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SILICONWARE PRECISION INDUSTRIES CO., LTD.
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS
ISSUED AND OUTSTANDING UNDER THE
SECOND AMENDED AND DEPOSIT AGREEMENT,
DATED AS OF JUNE 7, 2000
Amendment No. 1
to
Second Amended and Restated Deposit Agreement
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Dated as of [DATE], 2008
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AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO SECOND AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as
of [DATE], 2008 (the "Amendment"), by and among Siliconware Precision Industries
Co., Ltd., a company incorporated under the laws of the Republic of China (the
"Company"), Citibank, N.A., a national banking association organized under the
laws of the United States of America (the "Depositary"), and all Holders and
Beneficial Owners from time to time of American Depositary Shares evidenced by
American Depositary Receipts issued and outstanding under the Second Amended and
Restated Deposit Agreement, dated as of June 7, 2000.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Second
Amended and Restated Deposit Agreement, dated as of June 7, 2000 (the "Deposit
Agreement"), for the creation of American Depositary Shares representing the
Shares (as defined in the Deposit Agreement) so deposited and for the execution
and delivery of American Depositary Receipts ("Receipts") in respect of the
American Depositary Shares ("ADSs"); and
WHEREAS, the Company Law of the Republic of China has been amended to
permit certain shareholders of the Company to make proposals to be considered at
the annual ordinary meeting of the Company's shareholders and the Company
desires to amend the Deposit Agreement to reflect such change and to permit
Beneficial Owners of ADSs, subject to the conditions set forth herein, to
instruct the Depositary to make a proposal for consideration at the annual
ordinary meeting of the Company's shareholders; and
WHEREAS, the Company Law of the Republic of China has been amended to
permit certain shareholders of the Company to nominate candidates to be
considered for election as directors at a meeting of the Company's shareholders
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involving the election of directors if the Company amends its Articles of
Incorporation to adopt a Candidate Nomination System, as hereinafter defined,
and the Company desires to amend the Deposit Agreement to reflect such change
and to permit Beneficial Owners of ADSs, subject to the amendment of the
Company's Articles of Incorporation and the conditions set forth herein, to
instruct the Depositary to nominate candidates to be considered for election as
directors at a meeting of the Company's shareholders; and
WHEREAS, the Company and the Depositary desire to amend the Deposit
Agreement to reflect the change in the application of fees associated with the
distribution of ADSs pursuant to (i) stock dividends or other free stock
distributions, and (ii) the exercise of rights, and to permit the Depositary to
assess such fees in accordance with the terms, and subject to any conditions,
set forth herein; and
WHEREAS, the Company and the Depositary desire to amend the Deposit
Agreement to make the ADSs eligible for inclusion in the Direct Registration
System (the "DRS"); and
WHEREAS, the Company and the Depositary desire to amend the Deposit
Agreement to enable the distribution of Company's reports and voting materials
by the Depositary by electronic means; and
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company and
the Depositary deem it desirable to amend the Deposit Agreement, the Receipts
currently outstanding, the form of Receipt annexed to the Deposit Agreement as
Exhibit A, and the Fee Schedule annexed to the Deposit Agreement as Exhibit B,
as the case may be, for the purposes set forth herein.
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NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement, the Receipts and the form of
Receipt attached as Exhibit A to the Deposit Agreement, and the Fee Schedule
attached as Exhibit B to the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Deposit Agreement.
SECTION 1.02. Effective Date. The term "Effective Date" shall mean the
later to occur of (i) the expiration of 30 days after notice of this Amendment
has been given to Holders of outstanding ADSs or (ii) the date upon which the
Commission declares effective the applicable F-6 Registration Statement pursuant
to which a form of this Amendment has been filed with the Commission. After the
Effective Date, the Deposit Agreement shall be referred to as the Deposit
Agreement by and among the Company, the Depositary and all Holders and
Beneficial Owners of American Depositary Shares issued thereunder (without
reference to the need for ADSs to be evidenced by ADRs).
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
to the term "Deposit Agreement" shall, as of the Effective Date, refer to the
Second Amended and Restated Deposit Agreement, dated as of June 7, 2000, as
amended by this Amendment.
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SECTION 2.02. Amendment Binding on all Holders and Beneficial Owners. From
and after the Effective Date, the amendments to the Deposit Agreement effected
hereby shall be binding on all Holders and Beneficial Owners of ADSs issued and
outstanding as of the Effective Date and on all Holders and Beneficial Owners of
ADSs issued after the Effective Date. Notwithstanding anything contained herein,
in the Deposit Agreement or in any Receipt, from and after the Effective Date
any reference in the Deposit Agreement, any Receipt or the form of Receipt
attached to the Deposit Agreement to Holders and Beneficial Owners of ADRs,
Receipts or American Depositary Receipts shall include, unless a reasonable
interpretation of the context otherwise mandates, Holders and Beneficial Owners
of ADSs.
SECTION 2.03. Change in Company Law of the Republic of China - Submission
of Proposals/Nominations. In order to reflect the change in the Company Law of
the Republic of China, the Deposit Agreement is hereby amended as of the
Effective Date by:
(a) adding the following Section 4.16 at the end of Article IV of
the Deposit Agreement:
"Section 4.16 Right to Submit Proposals at Annual Ordinary Meeting
of Shareholders.
