issued thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the
-----------------------------------------------
Registrar. Until termination of this Deposit Agreement in accordance with its
---------
terms, the Registrar shall maintain in the Borough of Manhattan, The City of New
York, an office and facilities for the execution and delivery, registration of
issuances, registration of transfers, combination and split-up of Receipts, the
surrender of Receipts for the purpose of withdrawal of Deposited Securities in
accordance with the provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of
issuances and transfers of Receipts which at all reasonable times shall be open
for inspection by the Company and by the Holders of such Receipts, provided that
such inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Section 7.8 hereof.
If any Receipts or the American Depositary Shares evidenced
thereby are listed on one or more stock exchanges or automated quotation systems
in the United States, the Depositary shall act as Registrar or, with the written
approval of the Company, which approval shall not be unreasonably withheld,
appoint a Registrar or one or more co-registrars for registration of Receipts
and transfers, combinations and split-ups, and to countersign such Receipts in
accordance with any requirements of such exchanges or systems. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by the
Depositary after consultation with the Company or upon the reasonable request of
the Company.
Section 5.2 Exoneration. Neither the Depositary nor the
-----------
Company shall be obligated to do or perform any act which is inconsistent with
the provisions of this Deposit Agreement or incur any liability (i) if the
39
Depositary or the Company shall be prevented or forbidden from, or delayed in,
doing or performing any act or thing required by the terms of this Deposit
Agreement, by reason of any provision of any present or future law or regulation
of the United States, the Republic of China or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or on
account of the possible criminal or civil penalties or restraint, or by reason
of any provision, present or future of the Articles of Incorporation of the
Company or any provision of or governing any Deposited Securities, or by reason
of any act of God or war or other circumstances beyond its control (including,
without limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Articles of
Incorporation of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any consequential or punitive damages for any breach of the terms of this
Deposit Agreement.
The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
No disclaimer of liability under the Securities Act is
intended by any provision of this Deposit Agreement.
Section 5.3 Standard of Care. The Company and its agents
----------------
assume no obligation and shall not be subject to any liability under this
Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that the Company and its agents agree to perform their
obligations specifically set forth in this Deposit Agreement without negligence
or bad faith.
The Depositary and its agents assume no obligation and shall
not be subject to any liability under this Deposit Agreement or the Receipts to
Holders or Beneficial Owners or other persons, except that the Depositary and
its agents agree to perform their obligations specifically set forth in this
Deposit Agreement without negligence or bad faith. The Depositary and the
Company undertake to perform such duties and only such duties as are
specifically set forth in this Deposit Agreement, and no implied covenants and
obligations should be read into this Deposit Agreement against the Depositary or
the Company or their respective agents.
40
Without limitation of the foregoing, neither the Depositary,
nor the Company, nor any of their respective controlling persons, or agents,
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
Receipts, which in its opinion may involve it in expense or liability, unless
indemnity reasonably satisfactory to it against all expense (including
reasonable fees and disbursements of counsel) and liability be furnished as
often as may be required (and no Custodian shall be under any obligation
whatsoever with respect to such proceedings, the responsibility of the Custodian
being solely to the Depositary).
The Depositary and its agents shall not be liable for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any vote is cast or the effect of any vote, provided
that any such action or omission is in good faith and in accordance with the
terms of this Deposit Agreement. The Depositary shall not incur any liability
for any failure to determine that any distribution or action may be lawful or
reasonably practicable, for the content of any information submitted to it by
the Company for distribution to the Holders or for any inaccuracy of any
translation thereof, for any investment risk associated with acquiring an
interest in the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership of
ADSs, Shares or Deposited Securities, for the credit-worthiness of any third
party, for allowing any rights to lapse upon the terms of this Deposit
Agreement, for the failure or timeliness of any notice from the Company or for
the failure of the Company to exchange any Certificate of Payment into Shares.
The Depositary shall not be obligated in any way to monitor or enforce the
obligations of the Company, including, without limitation, in respect of any
Certificate of Payment, the conversion of such Certificate of Payment into
Shares.
Section 5.4 Resignation and Removal of the Depositary;
-----------------------------------------
Appointment of Successor Depositary. The Depositary may at any time resign as
-----------------------------------
Depositary hereunder by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 hereof), or (ii) the appointment by
the Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by
written notice of such removal, which removal shall be effective on the earlier
of (i) the 60th day after delivery thereof to the Depositary (whereupon the
Depositary shall be entitled to take the actions contemplated in Section 6.2
hereof), or (ii) upon the appointment by the Company of a successor depositary
and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
41
be required by the Company to execute and deliver to its immediate predecessor
and to the Company an instrument in writing accepting its appointment hereunder,
and thereupon such successor depositary, without any further act or deed (except
as required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its immediate predecessor (other than as
contemplated in Sections 5.8 and 5.9). The immediate predecessor depositary,
upon payment of all sums due it and on the written request of the Company shall,
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in Sections
5.8 and 5.9), (ii) duly assign, transfer and deliver all right, title and
interest to the Deposited Securities to such successor, and (iii) deliver to
such successor a list of the Holders of all outstanding Receipts and such other
information relating to Receipts and Holders thereof as the successor may
reasonably request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders.
Any corporation 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 Custodian. The Depositary has initially
-------------
appointed Citibank, N.A., Taipei Branch as Custodian for the purpose of this
Deposit Agreement. The Custodian or its successors in acting hereunder shall be
subject at all times and in all respects to the direction of the Depositary for
the Shares for which the Custodian acts as custodian and shall be responsible
solely to it. If any Custodian resigns or is discharged from its duties
hereunder with respect to any Deposited Securities and no other Custodian has
previously been appointed hereunder, the Depositary shall promptly appoint a
substitute custodian that is organized under the laws of the Republic of China.
The Depositary shall require such resigning or discharged Custodian to deliver
the Deposited Securities held by it, together with all such records maintained
by it as Custodian with respect to such Deposited Securities as the Depositary
may request, to the Custodian designated by the Depositary. Whenever the
Depositary determines, in its discretion, that it is appropriate to do so, it
may appoint an additional custodian with respect to any Deposited Securities, or
discharge the Custodian with respect to any Deposited Securities and appoint a
substitute custodian, which shall thereafter be Custodian hereunder with respect
to the Deposited Securities. Immediately upon any such change, the Depositary
shall give notice thereof in writing to all Holders of Receipts, each other
Custodian and the Company.
Upon the appointment of any successor depositary, any
Custodian then acting hereunder shall, unless otherwise instructed by the
Depositary, continue to be the Custodian of the Deposited Securities without any
further act or writing, and shall be subject to the direction of the successor
depositary. The successor depositary so appointed shall, nevertheless, on the
written request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete power
and authority to act on the direction of such successor depositary.
42
Section 5.6 Notices and Reports. On or before the first date
-------------------
on which the Company gives notice, by publication or otherwise, of any meeting
of holders of Deposited Securities, or of any adjourned meeting of such holders,
or of the taking of any action by such holders other than at a meeting, or of
the taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company shall
transmit to the Depositary and the Custodian a copy of the notice thereof in the
English language but otherwise in the form given or to be given to holders of
Deposited Securities. The Company shall also furnish to the Custodian and the
Depositary a summary, in English, of any applicable provisions or proposed
provisions of the Articles of Incorporation of the Company that may be relevant
or pertain to such notice of meeting or be the subject of a vote thereat. The
Depositary shall arrange, at the request of the Company and at the Company's
expense, for the mailing of copies thereof to all Holders or make such notices,
reports and other communications available to all Holders on a basis similar to
that for holders of Deposited Securities or on such other basis as the Company
may advise the Depositary or as may be required by any applicable law,
regulation or stock exchange requirement. The Company has delivered to the
Depositary and the Custodian a copy of the Company's Articles of Incorporation
along with the provisions of or governing the Deposited Securities, and promptly
upon any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such amendment thereto or change therein.
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The Depositary will, at the expense of the Company, make
available a copy of any such notices, reports or communications issued by the
Company and delivered to the Depositary for inspection by the Holders of the
Receipts evidencing the American Depositary Shares governed by such provisions
at the Depositary's Principal Office, at the office of the Custodian and at any
other designated transfer office.
Section 5.7 Issuance of Additional Eligible Securities, ADSs,
------------------------------------------------
etc. The Company agrees that in the event it or any of its Affiliates proposes
---
(i) an issuance, sale or distribution of additional Eligible Securities (ii) an
offering of rights to subscribe for Eligible Securities, (iii) an issuance of
securities convertible into or exchangeable for Eligible Securities, (iv) an
issuance of rights to subscribe for securities convertible into or exchangeable
for Eligible Securities, (v) an elective dividend of cash or Eligible
Securities, (vi) a redemption of Deposited Securities, (vii) a meeting of
holders of Deposited Securities, or solicitation of consents or proxies,
relating to any reclassification of securities, merger or consolidation or
transfer of assets, or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain legal advice and take all steps necessary
to ensure that the application of the proposed transaction to Holders and
Beneficial Owners does not violate the laws and regulations of the Republic of
China and the registration provisions of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the Exchange Act or the securities laws of the states of the
United States). In support of the foregoing, the Company will, at the request of
the Depositary, furnish to the Depositary (a) a written opinion of U.S. counsel
43
(reasonably satisfactory to the Depositary) stating whether or not application
of such transaction to Holders and Beneficial Owners (1) requires a registration
statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of ROC
counsel stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of the Republic of
China; provided however, that no such opinion shall be required in the event of
an issuance of Eligible Securities as a bonus, share split or similar event or
(2) all requisite regulatory consents and approvals have been obtained in the
Republic of China. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence reasonably satisfactory to it that such
registration statement has been declared effective. If, being so advised by
counsel, the Company determines that a transaction is required to be registered
under the Securities Act, the Company will either (i) register such transaction
to the extent necessary, (ii) alter the terms of the transaction to avoid the
registration requirements of the Securities Act or (iii) direct the Depositary
to take specific measures, in each case as contemplated in this Deposit
Agreement, to prevent such transaction from violating the registration
requirements of the Securities Act.