(a) Proposals by Shareholders.
The Company has informed the Depositary that under ROC Company Law,
as in effect as of the date of the Deposit Agreement, holders of one
percent (1%) or more of the total issued and outstanding Shares of the
Company as of the applicable record date for determining holders of Shares
with the right to vote at an annual ordinary meeting of the Company's
shareholders (the "Shareholder Proposal Record Date"), are entitled to
submit one (1) written proposal (such proposal shall not include a
Beneficial Owner's right to nominate candidates for election as directors
at a meeting of the Company's shareholders in accordance with the terms
and subject to the conditions of Section 4.17 hereof, the "Proposal") each
year for consideration at the annual ordinary meeting of the Company's
shareholders, provided that: (i) the Proposal is in the Chinese language
and does not exceed 300 Chinese characters (including the reason(s) for
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the Proposal and all punctuation marks) in length, (ii) the Proposal is
submitted to the Company prior to the expiration of the period for
submission of Proposals (the "Submission Period") announced by the Company
(which Submission Period and the place for eligible shareholders to submit
the Proposal the Company undertakes to announce publicly each year in a
report on Form 6-K submitted to the Commission prior to the commencement
of the 60 days closed period prior to the annual ordinary meeting of the
Company's shareholders), (iii) only one (1) matter for consideration at
the annual ordinary meeting of the Company's shareholders shall be allowed
in each Proposal, and (iv) the proposing shareholder shall attend, in
person or by a proxy, such annual ordinary meeting of the Company's
shareholders whereat his or her or its Proposal is to be discussed in the
Chinese language and such proposing shareholder, or his or her or its
proxy, shall take part in the discussion of such Proposal in the Chinese
language. As the holder of the Deposited Securities, the Depositary or its
nominee is entitled, provided the conditions of ROC law are satisfied, to
submit only one (1) Proposal each year in respect of all of the Shares
held on deposit as of the applicable Shareholder Proposal Record Date.
Holders and Beneficial Owners of ADSs do not under ROC law have individual
rights to submit Proposals to the Company for consideration at the annual
ordinary meeting of the Company's shareholders but may be able to submit
Proposals to the Company for consideration at the annual ordinary meeting
of the Company's shareholders if the Beneficial Owners (i) timely present
their ADSs to the Depositary for cancellation pursuant to the terms of the
Deposit Agreement and become holders of Shares in the ROC prior to the
expiration of the Submission Period and prior to the applicable
Shareholder Proposal Record Date, and (ii) otherwise satisfy the
conditions of ROC law applicable to the submission of Proposals to the
Company for consideration at an annual ordinary meeting of the Company's
shareholders. Beneficial Owners of ADSs may not receive sufficient advance
notice of an annual ordinary meeting of the Company's shareholders to
enable the timely withdrawal of Shares to make a Proposal to the Company
and may not be able to re-deposit under the Deposit Agreement the Shares
so withdrawn. The Company has informed the Depositary that a Proposal
shall only be voted upon at the annual ordinary meeting of the Company's
shareholders if the Proposal is accepted by the board of directors of the
Company as eligible in accordance with Article 172-1 of the ROC Company
Law and the Company's Articles of Incorporation for consideration at an
annual ordinary meeting of the Company's shareholders.
(b) Single Proposal by Depositary or its Nominee on behalf of
Beneficial Owners.
Holders and Beneficial Owners of ADSs do not have individual
proposal rights. The Depositary will, if so requested by (a) Beneficial
Owner(s) as of the applicable ADS Record Date that own(s), individually or
as a group, at least 51% of the ADSs outstanding as of the applicable ADS
Record Date (such Beneficial Owner(s), the "Submitting Holder(s)"), submit
to the Company for consideration at the annual ordinary meeting of the
Company's shareholders one (1) Proposal each year, provided that: (i) the
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Proposal submitted to the Depositary by the Submitting Holder(s) is in the
Chinese language and does not exceed 300 Chinese characters (including the
reason(s) for the Proposal and all punctuation marks) in length, (ii) the
Proposal is submitted to the Depositary by the Submitting Holder(s) at
least two (2) Business Days prior to the expiration of the Submission
Period, (iii) the Proposal is accompanied by a written certificate signed
by each Submitting Holder, addressed to the Depositary and the Company and
in a form satisfactory to the Depositary and the Company (the "First
Proposal Certificate"), certifying, inter alia, (w) that each Submitting
Holder has only certified the said Proposal, (x) that the Submitting
Holder(s) own(s), individually or in the aggregate, at least 51% of the
ADSs outstanding as of the date the Proposal is submitted by the
Submitting Holder(s) to the Depositary (the "Proposal Submission Date"),
(y) if the Proposal Submission Date is (i) on or after the applicable ADS
Record Date, that the Submitting Holder(s) owned at least 51% of the ADSs
outstanding as of the applicable ADS Record Date, and (ii) prior to the
applicable ADS Record Date, that the Submitting Holder(s) will continue to
own at least 51% of the ADSs outstanding as of the applicable ADS Record
Date and will provide the Second Proposal Certificate, as defined below,
and (z) the name(s) and address(es) of the Submitting Holder(s) and the
number of ADSs owned by each Submitting Holder (together with certified
evidence of each Submitting Holder's ownership of the applicable ADSs as