The Company agrees with the Depositary that neither the
Company nor any of its Affiliates will at any time (i) deposit any Eligible
Securities, either upon original issuance or upon a sale of Eligible Securities
previously issued and reacquired by the Company or by any such Affiliate, or
(ii) issue additional Eligible Securities, rights to subscribe for such Eligible
Securities, securities convertible into or exchangeable for Eligible Securities
or rights to subscribe for such securities, unless such transaction and the
securities issuable in such transaction are exempt from registration under the
Securities Act and, if applicable, the Exchange Act or have been registered
under the Securities Act and, if applicable, the Exchange Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit
Agreement, nothing in this Deposit Agreement shall be deemed to obligate the
Company to file any registration statement in respect of any proposed
transaction.
Section 5.8 Indemnification. The Depositary agrees to
---------------
indemnify the Company and its directors, officers, employees, agents and
Affiliates against, and hold each of them harmless from, any direct loss,
liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) which may arise out of
acts performed or omitted by the Depositary under the terms hereof due to the
negligence or bad faith of the Depositary.
The Company agrees to indemnify the Depositary, the Custodian
and any of their respective directors, officers, employees, agents and
Affiliates against, and hold each of them harmless from, any direct loss,
liability, tax, charge or expense of any kind whatsoever (including, but not
limited to, the reasonable fees and expenses of counsel) that may arise (a) out
of or in connection with any offer, issuance, sale, resale, transfer, deposit or
44
withdrawal of Receipts, American Depositary Shares, the Eligible Securities or
Deposited Securities, as the case may be, (b) out of or as a result of any
offering documents in respect thereof or (c) out of acts performed or omitted,
including, but not limited to, any delivery by the Depositary on behalf of the
Company of information regarding the Company in connection with this Deposit
Agreement, the Receipts, the American Depositary Shares, the Eligible
Securities, or any Deposited Securities, in any such case (i) by the Depositary,
the Custodian or any of their respective directors, officers, employees, agents
and Affiliates, except to the extent such loss, liability, tax, charge or
expense is due to the negligence or bad faith of any of them, or (ii) by the
Company or any of its directors, officers, employees, agents and Affiliates
except to the extent that such liability or expense arises out of or is based
upon an untrue statement of material fact or omission that is made in reliance
upon and in conformity with information relating to the Depositary or the
Custodian, as the case may be, furnished in writing to the Company by the
Depositary or the Custodian expressly for use in any document relating to the
ADSs.
The obligations set forth in this Section shall survive the
termination of this Deposit Agreement and the succession or substitution of any
party hereto.
Any person seeking indemnification hereunder (an "indemnified
person") shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. Holders,
------------------------------
Beneficial Owners and persons depositing Eligible Securities or surrendering
ADSs for cancellation and withdrawal of Deposited Securities shall be required
to pay to the Depositary the Depositary's fees and related charges identified as
payable by them respectively in the Fee Schedule attached hereto as Exhibit B.
---------
All fees and charges so payable may, at any time and from time to time, be
changed by agreement between the Depositary and the Company, but, in the case of
fees and charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such
other fees and charges and to reimburse the Depositary for such reasonable
out-of-pocket expenses as the Depositary and the Company may agree to in writing
from time to time. Responsibility for payment of such charges may at any time
45
and from time to time be changed by agreement between the Company and the
Depositary. Unless otherwise agreed, the Depositary shall present its statement
for such expenses and fees or charges to the Company once every three months.
The charges and expenses of the Custodian are for the sole account of the
Depositary.
The right of the Depositary to receive payment of fees,
charges and expenses as provided above shall survive the termination of this
Deposit Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
Section 5.10 Pre-Release Transactions. Subject to the further
------------------------
terms and provisions of this Section 5.10, the Depositary, its Affiliates and
their agents, on their own behalf, may own and deal in any class of securities
of the Company and its Affiliates and in ADSs. In its capacity as Depositary,
the Depositary shall not lend Deposited Securities or ADSs; provided, however,
that, subject to Republic of China law and regulations, the Depositary may (i)
issue ADSs prior to the receipt of Eligible Securities pursuant to Section 2.3
and (ii) deliver Deposited Securities upon the receipt of ADSs for cancellation
upon withdrawal of Deposited Securities pursuant to Section 2.7, including ADSs
which were issued under (i) above but for which Eligible Securities may not have
been received (each such transaction under (i) above, a "Pre-Release
Transaction"). The Depositary may receive ADSs in lieu of Eligible Securities
under (i) above. Each Pre-Release Transaction will be (a) subject to a written
agreement whereby the person or entity (the "Applicant") to whom ADSs are to be
delivered (w) represents that at the time of the Pre-Release Transaction the
Applicant or its customer owns the Eligible Securities that are to be delivered
by the Applicant under such Pre-Release Transaction, (x) agrees to indicate the
Depositary as owner of such Eligible Securities in its records and to hold such
Eligible Securities in trust for the Depositary until such Eligible Securities
or ADSs are delivered to the Depositary or the Custodian, (y) unconditionally
guarantees to deliver to the Depositary or the Custodian, as applicable, such
Eligible Securities or ADSs, and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Eligible Securities
involved in such Pre-Release Transactions at any one time to thirty percent
(30%) of the ADSs outstanding (without giving effect to ADSs outstanding under
(i) above), provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as it deems appropriate.
The Depositary may also set limits with respect to the number
of ADSs and Eligible Securities involved in Pre-Release Transactions with any
one person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not the earnings
thereon, shall be held for the benefit of the Holders (other than the
46
Applicant). Neither Temporary ADSs nor any interest in any Payment Certificate
shall be eligible for Pre-Release Transactions hereunder.
Section 5.11 Restricted Securities Owners. The Company agrees
----------------------------
to advise in writing each of the persons or entities who, to the knowledge of
the Company, holds Restricted Securities that, except as contemplated by Section
2.13 hereof, such Restricted Securities are ineligible for deposit hereunder
and, to the extent practicable, shall require each of such persons to represent
in writing that such person will not deposit Restricted Securities hereunder.
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. The Receipts outstanding at
--------------------
any time, the provisions of this Deposit Agreement and the form of Receipt
attached hereto and to be issued under the terms hereof may at any time and from
time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the prior written consent of the Holders or Beneficial Owners. Any
amendment or supplement which shall impose or increase any fees or charges
(other than charges in connection with foreign exchange control regulations, and
taxes and other governmental charges, delivery and other such expenses), or
which shall otherwise materially prejudice any substantial existing right of
Holders or Beneficial Owners, shall not, however, become effective as to
outstanding Receipts until the expiration of 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. The parties hereto agree that any amendments or supplements which (i)
are reasonably necessary (as agreed by the Company and the Depositary) in order
for (a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act or (b) the American Depositary Share(s) to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
materially prejudice any substantial rights of Holders or Beneficial Owners.
Every Holder and Beneficial Owner at the time any amendment or supplement so
becomes effective shall be deemed, by continuing to hold such American
Depositary Share(s), to consent and agree to such amendment or supplement and to
be bound by this Deposit Agreement and the Receipt as amended and supplemented
thereby. In no event shall any amendment or supplement impair the right of the
Holder to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law. Notwithstanding the foregoing, if any governmental body should
adopt new laws, rules or regulations which would require an amendment or
supplement of this Deposit Agreement to ensure compliance therewith, the Company
and the Depositary may amend or supplement this Deposit Agreement and the
Receipts at any time in accordance with such changed laws, rules or regulations.
Such amendment or supplement to this Deposit Agreement and the Receipts in such
circumstances may become effective before a notice of such amendment or
supplement is given to Holders or within any other period of time as required
for compliance with such laws, rules or regulations.
47
Section 6.2 Termination. The Depositary shall, at any time at
-----------
the written direction of the Company, terminate this Deposit Agreement by
mailing notice of such termination to the Holders of all Receipts then
outstanding at least 30 days prior to the date fixed in such notice for such
termination. If 60 days shall have expired after (i) the Depositary shall have
delivered to the Company a written notice of its election to resign, or (ii) the
Company shall have delivered to the Depositary a written notice of the removal
of the Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder of a Receipt will, upon
surrender of such Receipt at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of Receipts referred
to in Section 2.7 and subject to the conditions and restrictions set forth
therein and subject always to the restrictions on withdrawal as may be in effect
under the laws and regulations of the Republic of China, and upon payment of any
applicable taxes or governmental charges, be entitled to Delivery, to him or
upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of termination
of this Deposit Agreement, the Registrar thereafter shall discontinue the
registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under this Deposit Agreement, except that
the Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in this
Deposit Agreement, and shall continue to deliver Deposited Securities, subject
to the conditions and restrictions set forth in Section 2.7, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments).
At any time after the expiration of six months from the date
of termination of this Deposit Agreement, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered, such Holders thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under this Deposit Agreement with respect to
the Receipts, the Deposited Securities and the American Depositary Shares,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
48
of this Deposit Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the Depositary under
Sections 5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be
------------
executed in any number of counterparts, each of which shall be deemed an
original and all of such counterparts together shall constitute one and the same
agreement. Copies of this Deposit Agreement shall be maintained with the
Depositary and shall be open to inspection by any Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. This Deposit
----------------------------
Agreement is for the exclusive benefit of the parties hereto (and their
successors) and shall not be deemed to give any legal or equitable right, remedy
or claim whatsoever to any other person, except to the extent specifically set
forth in this Deposit Agreement. Nothing in this Deposit Agreement shall be
deemed to give rise to a partnership or joint venture among the parties nor
establish a fiduciary or similar relationship among the parties. The parties
hereto acknowledge and agree that (i) the Depositary and its Affiliates may at
any time have multiple banking relationships with the Company and its
Affiliates, (ii) the Depositary and its Affiliates may be engaged at any time in
transactions in which parties adverse to the Company or the Holders or
Beneficial Owners may have interests and (iii) nothing contained in this
Agreement shall (a) preclude the Depositary or any of its Affiliates from
engaging in such transactions or establishing or maintaining such relationships,
(b) obligate the Depositary or any of its Affiliates to disclose such
transactions or relationships or to account for any profit made or payment
received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the
------------
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding
------------------------------------------------
Effect. The Holders and Beneficial Owners from time to time of American
------
Depositary Shares shall be parties to the Deposit Agreement and shall be bound
by all of the terms and conditions thereof and of any Receipt by acceptance
thereof of any beneficial interest therein. Holders and Beneficial Owners of
International GDSs issued under the Original Deposit Agreement as heretofore in
effect shall, from and after the date hereof, have all the rights and be subject
to all the obligations of Holders and Beneficial Owners of ADSs hereunder.
Section 7.5 Notices. Any and all notices to be given to the
-------
Company shall be deemed to have been duly given if personally delivered or sent
by mail, air courier or cable, telex or facsimile transmission, confirmed by
letter, addressed to Advanced Semiconductor Engineering, Inc., 26 Chin Third
49
Road, Nantze Export Processing Zone, Nantze Kaohsiung, the Republic of China,
Attention: Chairman of the Board of Directors (facsimile number:
011-8867-361-3094), or to any other address which the Company may specify in
writing to the Depositary.
Any and all notices to be given to the Depositary shall be
deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Citibank, N.A., 111 Wall Street, New York, New York 10043, U.S.A.
Attention: ADR Department, or to any other address which the Depositary may
specify in writing to the Company.
Any and all notices to be given to the Custodian shall be
deemed to have been duly given if personally delivered or sent by mail, air
courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Citibank, N.A. - Taipei Branch, Citicorp Center, 52 Min Sheng East
Road, Section 4, Taipei, the Republic of China or to any other address which the
Custodian may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed
to have been duly given if personally delivered or sent by mail or cable, telex
or facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex
or facsimile transmission shall be deemed to be effective at the time when a
duly addressed letter containing the same (or a confirmation thereof in the case
of a cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, notwithstanding that such
cable, telex or facsimile transmission shall not subsequently be confirmed by
letter as aforesaid.
Section 7.6 Governing Law and Jurisdiction. 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 without reference to the
principles of choice of law thereof. Notwithstanding anything contained in this
Deposit Agreement, any Receipt or any present or future provisions of the laws
of the State of New York, the rights of holders of Deposited Securities and the
obligations and duties of the Company in respect of the holders of Deposited
Securities, as such, shall be governed by the laws of the Republic of China (or,
if applicable, such other laws as may govern the Deposited Securities).
50
Except as set forth in the following paragraph of this Section
7.6, the Company and the Depositary agree that the federal or state courts in
The City of New York shall have jurisdiction to hear and determine any suit,
action or proceeding and to settle any dispute between them that may arise out
of or in connection with this Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts. The
Company hereby irrevocably designates, appoints and empowers CT Corporation
System Inc. (the "Agent") with offices currently at 111 Eighth Avenue, New York,
New York 10011 as its authorized agent to receive and accept for and on its
behalf, and on behalf of its properties, assets and revenues, service by mail of
any and all legal process, summons, notices and documents that may be served in
any suit, action or proceeding brought against the Company in any federal or
state court as described in the preceding sentence or in the next paragraph of
this Section 7.6. If for any reason the Agent shall cease to be available to act
as such, the Company agrees to designate a new agent in New York on the terms
and for the purposes of this Section 7.6 reasonably satisfactory to the
Depositary. The Company further hereby irrevocably consents and agrees to the
service of any and all legal process, summons, notices and documents in any
suit, action or proceeding against the Company, by service by mail of a copy
thereof upon the Agent (whether or not the appointment of such Agent shall for
any reason prove to be ineffective or such Agent shall fail to accept or
acknowledge such service), with a copy mailed to the Company by registered or
certified air mail, postage prepaid, to its address provided in Section 7.5
hereof. The Company agrees that the failure of the Agent to give any notice of
such service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the
fullest extent permitted by law, any objection that it may now or hereafter have
to the laying of venue of any actions, suits or proceedings brought in any court
as provided in this Section 7.6, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
51
The Company irrevocably and unconditionally waives, to the
fullest extent permitted by law, and agrees not to plead or claim, any right of
immunity from legal action, suit or proceeding, from set off 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, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any Receipt or the Deposited Securities.
No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement. The provisions of this
Section 7.6 shall survive any termination of this Deposit Agreement, in whole or
in part.
Section 7.7 Assignment. Subject to the provisions of Section
----------
5.4 hereof, this Deposit Agreement may not be assigned by either the Company or
the Depositary.
Section 7.8 Compliance with U.S. Securities Laws.
------------------------------------
Notwithstanding anything in this Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Instruction I.A.(1) of
the General Instructions to Form F-6 Registration Statement, as amended from
time to time, under the Securities Act.
Section 7.9 Titles and References. All references in this
---------------------
Deposit Agreement to exhibits, articles, sections, subsections, and other
subdivisions refer to the exhibits, articles, sections, subsections and other
subdivisions of this Deposit Agreement unless expressly provided otherwise. The
words "this Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and
words of similar import refer to the Deposit Agreement as a whole as in effect
between the Company, the Depositary and the Holders and Beneficial Owners of
ADSs and not to any particular subdivision unless expressly so limited. Pronouns
in masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
Deposit Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References to
applicable laws and regulations shall refer to the applicable laws and
regulations in effect at the relevant time of determination, unless otherwise
required by such laws or regulations.
52
IN WITNESS WHEREOF, ADVANCED SEMICONDUCTOR ENGINEERING, INC.
and CITIBANK, N.A. have duly executed this Amended and Restated Deposit
Agreement as of the day and year first above set forth and all Holders and
Beneficial Owners shall become parties hereto upon acceptance by them of
American Depositary Shares evidenced by Receipts issued in accordance with the
terms hereof, or upon acquisition of any beneficial interest therein.
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
By: /s/ Jason C.S. Chang
-----------------------------------------
Name:Jason C.S. Chang
Title:Chairman
CITIBANK, N.A.
By: /s/ Nancy Lissemore
-----------------------------------------
Name: Nancy Lissemore
Title: Vice President
53
EXHIBIT A
[FORM OF RECEIPT]
Number _____________ CUSIP NUMBER: _______
[American Depositary Shares (each
American Depositary Share representing
five (5) Fully Paid common shares, each
having a par value of NT$10.00
per share)]
[Temporary American Depositary Shares
(each Temporary American Depositary
Share representing an undivided interest
if a global certificate of payment, each
interest representing the irrevocable
right to receive five (5) common shares,
each having a par value of NT$10.00
per share)]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
[DEPOSITED [COMMON SHARES]
[INTERESTS IN THE DEPOSITED CERTIFICATE OF PAYMENT]
of
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
(Incorporated under the laws of The Republic of China)
CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited [common
shares] [interests in a global Certificate of Payment representing the
irrevocable right to receive common shares], par value NT$10.00 per share,
54
including evidence of rights to receive such [common shares (the "Shares")]
[interests in the Certificate of Payment (the "Certificate of Payment)] (such
[Shares][Certificate of Payment] are hereafter called "Eligible Securities") of
Advanced Semiconductor Engineering, Inc., a corporation incorporated under the
laws of The Republic of China (the "Company"). As of the date of the Deposit
Agreement (as hereinafter defined), each ADS represents [five (5)][an interest
in a global Certificate of Payment, each interest representing the irrevocable
right to receive five (5) Shares] deposited under the Deposit Agreement with the
Custodian, which at the date of execution of the Deposit Agreement is Citibank,
N.A., Taipei Branch (the "Custodian"). The ratio of American Depositary Shares
to Eligible Securities is subject to amendment as provided in Article IV of the
Deposit Agreement. The Depositary's Principal Office is located at 111 Wall
Street, New York, New York 10043, U.S.A.
(1) The Deposit Agreement. This American Depositary Receipt is
---------------------
one of an issue of American Depositary Receipts ("Receipts"), all issued and to
be issued upon the terms and conditions set forth in the Amended and Restated
Deposit Agreement, dated as of September 29, 2000 (as amended from time to time,
the "Deposit Agreement"), by and among the Company, the Depositary, and all
Holders and Beneficial Owners from time to time of American Depositary Shares
("ADSs") evidenced by Receipts issued thereunder, each of whom by accepting an
ADS (or an interest therein) agrees to become a party thereto and becomes bound
by all the terms and conditions thereof. The Deposit Agreement sets forth the
rights and obligations of Holders and Beneficial Owners of Receipts and the
rights and duties of the Depositary in respect of the Eligible Securities
deposited thereunder and any and all other securities, property and cash from
time to time received in respect of such Eligible Securities and held thereunder
(such Eligible Securities, securities, property and cash are herein called
"Deposited Securities"). Copies of the Deposit Agreement are on file at the
Principal Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt
are summaries of certain provisions of the Deposit Agreement and the Articles of
Incorporation of the Company (as in effect on the date of the signing of the
Deposit Agreement) and are qualified by and subject to the detailed provisions
of the Deposit Agreement and the Articles of Incorporation, to which reference
is hereby made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through
DTC must rely on the procedures of DTC and the DTC Participants to exercise and
be entitled to any rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities
------------------------------------------------------------
(a) ROC Requirements. The Depositary and the Company have been
----------------
advised that under ROC law, as in effect as of the date hereof, a Holder wishing
to withdraw Deposited Securities from the ADR facility is required to appoint an
55
eligible agent in the Republic of China to open a securities trading account
with a local brokerage firm after receiving an approval from the TSE and a bank
account (the securities trading account and the bank account, collectively, the
"Accounts"), to pay ROC taxes, remit funds, exercise stockholders' rights and
perform such other functions as may be designated by such withdrawing Holder. In
addition, such withdrawing Holder is also required to appoint a custodian bank
to hold the securities in safekeeping, make confirmations and settle trades and
report all relevant information. Without making such appointment and the opening
of such Accounts, the withdrawing Holder would be unable to hold or subsequently
sell the Deposited Securities withdrawn from the ADR Facilities on the TSE or
otherwise. The laws of the Republic of China applicable to the withdrawal of
Deposited Securities may change from time to time. There can be no assurance
that current law will remain in effect or that future changes of Republic of
China law will not adversely affect the ability of Holders to withdraw Deposited
Securities hereunder.