of the Proposal Submission Date, in the case of (y)(ii) above, and the
applicable ADS Record Date, in the case of (y)(i) above), (iv) if the
Proposal Submission Date is prior to the applicable ADS Record Date, the
Submitting Holder(s) must also provide, within five (5) Business Days
after the applicable ADS Record Date, a second written certificate signed
by each Submitting Holder, addressed to the Depositary and the Company and
in a form satisfactory to the Depositary and the Company (the "Second
Proposal Certificate"), certifying, inter alia, that the Submitting
Holder(s) continued to own at least 51% of the ADSs outstanding as of the
applicable ADS Record Date (together with certified evidence of each
Submitting Holder's ownership of the applicable ADSs as of such applicable
ADS Record Date), (v) the Proposal is accompanied by a joint and several
irrevocable undertaking of all Submitting Holders (which undertaking may
be contained in the First Proposal Certificate or the Second Proposal
Certificate) that each such Submitting Holder shall pay all fees and
expenses incurred in relation to the submission of the Proposal for voting
at the annual ordinary meeting of the Company's shareholders (including,
but not limited to, the costs and expenses of the Submitting Holder(s), or
his, her, its or their representative, to attend the annual ordinary
meeting of the Company's shareholders), (vi) the Shares registered in the
name of the Depositary or its nominee as representative of the Holders and
Beneficial Owners constitute one percent (1%) or more of the total issued
and outstanding Shares of the Company as of the Shareholder Proposal
Record Date, (vii) such Proposal contains only one (1) matter for
consideration at the annual ordinary meeting of the Company's
shareholders, and (viii) the Submitting Holder(s), or his, her, its or
their representative, attend(s) the annual ordinary meeting of the
Company's shareholders and take(s) part in the discussions of the Proposal
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in the Chinese language, provided further that only one (1) individual may
attend, and take part in the discussion of the Proposal at such annual
ordinary meeting on behalf of a Submitting Holder(s). Each Beneficial
Owner hereby agrees and acknowledges that (i) if the Submitting Holder(s),
or his, her, its or their representative, does not attend the annual
ordinary meeting of the Company's shareholders, the chairman of such
meeting may ask the attending shareholders to discuss, or not discuss, the
Proposal, and (ii) in no event shall a Submitting Holder's, or his, her,
its or their representative's, presence at an annual ordinary meeting of
the Company's shareholders entitle such Submitting Holder(s), or his, her,
its or their representative, to vote the Shares represented by such
Submitting Holder's ADSs (or any other ADSs) at such annual ordinary
meeting of the Company's shareholders.
Upon the timely receipt by the Depositary of any Proposal which the
Depositary reasonably believes to be in full compliance with the
immediately preceding paragraph, the Depositary shall submit a copy of
such Proposal and of the other materials received from the Submitting
Holder(s) to the Company prior to the expiration of the Submission Period.
Any Proposal so submitted as to which the Depositary has not received
within five (5) Business Days after the applicable ADS Record Date any
Second Proposal Certificate required under the immediately preceding
paragraph shall be deemed irrevocably withdrawn at the expiration of such
five (5) Business Day period. In the event the Depositary receives more
than one (1) Proposal by a Submitting Holder, or a group of Submitting
Holders, each of which appears to satisfy the requirements set forth in
the immediately preceding paragraph, the Depositary is hereby authorized
and instructed to disregard all Proposals received from such Submitting
Holder(s), except for the first Proposal received by the Depositary from
such Submitting Holder(s) and shall submit such Proposal to the Company
for consideration at the annual ordinary meeting of the Company's
shareholders in accordance with the terms hereof. The Depositary shall not
have any obligation to verify the accuracy of the information contained in
any document submitted to it by the Submitting Holder(s). Neither the
Depositary nor its nominee shall be obligated to attend and speak at the
annual ordinary meeting of the Company's shareholders on behalf of the
Submitting Holder(s).
Notwithstanding anything contained in the Deposit Agreement or any
ADR and except that the Depositary shall arrange, at the request of the
Company and at the Company's expense, for the mailing to Holders of copies
of materials that the Company has made available to the Depositary for
such purpose, the Depositary shall not be obligated to provide to the
Holders or Beneficial Owners of ADSs any notices relating to the proposal
rights, including, without limitation, notice of the Submission Period, or
the receipt of any Proposal(s) from Submitting Holders, or of the holdings
of any ADSs by any persons except that the Depositary shall, upon a
Holder's request, inform such Holder of the total number of ADSs then
issued and outstanding."
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(b) adding the following Section 4.17 at the end of Article IV of
the Deposit Agreement:
"Section 4.17 Right to Submit Nominations at Meeting of
Shareholders.
(a) No Right Absent Amendment to Articles of Incorporation.
No rights under this Section 4.17 shall be effective absent an
amendment to the Company's Articles of Incorporation adopting a system whereby
candidates may be nominated by holders of Shares to serve on the Company's board
of directors (a "Candidate Nomination System") and any rights so arising shall,
at all times, be subject to the provisions of the Company's Articles of
Incorporation, as amended, and ROC Company Law, as amended.
(b) Nominations by Shareholders.