(b) Sale of Deposited Securities. Upon surrender of Receipts
----------------------------
at the Principal Office and upon payment of any fees, reasonable expenses, taxes
or other governmental charges as provided hereunder, subject to the terms of
this Deposit Agreement and the Company's Articles of Incorporation, and the
transfer restrictions applicable to the Deposited Securities, if any, Holders
may request that the Deposited Securities represented by such Holders' Receipts
be sold on such Holder's behalf. Any Holder requesting a sale of Deposited
Securities may be required by the Depositary to deliver, or cause to be
delivered, to the Depositary a written order requesting the Depositary to sell,
or cause to be sold, such Deposited Securities. Any such sale of Deposited
Securities will be conducted in accordance with applicable ROC law through a
securities company in the ROC on the TSE or in such other manner as is or may be
permitted under applicable ROC law. Any such sale of Deposited Securities will
be at the expense and risk of the Holder requesting such sale. Any Holder
requesting the Depositary to sell the Deposited Securities represented by such
Holder's ADSs may be required to enter into a separate agreement to cover the
terms of the sale of such Deposited Securities.
Upon receipt of any proceeds from any such sale, the
Depositary shall, subject to any restrictions imposed by ROC law and
regulations, and as provided hereunder and under the Deposit Agreement, convert
or cause to be converted any such proceeds into U.S. dollars and distribute any
such proceeds to the Holders entitled thereto after deduction or payment of any
fees, reasonable expenses, taxes or governmental charges (including, without
limitation, any ROC and U.S. taxes) incurred in connection with such sale, as
provided under the Deposit Agreement. Any such sale may be subject to ROC
taxation on capital gains, if any, and will be subject to a securities
transaction tax in the ROC. The ROC does not, as of the date hereof, impose tax
on capital gains arising from ROC securities transactions, but there can be no
assurance that a capital gains tax on ROC securities transactions will not be
imposed in the future or as to the manner in which any ROC capital gains tax in
respect of a sale of Deposited Securities would be imposed or calculated.
(c) Withdrawal of Deposited Securities. The Holder of ADSs
----------------------------------
shall be entitled to Delivery (at the Custodian's designated office) of the
56
Deposited Securities at the time represented by the ADS(s) upon satisfaction of
each of the following conditions: (i) the Holder (or a duly authorized attorney
of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office
(and if applicable, the Receipts evidencing such ADSs) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so required
by the Depositary, the Receipts Delivered to the Depositary for such purpose
have been properly endorsed in blank or are accompanied by proper instruments of
transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered 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 the person(s) designated in such
order, (iv) the Holder has delivered to the Depositary the certification
contemplated in Exhibit C to the Deposit Agreement, duly completed by or on
---------
behalf of the Beneficial Owner(s) of the ADSs surrendered for withdrawal (unless
the Depositary is otherwise instructed by the Company), and (v) all applicable
fees and charges of, and reasonable expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 of,
and Exhibit B to, the Deposit Agreement) have been paid, subject, however, in
---------
each case, to the terms and conditions of the Receipts evidencing the
surrendered ADSs, of the Deposit Agreement, of the Company's Articles of
Incorporation and of any applicable laws and regulations of the Republic of
China and the United States and the rules of the Taiwan Securities Central
Depository, and to any provisions of or governing the Deposited Securities, in
each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above,
the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable,
the Receipts evidencing the ADSs so Delivered), (ii) shall direct the Registrar
to record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of the Receipts evidencing the ADSs so
canceled, of the Articles of Incorporation of the Company, of applicable laws
and regulations of the Republic of China and of the United States and of the
rules of the Taiwan Securities Central Depositary, and to the terms and
conditions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
The Depositary shall not accept for surrender ADSs
representing less than a whole number of Eligible Securities. In the case of the
Delivery to it of ADSs representing a number other than a whole number of
Eligible Securities, the Depositary shall cause ownership of the appropriate
whole number of Eligible Securities to be Delivered in accordance with the terms
hereof, and shall, at the discretion of the Depositary, either (i) return to the
person surrendering such ADSs the number of ADSs representing any remaining
fractional Eligible Security, or (ii) sell or cause to be sold the fractional
Eligible Security represented by the ADS(s) so surrendered and remit the
57
proceeds of such sale (net of (a) applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the ADSs. In addition, trading restrictions on the TSE may result in the price
per Eligible Security or on any lot of any type of Eligible Security other than
an integral multiple of 1,000 Eligible Securities being lower than the price of
Eligible Securities in lots of integral multiples of 1,000 Eligible Securities.
Notwithstanding anything else contained in any Receipt or the
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of Securities or rights, which are
at the time held by the Depositary in respect of the Deposited Securities
represented by the ADSs surrendered for cancellation and withdrawal. At the
request, risk and expense of any Holder so surrendering ADSs, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of the Deposited Securities represented by such
ADSs to the Depositary for delivery at the Principal Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of Receipts. The
----------------------------------------------
Registrar shall promptly register the transfer of this Receipt (and of the ADSs
represented thereby) on the transfer books maintained for such purpose and the
Depositary shall promptly cancel this Receipt and execute new Receipts
evidencing the same aggregate number and type of ADSs as those evidenced by this
Receipt when canceled, shall cause the Registrar to countersign such new
Receipts, and shall promptly Deliver such new Receipts to or upon the order of
the person entitled thereto, if each of the following conditions has been
satisfied: (i) this Receipt has been duly Delivered by the Holder (or by a duly
authorized attorney of the Holder) to the Depositary at its Principal Office for
the purpose of effecting a transfer thereof, (ii) this Receipt has been properly
endorsed or is accompanied by proper instruments of transfer (including
signature guarantees in accordance with standard securities industry practice),
(iii) this Receipt has been duly stamped (if required by the laws of the State
of New York or of the United States), and (iv) all applicable fees and charges
of, and reasonable expenses incurred by, the Depositary and all applicable taxes
and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to,
the Deposit Agreement) have been paid, subject, however, in each case, to the
terms and conditions of this Receipt, of the Deposit Agreement and of applicable
law, in each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of
this Receipt (and of the ADSs represented hereby) on the books maintained for
such purpose and the Depositary shall cancel this Receipt and execute new
Receipts for the number of ADSs requested, but in the aggregate not exceeding
the number of the same type of ADSs evidenced by this Receipt (when canceled),
shall cause the Registrar to countersign such new Receipts, and shall Deliver
such new Receipts to or upon the order of the Holder thereof, if each of the
following conditions has been satisfied: (i) this Receipt has been duly
58
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination hereof, and (ii) all applicable fees and charges of, and reasonable
expenses incurred by, the Depositary and all applicable taxes and government
charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit
---------
Agreement) have been paid, subject, however, in each case, to the terms and
conditions of this Receipt, of the Deposit Agreement and of applicable law, in
each case as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a
---------------------------------------------
condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt, the delivery of any
distribution thereon, or the withdrawal of any Deposited Securities, the
Depositary or the Custodian may require (i) payment from the depositor of
Eligible Securities or presenter of ADSs or of a Receipt of a sum sufficient to
reimburse it for any tax or other governmental charges and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Eligible Securities being deposited or withdrawn) and payment of
any applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters
contemplated in the Deposit Agreement, and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of Receipts or
ADSs or to the withdrawal of Deposited Securities and (B) such reasonable
regulations as the Depositary or the Company may establish consistent with the
provisions of this Receipt and the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Eligible Securities
generally or against deposits of particular Eligible Securities may be
suspended, or the deposit of particular Eligible Securities may be refused, or
the registration of transfer of Receipts in particular instances may be refused,
or the registration of transfer of outstanding Receipts generally may be
suspended, during any period when the transfer books of the Company, the
Depositary, a Registrar or the Eligible Securities Registrar are closed or if
any such action is deemed necessary or advisable by the Depositary or the
Company, in good faith, at any time or from time to time because of any
requirement of law, any government or governmental body or commission or any
securities exchange upon which the Eligible Securities or ADSs are listed, or
under any provision of the Deposit Agreement or this Receipt, or under any
provision of, or governing, the Deposited Securities, or because of a meeting of
shareholders of the Company or for any other reason, subject in all cases to
Article (24) hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, Holders are entitled to surrender outstanding ADSs
to withdraw the Deposited Securities at any time subject only to (i) Temporary
delays caused by closing the transfer books of the Depositary or the Company or
the deposit of Eligible Securities in connection with voting at a shareholders'
meeting or the payment of dividends, (ii) the payment of fees, taxes and similar
charges, (iii) compliance with any U.S. or foreign laws or governmental
regulations relating to the Receipts or to the withdrawal of the Deposited
Securities, and (iv) other circumstances specifically contemplated by Section
I.A.(l) of the General Instructions to Form F-6 (as such General Instructions
may be amended from time to time).
59
(5) Compliance With Information Requests. Notwithstanding any
------------------------------------
other provision of the Deposit Agreement or this Receipt, each Holder and
Beneficial Owner of the ADSs represented hereby agrees to comply with requests
from the Company pursuant to applicable U.S. and Republic of China laws or
regulations, the rules and requirements of the TSE, and of any stock exchange on
which Eligible Securities or ADSs are, or will be, registered, traded or listed,
or the Articles of Incorporation of the Company, which are made to provide
information, inter alia, as to the capacity in which such Holder or Beneficial
Owner owns ADSs (and Eligible Securities or Deposited Securities, as the case
may be) and regarding the identity of any other person(s) interested in such
ADSs and the nature of such interest and various other matters, whether or not
they are Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of
----------------------
this Receipt or of the Deposit Agreement, the Company may restrict transfers of
the Shares, Eligible Securities or securities convertible into Shares where the
Company informs the Depositary that such transfer might result in ownership of
Shares exceeding limits imposed by applicable law, the SFC, the TSE or Articles
of Incorporation of the Company. The Company may also restrict, in such manner
as it deems appropriate, transfers of ADSs where such transfer may result in the
total number of Shares, Deposited Securities or securities convertible into
Shares represented by the ADSs owned by a single Holder or Beneficial Owner to
exceed any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including but not limited to, the imposition of
restrictions on the transfer of ADSs, the removal or limitation of voting rights
or the mandatory sale or disposition on behalf of a Holder or Beneficial Owner
of the Deposited Securities represented by the ADSs held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Incorporation of
the Company.
(7) Liability of Holder for Taxes and Other Charges. If any
-----------------------------------------------
tax or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Receipt or any Deposited Securities or ADSs, such
tax or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of a Holder and/or Beneficial Owner any
or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, the Holder and the Beneficial Owner hereof remaining liable for any
deficiency. The Custodian may refuse the deposit of Eligible Securities and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer,
split-up or combination of ADRs and (subject to Article (24) hereof) the
withdrawal of Deposited Securities until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
employees and Affiliates for, and hold each of then harmless from, any claims
60
with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person
--------------------------------------------
depositing Eligible Securities under the Deposit Agreement shall be deemed
thereby to represent and warrant that (i) such Eligible Securities and the
certificates therefor are duly authorized, validly issued, fully paid,
non-assessable and legally obtained by such person, (ii) all preemptive (and
similar) rights, if any, with respect to such Eligible Securities have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Eligible Securities presented for deposit are free
and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim and are not, and the ADSs issuable upon such deposit will not be,
Restricted Securities, and (v) the Eligible Securities presented for deposit
have not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Eligible Securities, the
issuance and cancellation of ADSs in respect thereof and the transfer of such
ADSs.
If any such representations or warranties are false in any
way, the Company and Depositary shall be authorized, at the cost and expense of
the person depositing Eligible Securities, to take any and all actions necessary
to correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any
-------------------------------------------------
person presenting Eligible Securities for deposit, and any Holder and any
Beneficial Owner may be required, and every Holder and Beneficial Owner agrees,
from time to time to provide to the Depositary and the Custodian such proof of
citizenship or residence, taxpayer status, payment of all applicable taxes or
other governmental charges, exchange control approval, legal or beneficial
ownership of ADSs and Deposited Securities, compliance with applicable laws and
the terms of the Deposit Agreement and the provisions of, or governing, the
Deposited Securities, to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Eligible Securities in registered form
presented for deposit, such information relating to the registration of Eligible
Securities on the books of the Eligible Securities Registrar) as the Depositary
or the Custodian may deem necessary or proper or as the Company may reasonably
require by written request to the Depositary consistent with its obligations
under the Deposit Agreement and this Receipt. The Depositary and the Registrar,
as applicable, may, and at the reasonable written request of the Company shall,
withhold the execution or delivery or registration of transfer of any Receipt or
the distribution or sale of any dividend or other distribution of rights or of
the proceeds thereof or, to the extent not limited by Article (24) hereof, the
delivery of any Deposited Securities, or may refuse to adjust its records, until
such proof or other information is filed or such certificates are executed, or
such representations are made or such information and documentation are
provided, in each case to the Depositary's, the Registrar's and the Company's
satisfaction.
(10) Charges of Depositary. The Depositary shall charge the
---------------------
following fees for the services performed under the terms of the Deposit
Agreement:
61
(i) to any person to whom ADSs are issued upon the
deposit of Eligible Securities, a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or portion thereof) so
issued under the terms of the Deposit Agreement
(excluding issuances pursuant to paragraphs (iii) and
(iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in
excess of U.S. $ 5.00 per 100 ADSs (or portion
thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $
2.00 per 100 ADSs (or portion thereof) held for the
distribution of cash proceeds (i.e., upon the sale of
unexercised rights and other entitlements); no fee
shall be payable for the distribution of cash
dividends or the distribution of Eligible Securities
pursuant to stock dividends or other free
distributions of Eligible Securities as long as such
fees are prohibited by the exchange upon which the
ADSs are listed; and
(iv) to any Holder of ADRs, a fee not in excess of U.S.
$ 5.00 per 100 ADSs (or portion thereof) issued
pursuant to stock dividends or other free stock
distributions or upon the exercise of rights.
In addition, Holders, Beneficial Owners, person depositing
Eligible Securities for deposit and persons surrendering ADSs for cancellation
and withdrawal of Deposited Securities will be required to pay the following
charges:
(i) taxes (including applicable interest and penalties)
and other governmental charges;
(ii) such registration fees as may from time to time be in
effect for the registration of Deposited Securities
on the share register and applicable to transfers of
Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and
delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of the person
depositing or withdrawing Deposited Securities or
Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary
in the conversion of foreign currency;
(v) such fees and expenses as are incurred by the
Depositary in connection with compliance with
exchange control regulations and other regulatory
62
requirements applicable to Eligible Securities,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the
Deposit Agreement will be paid by the Company upon agreement between the
Depositary and the Company. All fees and charges may, at any time and from time
to time, be changed by agreement between the Depositary and Company but, in the
case of fees and charges payable by Holders or Beneficial Owners, only in the
manner contemplated by Article (22) of this Receipt. The Depositary will
provide, without charge, a copy of its latest fee schedule to anyone upon
request. The charges and expenses of the Custodian are for the sole account of
the Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and
-----------------
every successive Holder of this Receipt by accepting or holding the same
consents and agrees, that title to this Receipt (and to each ADS evidenced
hereby) shall be transferable upon the same terms as a certificated security
under the laws of the State of New York, provided that the Receipt has been
properly endorsed or is accompanied by proper instruments of transfer.
Notwithstanding any notice to the contrary, the Depositary and the Company may
deem and treat the Holder of this Receipt (that is, the person in whose name
this Receipt is registered on the books of the Depositary) as the absolute owner
thereof for all purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
Receipt to any holder of this Receipt or any Beneficial Owner unless such holder
is the Holder of this Receipt registered on the books of the Depositary or, in
the case of a Beneficial Owner, such Beneficial Owner or the Beneficial Owner's
representative is the Holder registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the ADSs
-------------------
represented hereby) shall not be entitled to any benefits under the Deposit
Agreement or be valid or enforceable for any purpose against the Depositary or
the Company unless this Receipt has been (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. Receipts
bearing the facsimile signature of a duly-authorized signatory of the Depositary
or the Registrar, who at the time of signature was a duly authorized signatory
of the Depositary or the Registrar, as the case may be, shall bind the
Depositary, notwithstanding the fact that such signatory has ceased to be so
authorized prior to the delivery of such Receipt by the Depositary.
(13) Available Information; Reports; Inspection of Transfer
------------------------------------------------------
Books. The Company is subject to the periodic reporting requirements of the
Exchange Act and accordingly files certain information with the Commission.
63
These reports and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at Judiciary Plaza, 450 Fifth
Street, N.W., Washington D.C. 20549 and at the Commission's New York City office
located at Seven World Trade Center, 13th Floor, New York, New York 10048. The
Depositary shall make available for inspection by Holders at its Principal
Office any reports and communications, including any proxy soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company.
The Registrar shall keep books for the registration of
issuances and transfers of Receipts which at all reasonable times shall be open
for inspection by the Company and by the Holders of such Receipts, provided that
such inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Article (24) hereof.
Dated: CITIBANK, N.A.,
as Depositary
CITIBANK, N.A.
Transfer Agent and Registrar
By:_________________________
Authorized Signatory
By:_______________________
Authorized Signatory
The address of the Principal Office of the Depositary is 111
Wall Street, New York, New York 10043, U.S.A.
64
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Eligible Securities,
--------------------------------------------------------
etc. Subject always to the laws and regulations of the Republic of China,
---
whenever the Depositary receives confirmation from the Custodian of receipt of
any cash dividend or other cash distribution on any Deposited Securities, or
receives proceeds from the sale of any Deposited Securities, rights securities
or any entitlements held in respect of Deposited Securities under the Deposit
Agreement, the Depositary will (i) if at the time of receipt thereof any amounts
received in a Foreign Currency can, in the judgment of the Depositary (upon the
terms of the Deposit Agreement), be converted on a practicable basis into
Dollars transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (upon the
terms of the Deposit Agreement), (ii) if applicable, establish the ADS Record
Date upon the terms described in Article (16) hereof and in Section 4.9 of the
Deposit Agreement, and (iii) will distribute promptly the amount thus received
(net of (a) applicable fees and charges of, and reasonable expenses incurred by,
the Depositary and (b) taxes withheld) to the Holders entitled thereto as of the
ADS Record Date (if applicable) in proportion to the number of ADS representing
such Deposited Securities held as of the ADS Record Date (if applicable). The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs then outstanding at the time of
the next distribution. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced accordingly.
Such withheld amounts shall be forwarded by the Company to the relevant
governmental authority.
If any distribution upon any Deposited Securities consists of
a dividend in, or free distribution of, Eligible Securities, the Company shall
or cause such Eligible Securities to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
their respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall, subject to and in accordance with the Deposit
Agreement and the laws and regulations of the Republic of China, establish the
ADS Record Date and either (i) the Depositary shall distribute to the Holders as
of the ADS Record Date in proportion to the number of ADSs held as of the ADS
Record Date, additional ADSs (or the applicable series), which represent in
aggregate the number of Eligible Securities received as such dividend, or free
distribution, subject, however, in each case, to the terms of the Deposit
65
Agreement (including, without limitation, the limitations set forth on the face
of this Receipt and in Article II of the Deposit Agreement and (a) the
applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes), or (ii) if additional ADSs are not so distributed,
each ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Eligible Securities distributed upon the Deposited
Securities represented thereby (subject, however, in each case, to the laws and
regulations of the Republic of China and net (a) of the applicable fees and
charges of, and the reasonable expenses incurred by, the Depositary, and (b)
taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of Eligible Securities or ADSs, as the case may be, represented by the
aggregate of such fractions and distribute the net proceeds upon the terms set
forth in the Deposit Agreement.