The Company has informed the Depositary that under ROC Company Law,
in the event that the Company amends its Articles of Incorporation to
adopt a Candidate Nomination System, holders of one percent (1%) or more
of the total issued and outstanding Shares of the Company as of the
applicable record date for determining holders of Shares with the right to
vote at a meeting of the Company's shareholders (the "Candidate Nomination
Record Date"), would be entitled to submit a roster of candidates (the
"Nomination") to be considered for nomination to the Company's board of
directors at a meeting of the Company's shareholders involving the
election of directors, provided that: (i) the number of director
candidates contained in the Nomination shall not exceed the number of the
directors to be elected at such meeting, (ii) the Nomination is submitted
to the Company prior to the expiration of the period for submission of
Nominations (the "Nomination Submission Period") announced by the Company
(which Nomination Submission Period, the number of the directors to be
elected, the place for eligible shareholders to submit the Nomination and
other applicable information the Company undertakes to announce publicly
in a report on Form 6-K submitted to the Commission prior to the
commencement of the 60 days (for an ordinary meeting) or 30 days (for an
extraordinary meeting) closed period prior to the subject meeting of the
Company's shareholders), (iii) the Nomination shall contain the name,
educational background and past work experience of each director candidate
identified in the Nomination, (iv) the Nomination shall include a letter
of consent issued by each director candidate identified in the Nomination
consenting to act as director if she/he/it is elected as such, (v) a
written statement by each director candidate assuring that she/he/it is
not in violation of any of the circumstances set forth in Article 30 of
the ROC Company Law, as amended, (vi) if a director candidate is a
corporate shareholder of the Company (which cannot be the Depositary or
its nominee), or such corporate shareholder's representative, additional
information and documents reflecting the basic registration information of
such corporate shareholder and the document certifying the number of
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Shares in its possession have been included, and (vii) any further
conditions under Article 192-1 of the ROC Company Law, as amended, and of
the Company's amended Articles of Incorporation are so satisfied. In the
event that the Company were to amend its Articles of Incorporation to
adopt a Candidate Nomination System, as holder of the Deposited
Securities, the Depositary or its nominee would be entitled, provided the
conditions of the Company's amended Articles of Incorporation are
satisfied, to submit only one (1) Nomination for each meeting involving
the election of directors in respect of all of the Shares held on deposit
as of the Candidate Nomination Record Date. The Company shall promptly
notify the Depositary of an amendment of its Articles of Incorporation
adopting a Candidate Nomination System. Holders and Beneficial Owners of
ADSs do not under ROC law have individual rights to submit Nominations to
the Company for consideration at a meeting of the Company's shareholders
involving the election of directors but may be able to submit a Nomination
to the Company for consideration at a meeting of the Company's
shareholders involving the election of directors if the Beneficial Owners
(i) timely present their ADSs to the Depositary for cancellation pursuant
to the terms of the Deposit Agreement and become holders of Shares in the
ROC prior to the expiration of the Nomination Submission Period and prior
to the Candidate Nomination Record Date, and (ii) otherwise satisfy the
conditions of ROC law applicable to the submission of Nominations to the
Company for consideration at a meeting of the Company's shareholders
involving the election of directors. Beneficial Owners of ADSs may not
receive sufficient advance notice of a meeting of the Company's
shareholders involving the election of directors to enable the timely
withdrawal of Shares to make a Nomination to the Company and may not be
able to re-deposit under the Deposit Agreement the Shares so withdrawn.
The Company has informed the Depositary that a Nomination shall only be
voted upon at a meeting of the Company's shareholders involving the
election of directors if the Nomination is accepted by the board of
directors of the Company as eligible in accordance with Article 192-1 of
the ROC Company Law and the Company's Article of Incorporation for
consideration at a meeting of the Company's shareholders involving the
election of directors.
(c) Single Nomination by Depositary or its Nominee on Behalf of
Beneficial Owners.
Holders and Beneficial Owners of ADSs do not have individual
nomination rights. In the event that the Company were to amend its
Articles of Incorporation to adopt a Candidate Nomination System, the
Depositary would, if so requested by (a) Beneficial Owner(s) as of the
applicable ADS Record Date that own(s), individually or as a group, at
least 51% of the ADSs outstanding as of the applicable ADS Record Date
(such Beneficial Owner(s), the "Nominating Holder(s)"), submit to the
Company for consideration at a meeting of the Company's shareholders
involving the election of directors one (1) Nomination, provided that: (i)
the number of director candidates contained in the Nomination shall not
exceed the number of the directors to be elected at such meeting, (ii) the
9
Nomination shall contain the name, educational background and past work
experience of each director candidate identified in the Nomination, (iii)
the Nomination shall include a letter of consent issued by each director
candidate identified in the Nomination consenting to act as director if
she/he/it is elected as such, (iv) a written statement by each director
candidate assuring that she/he/it is not in violation of any of the
circumstances set forth in Article 30 of the ROC Company Law, as amended,
(v) if a director candidate is corporate shareholder of the Company (which
cannot be the Depositary or its nominee), or such corporate shareholder's
representative, additional information and documents reflecting the basic
registration information of such corporate shareholder and the document
certifying the number of Shares in its possession have been included, (vi)
any further conditions under Article 192-1 of the ROC Company Law, as
amended, and of the Company's amended Articles of Incorporation are so
satisfied, (vii) the Nomination is submitted to the Depositary by the
Nominating Holder(s) at least two (2) Business Days prior to the
expiration of the Nomination Submission Period, (viii) the Nomination is
accompanied by a written certificate signed by each Nominating Holder,
addressed to the Depositary and the Company and in a form satisfactory to
the Depositary and the Company (the "First Nomination Certificate"),
certifying, inter alia, (w) that each Nominating Holder has only endorsed
the said Nomination, (x) that the Nominating Holder(s) own(s),
individually or in the aggregate, at least 51% of the ADSs outstanding as
of the date the Nomination is submitted by the Nominating Holder(s) to the
Depositary (the "Nomination Submission Date"), (y) if the Nomination
Submission Date is (i) on or after the applicable ADS Record Date, that
the Nominating Holder(s) owned at least 51% of the ADSs outstanding as of
the applicable ADS Record Date, and (ii) prior to the applicable ADS
Record Date, that the Nominating Holder(s) will continue to own at least
51% of the ADSs outstanding as of the applicable ADS Record Date and will
provide the Second Nomination Certificate, as defined below, and (z) the
name(s) and address(es) of the Nominating Holder(s) and the number of ADSs
owned by each Nominating Holder (together with certified evidence of each
Nominating Holder's ownership of the applicable ADSs as of the Nomination
Submission Date, in the case of (y)(ii) above, and the applicable ADS
Record Date, in the case of (y)(i) above), (ix) if the Nomination
Submission Date is prior to the applicable ADS Record Date, the Nominating
Holder(s) must also provide, within five (5) Business Days after the
applicable ADS Record Date, a second written certificate signed by each
Nominating Holder addressed to the Depositary and the Company and in a
form satisfactory to the Depositary and the Company (the "Second
Nomination Certificate"), certifying, inter alia, that the Nominating
Holder(s) continued to own at least 51% of the ADSs outstanding as of the
applicable ADS Record Date (together with certified evidence of each
Nominating Holder's ownership of the applicable ADSs as of such applicable
ADS Record Date), (x) the Nomination is accompanied by a joint and several
irrevocable undertaking of all Nominating Holders (which undertaking may
be contained in the First Nomination Certificate or the Second Nomination
Certificate) that each such Nominating Holder shall pay all fees and
expenses incurred in relation to the submission of the Nomination at the
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meeting of the Company's shareholders, and (xi) the Shares registered in
the name of the Depositary or its nominee as representative of the Holders
and Beneficial Owners constitute one percent (1%) or more of the total
issued and outstanding Shares of the Company as of the Candidate
Nomination Record Date. Each Beneficial Owner hereby agrees and
acknowledges that in no event shall the Depositary or its nominee be
nominated by the Nominating Holder(s) for election as a director at a
meeting of the Company's shareholders.
Upon the timely receipt by the Depositary of any Nomination which
the Depositary reasonably believes to be in full compliance with the
immediately preceding paragraph, the Depositary shall submit a copy of
such Nomination and of the other materials received from the Nominating
Holder(s) to the Company prior to the expiration of the Nomination
Submission Period. Any Nomination so submitted as to which the Depositary
has not received within five (5) Business Days after the applicable ADS
Record Date any Second Nomination Certificate required under the
immediately preceding paragraph shall be deemed irrevocably withdrawn at
the expiration of such five (5) Business Day period. In the event the
Depositary receives more than one (1) Nomination by a Nominating Holder,
or a group of Nominating Holders, each of which appears to satisfy the
requirements set forth in the immediately preceding paragraph, the
Depositary is hereby authorized and instructed to disregard all
Nominations received from such Nominating Holder(s), except for the first
Nomination received by the Depositary from such Nominating Holder(s) and
shall submit such Nomination to the Company for consideration at a meeting
of the Company's shareholders involving the election of directors in
accordance with the terms hereof. The Depositary shall not have any
obligation to verify the accuracy of the information contained in any
document submitted to it by the Nominating Holder(s). Neither the
Depositary nor its nominee shall be obligated to attend and speak at the
meeting of the Company's shareholders involving the election of directors
on behalf of the Nominating Holder(s).
Notwithstanding anything contained in the Deposit Agreement or any
ADR, and except that the Depositary shall arrange, at the request of the
Company and at the Company's expense, for the mailing to Holders of copies
of materials that the Company has made available to the Depositary for
such purpose, the Depositary shall not be obligated to provide to the
Holders or Beneficial Owners of ADSs any notices relating to the
nomination rights, including, without limitation, notice of the Nomination
Submission Period, or the receipt of any Nomination(s) from Nominating
Holders, or of the holdings of any ADSs by any persons, except that the
Depositary shall, upon a Holder's request, inform such Holder of the total
number of ADSs then issued and outstanding."