In the event that (x) the Depositary determines that any
distribution in property (including Eligible Securities) is subject to any tax
or other governmental charges which the Depositary is obligated to withhold, or
(y) if the Company in the fulfillment of its obligations under the Deposit
Agreement, has furnished an opinion of U.S. counsel determining that Eligible
Securities must be registered under the Securities Act or other laws in order to
be distributed to Holders (and no such registration statement has been declared
effective) or (z) the deposit of Eligible Securities is not permitted under the
laws or regulations of the Republic of China, the Depositary may dispose of all
or a portion of such property (including Eligible Securities and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of (a) taxes and fees and (b) charges of, and reasonable expenses incurred by,
the Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company
wishes an elective distribution to be made available to Holders upon the terms
described in the Deposit Agreement, the Company and the Depositary shall
determine whether such distribution is lawful and reasonably practicable. If so,
the Depositary shall, subject to the terms and conditions of the Deposit
Agreement, establish an ADS record date according to Article (16) hereof and
establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be distributed as in the
case of a distribution in Eligible Securities. If such elective distribution is
not lawful or not reasonably practicable, the Depositary shall, to the extent
permitted by law, distribute to Holders, on the basis of the same determination
as is made in the Republic of China in respect of the Deposited Securities for
which no election is made, either (x) cash or (y) additional ADSs representing
such additional Eligible Securities, in each case, upon the terms described in
the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
66
elective distribution in Eligible Securities (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Deposited Securities.
Upon timely receipt by the Depositary of a notice indicating
that the Company wishes rights to subscribe for additional Eligible Securities
to be made available to Holders of ADSs, the Depositary upon consultation with
the Company, shall determine, whether it is lawful and reasonably practicable to
make such rights available to the Holders. The Depositary shall make such rights
available to any Holders only if (i) the Company shall have timely requested
that such rights be made available to Holders, (ii) the Depositary shall have
received the documentation contemplated in the Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise the rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the
valid exercise of such rights. Nothing herein or in the Deposit Agreement shall
obligate the Depositary to make available to the Holders a method to exercise
rights to subscribe for Eligible Securities (rather than ADSs). If (i) the
Company does not timely request the Depositary to make the rights available to
Holders or if the Company requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive the documentation required by the
Deposit Agreement or determines it is not reasonably practicable to make the
rights available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
and private sale) as it may deem proper. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of applicable fees and charges
of, and reasonable expenses incurred by, the Depositary and taxes) upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to make
any rights available to Holders or to arrange for the sale of the rights upon
the terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such rights available to Holders in general or any
Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise, or (iii) the content of any materials
forwarded to the ADR Holders on behalf of the Company in connection with the
rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to
the contrary, if registration (under the Securities Act or any other applicable
law) of the rights or the securities to which any rights relate may be required
in order for the Company to offer such rights or such securities to Holders and
to sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
67
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary with
opinions of counsel for the Company in the United States and counsel to the
Company in any other applicable country in which rights would be distributed, in
each case satisfactory to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of ADSs representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Eligible
Securities and rights to subscribe therefor) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Eligible
Securities and rights to subscribe therefor) in such amounts and in such manner,
including by public or private sale, as the Depositary deems necessary and
practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any
Holder in particular, will be given the opportunity to exercise rights on the
same terms and conditions as the holders of Eligible Securities or to exercise
such rights. Nothing herein or in the Deposit Agreement shall obligate the
Company to file any registration statement in respect of any rights or Eligible
Securities or other securities to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes
property other than cash, Eligible Securities or rights to purchase additional
Eligible Securities, to be made to Holders of ADSs, the Depositary shall
determine whether such distribution to Holders is lawful and reasonably
practicable. The Depositary shall not make such distribution unless (i) the
Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received the documentation contemplated
in the Deposit Agreement, and (iii) the Depositary shall have determined that
such distribution is lawful and reasonably practicable. Upon satisfaction of
such conditions, the Depositary shall distribute the property so received to the
Holders of record, as of the ADS Record Date, in proportion to the number of
ADSs held by them respectively and in such manner as the Depositary may deem
practicable for accomplishing such distribution (i) upon receipt of payment or
net of the applicable fees and charges of, and reasonable expenses incurred by,
the Depositary, and (ii) net of any taxes withheld. The Depositary may dispose
of all or a portion of the property so distributed and deposited, in such
amounts and in such manner (including public or private sale) as the Depositary
may deem practicable or necessary to satisfy any taxes (including applicable
interest and penalties) or other governmental charges applicable to the
distribution.
If the conditions above are not satisfied, the Depositary
shall sell or cause such property to be sold in a public or private sale, at
such place or places and upon such terms as it may deem proper and shall (i)
cause the proceeds of such sale, if any, to be converted into Dollars and (ii)
distribute the proceeds of such conversion received by the Depositary (net of
68
(a) applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes) to the Holders upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to sell such property, the
Depositary may dispose of such property in any way it deems reasonably
practicable under the circumstances.
(15) Redemption. Subject always to the laws and regulations of
----------
the Republic of China, upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) deliver to each Holder a notice setting forth the Company's
intention to exercise the redemption rights and any other particulars set forth
in the Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and reasonable expenses incurred by,
the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of
such ADSs by Holders thereof upon the terms of the Deposit Agreement. If less
than all outstanding Deposited Securities are redeemed, the ADSs to be retired
will be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar equivalent of
per-Deposited Security amount received by the Depositary upon the redemption of
the Deposited Securities represented by American Depositary Shares (subject to
the terms of the Deposit Agreement and the applicable fees and charges of, and
reasonable expenses incurred by, the Depositary, and taxes) multiplied by the
number of Units or Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall
-------------------------
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Eligible Securities, rights or other
distribution), or whenever for any reason the Depositary causes a change in the
number of Deposited Securities that are represented by each ADS, or whenever the
Depositary shall receive notice of any meeting of, or solicitation of consents
or proxies of, holders of Deposited Securities, or whenever the Depositary shall
find it necessary or convenient in connection with the giving of any notice, or
any other matter, the Depositary shall fix a record date ("ADS Record Date") for
the determination of the Holders of Receipts who shall be entitled to receive
such distribution, to give instructions for the exercise of voting rights at any
such meeting, or to give or withhold such consent, or to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Deposited Securities represented by each
ADS. Subject to applicable law and the terms and conditions of this Receipt and
the Deposit Agreement, only the Holders of Receipts at the close of business in
New York on such ADS Record Date shall be entitled to receive such
distributions, to give such instructions, to receive such notice or
solicitation, or otherwise take action.
69
(17) Voting of Deposited Securities. (a) Voting by
------------------------------ ---------
Shareholders. The following is a summary of certain rights of holders of Shares
------------
to vote at shareholders' meetings under ROC Company Law and the Articles of
Incorporation of the Company, in each case, as in effect on the date hereof: (i)
a holder of Shares (including holders of interests in any Certificate of Payment
evidencing the irrevocable right to receive Shares) is entitled to one vote for
each Share held, except that the number of votes of a holder of more than 3% of
the total outstanding Shares is discounted by the Company by a factor of 0.1% of
that portion of the Shares held in excess of 3% (e.g., a holder of 10% of the
total outstanding Shares would be permitted to exercise voting rights only with
respect of a 9.93% of such Shares), (ii) the election of directors and
supervisors takes place by means of cumulative voting, and (iii) a shareholder
must, as to all matters subject to a vote of shareholders (other than the
election of directors and supervisors), exercise the voting rights for all
Shares held by such shareholder in the same manner (e.g., a holder of 1,000
Shares cannot split his/her votes but must vote all 1,000 Shares in the same
manner except in the event of cumulative voting for an election of directors and
supervisors). The voting rights attaching to the Deposited Securities must be
exercised by, or on behalf of, the Depositary, as representative of the Holders,
collectively in the same manner, including the election of directors and
supervisors. Deposited Securities which have been withdrawn from the ADR
Facilities and timely transferred on the Company's register of shareholders to a
person other than the Depositary may be voted by the registered holder(s)
thereof directly, subject, in each case, to the limitations of ROC law and the
Articles of Incorporation of the Company. Holders may not receive sufficient
advance notice of shareholders' meetings to enable them to timely withdraw the
Deposited Securities and vote at such meetings and may not be able to re-deposit
the withdrawn securities under the terms of the Deposit Agreement.
(b) Voting by ADS Holders. Holders of ADSs have no individual
---------------------
voting rights with respect to the Deposited Securities represented by their
ADSs. Each Holder shall be deemed, by acceptance of ADSs or acquisition of any
beneficial interest therein, to have authorized and directed the Depositary,
without liability, to appoint the Chairman of the Company (or his/her
designate), as representative of the Depositary, the Custodian or the nominee
who is registered in the ROC as representative of the Holders in respect of the
Deposited Securities (the "Registered Holder"), to vote the Deposited Securities
in accordance with the terms hereof.
The Company agrees to timely notify the Depositary of any
proposed shareholders' meeting and to timely provide to the Depositary in New
York sufficient copies as the Depositary may reasonably request of English
language translations of the Company's notice of shareholders' meeting and the
agenda of the materials to be voted on (in the form the Company generally makes
available to holders of Eligible Securities in the ROC), including, without
limitation, a list of candidates proposed by the Company for an election of
directors or supervisors (such materials collectively, the "Shareholder
Notice"). As soon as practicable after receipt by the Depositary of the
requisite number of Shareholder Notices, the Depositary shall establish the ADS
Record Date (upon the terms of Article (16) hereof and Section 4.9 of the
Deposit Agreement) and shall, at the Company's expense and provided no U.S.
70
legal prohibitions exist, deliver to Holders as of the applicable ADS Record
Date, (i) the Shareholder Notice, (ii) a depositary notice setting forth the
manner in which Holders of ADSs may instruct the Depositary to cause the
Deposited Securities represented by their ADSs to be voted under the terms of
this Deposit Agreement including, a description of the Management Proxy (as
defined below), together with a form of voting instructions and/or other means
to provide voting instructions (the depositary notice and the related materials
prepared by the Depositary collectively, the "Depositary Notice"). The
Depositary is under no obligation to mail the Shareholder Notice and the
Depositary Notice to Holders if the Company has failed to provide to the
Depositary in New York the requisite number of Shareholder Notices at least 24
calendar days prior to the date of any shareholders' meeting. If the Depositary
has not delivered the Shareholder Notice or Depositary Notice to Holders, it
will endeavor to cause all Deposited Securities represented by ADRs to be
present at the relevant Shareholders' meeting insofar as practicable and
permitted under applicable law but will not cause the Deposited Securities to be
voted; provided, however, that the Depositary may determine, at its sole
-------- -------
discretion, to send such Shareholder Notice and Depositary Notice to Holders
and/or cause the Deposited Securities to be voted as it deems appropriate. There
can be no assurance that Holders generally or any Holder in particular will
receive Shareholder Notices and Depositary Notices with sufficient time to
enable the return of voting instructions to the Depositary in a timely manner.
Notwithstanding anything else contained in the Deposit
Agreement, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws.
(c) Voting of Deposited Securities Upon ADS Holders'
------------------------------------------------
Instructions. If Holders of ADSs together holding at least 51% of all the ADSs
(including Temporary ADSs) outstanding as of the relevant ADS Record Date shall
instruct the Depositary, prior to the date established for such purpose by the
Depositary, to vote in the same manner in respect of one or more resolutions to
be proposed at a shareholders' meeting (including resolutions for the election
of directors and/or supervisors), the Depositary shall notify to the Chairman of
the Company (or his/her designate) and appoint the Chairman of the Company (or
his/her designate) as the representative of the Depositary and the Registered
Holders to attend such shareholders' meeting and vote all Deposited Securities
evidenced by ADSs then outstanding (including Temporary ADSs) in the manner so
instructed by such Holders. If voting instructions are received by the
Depositary on or before the date established by the Depositary for the receipt
of such instructions from any Holder as of the ADS Record Date, which are signed
but without further indication as to voting instructions, the Depositary shall
deem such Holder to have instructed a vote in favor of the items set forth in
such instructions. The Depositary and Custodian shall not have any obligation to
monitor, and shall not incur any liability for, the actions, or the failure to
act, of the Chairman of the Company (or his/her designate) as representative of
the Registered Holder.
(d) Management Proxy. If, for any reason (other than a failure
----------------
by the Company to supply the requisite number of Shareholder Notices to the
71
Depositary within the requisite time period provided in the Deposit Agreement,
the Depositary has not, prior to the date established for such purpose by the
Depositary received instructions from Holders together holding at least 51% of
all ADSs (including Temporary ADSs) outstanding at the relevant ADS Record Date,
to vote in the same manner in respect of any resolution (including resolutions
for the election of directors and/or supervisors), then, subject to the
following paragraph, the Holders shall be deemed to have authorized and directed
the Depositary to give a discretionary proxy (a "Management Proxy") to the
Chairman of the Company (or his/her designate) as the representative of the
Registered Holder to attend and vote at such meeting all the Deposited
Securities represented by ADSs then outstanding (including Temporary ADSs) in
his or her discretion. In such circumstances, the Chairman of the Company (or
his or her designate) shall be free to exercise the votes attaching to the
Deposited Securities in any manner he or she wishes, which may not be in the
interests of the Holders.
The Depositary's grant of a Management Proxy in the manner and
circumstances described in the preceding paragraph shall be subject to the
receipt by the Depositary prior to each shareholders' meeting of an opinion of
ROC counsel addressed to, and in form and substance satisfactory to, the
Depositary. In the event the Depositary does not receive such opinion, the
Depositary will not grant the Management Proxy but will cause the Deposited
Securities to be present at the shareholders' meeting to the extent practicable
and permitted by applicable law but will not cause the Deposited Securities to
be voted or the Management Proxy to be granted.
The Depositary shall not, and the Depositary shall ensure that
the Custodian and its nominees do not, vote or attempt to exercise the right to
vote that attaches to the Shares or other Deposited Securities, other than in
accordance with instructions given in accordance with Section 4.10 of the
Deposit Agreement. The terms Section 4.10 of the Deposit Agreement may be
amended from time to time in accordance with the terms of this Deposit
Agreement. By continuing to hold ADSs after the effective time of such amendment
all Holders and Beneficial Owners shall be deemed to have agreed to the terms of
the Deposit Agreement as so amended.
(18) Changes Affecting Deposited Securities. Upon any change
--------------------------------------
in nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a dividend
in Eligible Securities, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
72
deposited Eligible Securities, with necessary modifications to the form of
Receipt contained herein, specifically describing such new Deposited Securities
or corporate change. Notwithstanding the foregoing, in the event that any
security so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, and shall if the Company requests,
subject to receipt of satisfactory legal documentation contemplated in the
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes) for the account of the Holders
otherwise entitled to such securities and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to the Deposit Agreement. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall
-----------
be obligated to do or perform any act which is inconsistent with the provisions
of the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, the Republic of China or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or by
reason of any provision, present or future of the Articles of Incorporation of
the Company or any provision of or governing any Deposited Securities, or by
reason of any act of God or war or other circumstances beyond its control
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement or in the
Articles of Incorporation of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Eligible
Securities for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for any inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Holders of ADS or
(v) for any consequential or punitive damages for any breach of the terms of
this Deposit Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement or this Receipt.
73
(20) Standard of Care. The Company and its agents assume no
----------------
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith. The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith. The Depositary and the Company
undertake to perform such duties and only such duties as are specifically set
forth in the Deposit Agreement, and no implied covenants and obligations should
be read into the Deposit Agreement or this Receipt against the Depositary or the
Company or their respective agents. The Depositary and its agents shall not be
liable for any failure to carry out any instructions to vote any of the
Deposited Securities, or for the manner in which any vote is cast or the effect
of any vote, provided that any such action or omission is in good faith and in
accordance with the terms of this Deposit Agreement. The Depositary shall not
incur any liability for any failure to determine that any distribution or action
may be lawful or reasonably practicable, for the content of any information
submitted to it by the Company for distribution to the Holders or for any
inaccuracy of any translation thereof, for any investment risk associated with
acquiring an interest in the Deposited Securities, for the validity or worth of
the Deposited Securities or for any tax consequences that may result from the
ownership of ADSs, Shares or Deposited Securities, for the credit-worthiness of
any third party, for allowing any rights to lapse upon the terms of this Deposit
Agreement, for the failure or timeliness of any notice from the Company or for
the failure of the Company to exchange any Certificate of Payment into Shares.
The Depositary shall not be obligated in any way to monitor or enforce the
obligations of the Company, including, without limitation, in respect of any
Certificate of Payment, the conversion of such Certificate of Payment into
Shares.
(21) Resignation and Removal of the Depositary; Appointment of
---------------------------------------------------------
Successor Depositary. The Depositary may at any time resign as Depositary under
--------------------
the Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) 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 written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its immediate predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its immediate predecessor. The immediate predecessor
74
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders. Any corporation 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.
(22) Amendment/Supplement. This Receipt and any provisions of
--------------------
the Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and this Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the
-----------
written direction of the Company, terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If 60
75
days shall have expired after (i) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in herein and in the Deposit
Agreement, the Depositary may terminate the Deposit Agreement by mailing notice
of such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder will, upon surrender of such
Holders' Receipt(s) at the Principal Office of the Depositary, upon the payment
of the charges of the Depositary for the surrender of ADSs referred to in
Article (10) hereof and in Exhibit B to the Deposit Agreement and subject to the
---------
conditions and restrictions set forth therein and subject always to the
restrictions on withdrawal as may be in effect under the laws and regulations of
the Republic of China, and upon payment of any applicable taxes or governmental
charges, be entitled to Delivery, to him or upon his order, of the amount of
Deposited Securities represented by such Receipt. If any Receipts shall remain
outstanding after the date of termination of the Deposit Agreement, the
Registrar thereafter shall discontinue the registration of transfers of
Receipts, and the Depositary shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under the Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights as provided in the Deposit Agreement, and shall continue to
deliver Deposited Securities, subject to the conditions and restrictions set
forth in the Deposit Agreement, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case the
charges of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments). At
any time after the expiration of six months from the date of termination of the
Deposit Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
whose Receipts have not theretofore been surrendered, such Holders thereupon
becoming general creditors of the Depositary with respect to such proceeds.
After making such sale, the Depositary shall be discharged from all obligations
under the Deposit Agreement with respect to the Receipts, the Deposited
Securities and the ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case the charges of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Holder in accordance with the terms and conditions of the Deposit Agreement
and any applicable taxes or governmental charges or assessments). Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except as set forth in the Deposit
Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
------------------------------------
provisions in this Receipt or the Deposit Agreement to the contrary, the
76
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to
---------------------------------------------
the further terms and provisions of this Article (25) and Section 5.10 of the
Deposit Agreement, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not
lend Deposited Securities or ADSs; provided, however, that, subject to Republic
of China law and regulations, the Depositary may (i) issue ADSs prior to the
receipt of Eligible Securities pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Deposited Securities upon the receipt of ADSs for cancellation
upon withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which
Eligible Securities may not have been received (each such transaction under (i)
above, a "Pre-Release Transaction"). The Depositary may receive ADSs in lieu of
Eligible Securities under (i) above. Each such Pre-Release Transaction will be
(a) subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs are to be delivered (w) represents that at the time of
the Pre-Release Transaction the Applicant or its customer owns the Eligible
Securities that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Eligible
Securities in its records and to hold such Eligible Securities in trust for the
Depositary until such Eligible Securities or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Eligible Securities or ADSs,
and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
United States government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days' notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Eligible Securities involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate.