SECTION 2.04. Direct Registration System. In order to make the ADSs
eligible for inclusion in the DRS, the Deposit Agreement is hereby amended as of
the Effective Date by:
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(a) deleting Section 1.3 in its entirety and inserting the following
in its stead:
"Section 1.3 "American Depositary Share(s)" and "ADS(s)" shall mean,
individually or collectively, as the context may require, 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, if issued as Certificated ADS(s) (as hereinafter
defined), the American Depositary Receipt(s) 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 ADSs issued and
outstanding under the terms of this Deposit Agreement unless otherwise
specifically noted. The International EC GDSs outstanding as of the date hereof
shall, from and after the date hereof, be deemed for all purposes to be
Temporary EC ADSs issued and outstanding under the terms of this Deposit
Agreement and shall be deemed for all purposes to be ADSs issued and outstanding
under the terms this Deposit Agreement, unless otherwise specifically noted.
ADS(s) may be issued under the terms of this Deposit Agreement in the form of
(a) Certificated ADS(s), in which case the ADS(s) are to be evidenced by ADR(s),
or (b) Uncertificated ADS(s) (as hereinafter defined), in which case the ADS(s)
are not to be evidenced by ADR(s) but are reflected on the direct registration
system maintained by the Depositary for such purposes under the terms of Section
2.14. Unless otherwise specified in this Deposit Agreement or in any ADR, or
unless the context otherwise requires, any reference to ADS(s) shall include
Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as
the context may require. Each ADS shall represent (i) in the case of Share ADSs
(as hereinafter defined) five (5) Shares, (ii) in the case of Temporary PC ADSs,
an undivided interest in a Payment Certificated deposited by the Company with
the Custodian and representing the irrevocable right to receive the aggregate
number of Shares from the Company, each Temporary PC ADS representing an
undivided interest in the irrevocable right to receive five (5) Shares from the
Company and (ii) in the case of Temporary EC ADSs, Entitlement Certificates,
each representing the irrevocable right to receive such number of Shares from
the Company as indicated on the relevant Entitlement Certificates, 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 ADSs are not issued, and thereafter each ADS 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 PC ADSs and Temporary EC ADSs, individually or collectively,
as the context may require."
(b) adding the following new Section 1.56 thereof:
"Section 1.56 "Certificated ADSs" shall have the meaning set forth
in Section 2.14."
(c) adding the following as a last sentence to Section 1.23 thereof:
"Any reference to Holders of ADR(s) or ADS(s) in this Deposit
Agreement shall, in the context of the Uncertificated ADSs, refer to the
person(s) in whose name the Uncertificated ADSs are registered on the books of
the Depositary maintained for such purpose."
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(d) deleting Section 1.37 in its entirety and inserting the
following in its stead:
"Section 1.37 "Receipt(s)", "American Depositary Receipt(s)" and
"ADR(s)" shall mean any series of certificate(s) issued by the Depositary to
evidence American Depositary Shares issued under the terms of this Deposit
Agreement in the form of Certificated ADS(s), 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 ADSs and may, in the case of 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 "Receipts"
shall include the Temporary Receipts evidencing the Temporary EC ADSs or the
Temporary PC ADSs issued hereunder, individually or collectively, as the context
may require. Notwithstanding anything else contained herein or therein, the
depositary receipts issued and outstanding under the Original Deposit Agreements
shall, from and after the date hereof, be subject to the terms hereof in all
respects."
(e) adding the following new Section 1.57 thereof:
"Section 1.57 "Uncertificated ADS(s)" shall have the meaning set
forth in Section 2.14."
(f) deleting the first sentence of Section 2.2(a) thereof in its
entirety and inserting the following in its stead:
"Certificated ADSs shall be evidenced by definitive Receipts which
shall be printed, lithographed or produced in such other manner as may be agreed
upon by the Company and the Depositary"
(g) deleting the first sentence of Section 2.2(c) thereof in its
entirety and inserting the following in its stead:
"Subject to limitations contained herein and in the Receipt, title
to a Receipt (and to each Certificated 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, in the case of Certificated ADSs, such
Receipt has been properly endorsed or is accompanied by properly executed
instruments of transfer."
(h) deleting the second sentence of Section 2.2(d) thereof in its
entirety and inserting the following in its stead:
"Unless issued by the Depositary as Uncertificated ADSs, a single
ADR in the form of a "Balance Certificate" will 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."