The Depositary may also set limits with respect to the number
of ADSs and Eligible Securities involved in Pre-Release Transactions with any
one person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not the earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant). Temporary ADSs and interests in any Certificate of Payment shall not
be eligible for Pre-Release Transactions hereunder.
77
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name:________________________________
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
alteration or enlargement or any change
whatsoever.
If the endorsement be executed by an attorney
executor, administrator, trustee or guardian,
the person executing the endorsement must
give his/her full title in such capacity and
proper evidence of authority to act in such
capacity, if not on file with the Depositary,
must be forwarded with this Receipt.
All endorsements or assignments of Receipts
must be guaranteed by a member of a Medallion
Signature Program approved by the Securities
Transfer Association, Inc.
SIGNATURE GUARANTEED
78
Legends
[The Receipts issued in respect of Partial Entitlement American
Depositary Shares shall bear the following legend on the face of the
Receipt: "This Receipt evidences American Depositary Shares
representing partial entitlement [common shares] [interests in the
Certificate of Payment] of Advanced Semiconductor Engineering, Inc.,
and as such do not entitle the holders thereof to the same per-security
entitlement as other [common shares] [interests in the Certificate of
Payment] (which are "full entitlement" [common shares] [interests in
the Certificate of Payment]) issued and outstanding at such time. The
American Depositary Shares represented by this Receipt shall entitle
holders to distributions and entitlements identical to other American
Depositary Shares when the [common shares] [interests in the
Certificate of Payment] represented by such American Depositary Shares
become "full entitlement" [common shares] [interests in the Certificate
of Payment].
79
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. Depositary Fees
---------------
The Company, the Holders, the Beneficial Owners and the
persons depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
--------------------------------------------------------------------------------
Service Rate By Whom Paid
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(1) Issuance of ADSs upon Up to $5.00 per Person for whom
deposit of Eligible 100 ADSs (or deposits are made
Securities (excluding fraction thereof) or person receiving
issuances as aresult issued. ADSs.
of distributions
described in
paragraphs 3(b) and
(5) below).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(2) Delivery of Deposited Up to $5.00 per Person surrendering
Securities, property 100 ADSs (or ADSs or making
and cash against fraction thereof) withdrawal.
surrender of ADSs. surrendered.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(3) Distribution of (a) No fee, so long Person to whom
cash dividends or (b) as prohibited by distribution is made.
ADSs pursuant to the exchange upon
stock dividends (or which the ADSs are
other distribution of listed.
stock).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(4) Distribution of cash Up to $2.00 per Person to whom
proceeds (i.e., upon 100 ADSs (or distribution is made.
sale of rights or fraction thereof)
other entitlements). held.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(5) Distribution of ADSs Up to $5.00 per Person to whom
pursuant to exercise 100 ADSs (or distribution is made.
of rights. fraction thereof)
issued.
--------------------------------------------------------------------------------
II. Charges
-------
80
Holders, Beneficial Owners, persons depositing Eligible
Securities for deposit and persons surrendering ADSs for cancellation and for
the purpose of withdrawing Deposited Securities shall be responsible for the
following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Deposited Securities on the share register and
applicable to transfers of Deposited Securities to or from the name of
the Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of
the person depositing Eligible Securities or Holders and Beneficial
Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Eligible Securities, Deposited Securities,
ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities.
81
Form of Certification Upon Withdrawal
-------------------------------------
EXHIBIT C
Certification and Agreement of Persons Surrendering
ADSs for the Purpose of Withdrawal
Deposited Securities Pursuant to Section 2.7 of the
Deposit Agreement
Citibank, N.A.
ADR Department
111 Wall Street
New York, New York 10043
Re: Advanced Semiconductor Engineering, Inc.
-------------------------------------------
We refer to the Amended and Restated Deposit Agreement, dated
as of September 29, 2000 (the "Deposit Agreement"), among ADVANCED SEMICONDUCTOR
ENGINEERING, INC. (the "Company"), CITIBANK, N.A., as Depositary, and Holders
and Beneficial Owners from time to time of American Depositary Shares (the
"ADSs") evidenced by American Depositary Receipts (the "Receipts") issued
thereunder. Capitalized terms used but not defined herein shall have the
meanings given them in the Deposit Agreement. We are providing the information
herein to enable the Company to comply with its reporting obligations under the
laws and regulations of the Republic of China and understand that the Company
will rely upon the information provided herein for such purpose.
1. We are surrendering ADSs or giving withdrawal
instructions through DTC in accordance with the terms of the Deposit Agreement
for the purpose of withdrawal of the Deposited Securities represented by the
ADSs (the "Shares") pursuant to Section 2.7 of the Deposit Agreement.
2. We certify (or if we are acting for the account of
another person, such person has confirmed to us that it certifies) that:
(please check the applicable box in (a) below and fill in the missing
information in (b) below, as appropriate)
(a) We are (it is) a "Related Person" of the Company (as defined
below).
or
We are (it is) not a "Related Person" of the Company (as
defined below).
82
AND
L (b)(i) We will own ____________________ Shares of the Company, after
(fill in) cancellation of the ADSs
surrendered hereby (do not
include Shares represented by
ADSs included in (b)(ii)
below);
and
(ii) We will own ____________________ ADSs representing Shares of
(fill in) of the Company, after
cancellation of the ADSs
surrendered hereby.
3. We certify (or if we are acting for the account of
another person, such person has confirmed to us that it certifies) that:
(i) We are (or the person for the account of which we are acting
is) the Beneficial Owner of the ADSs hereby surrendered to the Depositary for
ithdrawal of the Shares represented thereby;
AND
(ii) We hereby certify that the following information is true and
correct:
Name of Beneficial Owner of ADSs: ____________________________
Address of Beneficial Owner of ADSs:
__________________________________
______________________________________________________________
______________________________________________________________
Nationality of Beneficial Owner of ADSs:______________________
Number of ADSs surrendered hereby: ___________________________
Number of Shares withdrawn hereby:
___________________________________
Date: ________________________________________________________
4. If we are a broker-dealer, we further certify that we
are acting for the account of our customer and that our customer has confirmed
the accuracy of the representations contained in paragraphs 1 through 3 hereof
that are applicable to it.
83
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: _________________________
Name
Title:
____________________________________________________________________________
A person or entity is deemed to be a "Related Person" of the Company if the
person or entity is:
(a) (i) a company of which the chairman of the board of
directors or the general manager serves as the chairman
of the board of directors or the chairman of the
Company, or the spouse or member of the immediate second
family of the chairman of the board of directors or
general manager of the Company;
(ii) a non-profit organization of which the funds donated
from the Company exceeds one-third of the non-profit
organization's total funds;
(iii) a director, supervisor or general manager, vice-general
manager, assistant vice-general manager, or departmental
head reporting to the general manager;
(iv) the spouse of a director, supervisor or general manager
of the Company; or
(v) a member of the immediate or second immediate families
of the Company's chairman of the board of directors or
general manager.
OR
(b) a person or entity that has control or influence over the
Company.
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TABLE OF CONTENTS
Page
85
(d) Opinion of counsel to the Depositary
Frettra M. Miller
Vice President and
Senior Counsel
Tel212/657-2150
Fax212/657-3744
frettra.m.miller@citi.com
September 6, 2003
Citibank, N.A.
ADR Department
111 Wall Street
New York, N.Y. 10043
Re: American Depositary Receipts evidencing American Depositary
Shares Representing five (5) common shares, par value NT $10.00
each, of Advanced Semiconductor Engineering, Inc.
Ladies and Gentlemen:
I refer to the Registration Statement to be filed on Form F-6 (the "Registration
Statement") by the legal entity created by the Deposit Agreement (as defined
herein) for which you are acting as the depositary, for the purpose of
registering under the Securities Act of 1933, as amended, 100,000,000 American
Depositary Shares ("ADSs") evidenced by American Depositary Receipts ("ADRs") to
be issued under the Amended and Restated Deposit Agreement, dated as of
September 29, 2000 by and among Citibank, N.A., as depositary, Advanced
Semiconductor Engineering, Inc., a company organized and existing under the laws
of the Republic of China (the "Company"), and the Holders and Beneficial Owners
from time to time of ADRs issued thereunder, a copy of which is being filed as
Exhibit (a) to the Registration Statement (the "Deposit Agreement"). Each ADS
will (subject to amendments in accordance with the terms of the Deposit
Agreement) represent five (5) common shares, par value NT $10.00 each, or
evidence of the right to receive such shares, of the Company. Capitalized terms
used herein without definition shall have the meaning assigned thereto in the
Deposit Agreement.
Assuming that the Deposit Agreement has been duly executed and delivered by
the Company, I am of the opinion that the ADSs covered by the Registration
Statement, when issued in accordance with the terms of the Deposit Agreement,
will be legally issued and will entitle the Holders thereof to the rights
specified in the Deposit Agreement and the ADRs.
I hereby consent to the filing of this opinion as an exhibit to the
aforementioned Registration Statement.
I am a member of the Bar of the State of New York. This opinion is limited to
the laws of the State of New York and the Federal laws of the United States.
Very truly yours,
/s/ Frettra M. Miller
(e) Certification under Rule 466
CERTIFICATION UNDER RULE 466
The Depositary, Citibank, N.A., represents and certifies the following:
(1) That it previously had filed a registration statement on Form F-6
(Registration No. 333-12468), which the Commission declared effective
with terms of deposit identical to the terms of this registration
statement except for the number of foreign securities a Depositary Share
represents.
(2) That its ability to designate the date and time of effectiveness under
Rule 466 has not been suspended.
Citibank, N.A., as Depositary
By: /s/ Frettra M. Miller
-------------------------------------
Name: Frettra M. Miller
Title: Vice President