13
(i) adding the following new Section 2.14:
"Section 2.14 Certificated/Uncertificated ADSs. Notwithstanding any
other provision of this Deposit Agreement, the Depositary may, at any time and
from time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the
"Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the "Certificated
ADS(s)"). When issuing and maintaining Uncertificated ADS(s) under this Deposit
Agreement, the Depositary shall at all times be subject to (a) the standards
applicable to registrars and transfer agents maintaining direct registration
systems for equity securities in New York and issuing uncertificated securities
under New York law, and (b) the terms of New York law applicable to
uncertificated equity securities. Uncertificated ADSs shall not be represented
by any instruments but shall be evidenced by registration in the books of the
Depositary maintained for such purpose. Holders of Uncertificated ADSs, that are
not subject to any registered pledges, liens, restrictions or adverse claims of
which the Depositary has written notice at such time, shall at all times have
the right to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the
same type and class, subject in each case to applicable laws and any rules and
regulations the Depositary may have established in respect of the Uncertificated
ADSs. Holders of Certificated ADSs shall, if the Depositary maintains a direct
registration system for the ADSs, have the right to exchange the Certificated
ADSs for Uncertificated ADSs upon (i) the due surrender of the Certificated
ADS(s) to the Depositary for such purpose and (ii) the presentation of a written
request to that effect to the Depositary, subject in each case to (w) all liens
and restrictions noted on the ADR evidencing the Certificated ADS(s) and all
adverse claims of which the Depositary then has written notice, (x) the terms of
this Deposit Agreement and the rules and regulations that the Depositary may
establish for such purposes hereunder, (y) applicable law, and (z) payment of
the Depositary fees and expenses applicable to such exchange of Certificated
ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall in all material
respects be identical to Certificated ADS(s) of the same type and class, except
that (1) no ADR(s) shall be, or shall need to be, issued to evidence
Uncertificated ADS(s), (2) Uncertificated ADS(s) shall, subject to the terms of
this Deposit Agreement, be transferable upon the same terms and conditions as
uncertificated securities under New York law, (3) the ownership of
Uncertificated ADS(s) shall be recorded on the books of the Depositary
maintained for such purpose and evidence of such ownership shall be reflected in
periodic statements provided by the Depositary to the Holder(s) in accordance
with applicable New York law, (4) the Depositary may from time to time, upon
notice to the Holders of Uncertificated ADSs affected thereby, establish rules
and regulations, and amend or supplement existing rules and regulations, as may
be deemed reasonably necessary to maintain Uncertificated ADS(s) on behalf of
Holders, provided that such rules and regulations do not conflict with the terms
of this Deposit Agreement and applicable law, (5) the Uncertificated ADS(s)
shall not be entitled to any benefits under this Deposit Agreement or be valid
or enforceable for any purpose against the Depositary or the Company unless such
Uncertificated ADS(s) is/are registered on the books of the Depositary
maintained for such purpose, (6) the Depositary may, in connection with any
deposit of Shares resulting in the issuance of Uncertificated ADSs and with any
transfer, pledge, release and cancellation of Uncertificated ADSs, require the
prior receipt of such documentation as the Depositary may deem reasonably
14
appropriate, and (7) upon termination of this Deposit Agreement, the Depositary
shall not require Holders of Uncertificated ADSs to affirmatively instruct the
Depositary before remitting proceeds from the sale of the Deposited Securities
represented by such Holders' Uncertificated ADSs under the terms of Section 6.2
of this Deposit Agreement. When issuing ADSs under the terms of this Deposit
Agreement, including, without limitation, issuances pursuant to Sections 2.5,
4.2, 4.3, 4.4 and 4.5, the Depositary may in its discretion determine to issue
Uncertificated ADSs rather than Certificated ADSs, unless otherwise specifically
instructed by the applicable Holder to issue Certificated ADSs. All provisions
and conditions of this Deposit Agreement shall apply to Uncertificated ADSs to
the same extent as to Certificated ADSs, except as contemplated by this Section
2.14. The Depositary is authorized and directed to take any and all actions and
establish any and all procedures deemed reasonably necessary to give effect to
the terms of this Section 2.14. Any references in this Deposit Agreement or any
ADR(s) to the terms "American Depositary Share(s)" or "ADS(s)" shall, unless the
context otherwise requires, include Certificated ADS(s) and Uncertificated
ADS(s). Except as set forth in this Section 2.14 and except as required by
applicable law, the Uncertificated ADSs shall be treated as ADSs issued and
outstanding under the terms of this Deposit Agreement. In the event that, in
determining the rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (I) the terms of this Deposit
Agreement (other than this Section 2.14) and (II) the terms of this Section
2.14, the terms and conditions set forth in this Section 2.14 shall be
controlling and shall govern the rights and obligations of the parties to this
Deposit Agreement pertaining to the Uncertificated ADSs."
SECTION 2.05. Electronic Distribution of Materials. To reflect the
Depositary's current practice of distributing Company's reports and voting
materials by electronic means, the Deposit Agreement is hereby amended as of the
Effective Date by:
(a) deleting the second, third and fourth sentence of the second
paragraph of Section 4.10(b) thereof in its entirety and inserting the following
in its stead:
"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 4.09 hereof) and shall, at the Company's
expense and provided no U.S. legal prohibitions exist, provide to Holders as of
the applicable ADS Record Date, (i) the Shareholder Notice, (ii) a depositary
notice setting forth the manner in which the 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, together with a form of voting
instructions and/or other means to provide voting instructions (the depositary
and the related materials prepared by the Depositary collectively, the
"Depositary Notice"). The Depositary is under no obligation to provide 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 ordinary
shareholders' meeting or at least 14 calendar days before any extraordinary
shareholders' meeting. If the Depositary has not provided the Shareholder Notice
15
or Depositary Notice to Holders, it will endeavor to cause all Deposited
Securities represented by ADSs 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, in its sole discretion, to provide such
Shareholder Notice and Depositary Notice to Holders and/or cause the Shares or
other Securities to be voted as it deems appropriate."
(b) adding the following as a new fourth paragraph to Section
4.10(b) thereof:
"Notwithstanding anything contained in the Deposit Agreement or any
ADR, the Depositary may, to the extent not prohibited by law, regulations or
applicable stock exchange requirements, in lieu of distribution of the materials
provided to the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, holders of Deposited Securities, distribute to the
Holders a notice that provides Holders with a means to retrieve such materials
or receive such materials upon request (i.e., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the
materials)."
(c) deleting the third sentence of Section 5.6 thereof in its
entirety and inserting the following in its stead:
"The Depositary shall arrange, at the request of the Company and at
the Company's expense, to provide 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 Shares or other 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."
SECTION 2.06. Miscellaneous.
(a) Principal Office. The definition of "Principal Office" in
Section 1.35 of the Deposit Agreement is, as of the Effective Date, deleted in
its entirety and in its stead the following is inserted:
"Section 1.35 "Principal Office" when used with respect to the
Depositary, shall mean the principal office of the Depositary at which at
any particular time its depositary receipts business shall be
administered, which, at the date of the Deposit Agreement, is located at
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, U.S.A."
(b) Notices. The second paragraph of "Notices" in Section 7.5 of the
Deposit Agreement is, as of the Effective Date, deleted in its entirety and in
its stead the following is inserted:
16
"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., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X. Attention: ADR Department, or to any other address which the
Depositary may specify in writing to the Company."
ARTICLE III
AMENDMENTS TO THE RECEIPTS
SECTION 3.01. Amendments to Receipts.
(a) The last sentence of the introductory paragraph of the form of
Receipt attached as Exhibit A to the Deposit Agreement and of each of the
Receipts issued and outstanding under the Deposit Agreement as of the Effective
Date are hereby amended as of the Effective Date by deleting such sentence in
its entirety and inserting the following in its stead: "The Depositary's
Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
U.S.A."
(b) The address of the Principal Office of the Depositary identified
on the bottom of the front page of the Receipt attached as Exhibit A to the
Deposit Agreement and of each of the Receipts issued and outstanding under the
Deposit Agreement as of the Effective Date is hereby amended as of the Effective
Date by identifying such address as "388 Greenwich Street, New York, New York
10013, U.S.A."
(c) The Depositary's fee identified as item (iii) in the first
sentence of paragraph (10) of the Receipt attached as Exhibit A to the Deposit
Agreement and of each of the Receipts issued and outstanding under the Deposit
Agreement as of the Effective Date is hereby amended as of the Effective Date by
deleting such item in its entirety and inserting the following in its stead
17
"to any Holder of ADRs, a fee not in excess of U.S. $ 5.00 per 100 ADSs
(or portion thereof) held for the distribution of cash dividends or other
cash distributions (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"
(d) The Depositary's fee identified as item (iv) in the first
sentence of paragraph (10) of the Receipt attached as Exhibit A to the Deposit
Agreement and of each of the Receipts issued and outstanding under the Deposit
Agreement as of the Effective Date is hereby amended as of the Effective Date by
deleting such item in its entirety and inserting the following in its stead
"(iv) to any Holder of ADRs, a fee not in excess of U.S. $ 5.00 per 100
ADSs (or portion thereof) held pursuant to stock dividends or other free
stock distributions or upon the exercise of rights, unless prohibited by
the exchange upon which the ADSs are listed."
(e) The first sentence of paragraph (1) of the form of Receipt
attached as Exhibit A to the Deposit Agreement and of each of the Receipts
issued and outstanding under the terms of the Deposit Agreement as of the
Effective Date is hereby amended as of the Effective Date by deleting such
sentence in its entirety and inserting the following in its stead:
"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 Second Amended and Restated Deposit
Agreement, dated as of June 7, 2000, as amended by Amendment No. 1 to
Deposit Agreement, dated as of [DATE], 2008 (as so amended and further
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
provisions thereof."
18
(f) The first sentence of paragraph (11) of the form of Receipt
attached as Exhibit A to the Deposit Agreement and of each of the Receipts
issued and outstanding under the terms of the Deposit Agreement as of the
Effective Date is hereby amended as of the Effective Date by deleting such
sentence in its entirety and inserting the following in its stead:
"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 Certificated 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, in the case of Certificated ADSs, the
Receipt has been properly endorsed or is accompanied by properly executed
instruments of transfer."
(g) The second, third and fourth sentence of the second paragraph of
paragraph (17)(b) of the form of Receipt attached as Exhibit A to the Deposit
Agreement and of each of the Receipts issued and outstanding under the terms of
the Deposit Agreement as of the Effective Date is hereby amended as of the
Effective Date by deleting such sentences in its entirety and inserting the
following in its stead:
"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 4.09 in the Deposit Agreement) and shall,
at the Company's expense and provided no U.S. legal prohibitions exist, provide
to Holders as of the applicable ADS Record Date, (i) the Shareholder Notice,
(ii) a depositary notice setting forth the manner in which the Holders of ADSs
may instruct the Depositary to cause the Deposited Securities represented by
their ADSs to be voted under the terms of the Deposit Agreement, together with a
form of voting instructions and/or other means to provide voting instructions
(the depositary and the related materials prepared by the Depositary
collectively, the "Depositary Notice"). The Depositary is under no obligation to
provide 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
ordinary shareholders' meeting or at least 14 calendar days before any
extraordinary shareholders' meeting. If the Depositary has not provided the
Shareholder Notice or Depositary Notice to Holders, it will endeavor to cause
all Deposited Securities represented by ADSs 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, in its sole discretion, to
provide such Shareholder Notice and Depositary Notice to Holders and/or cause
the Shares or other Securities to be voted as it deems appropriate."
19
SECTION 3.02. Addition to Receipts.
(a) Each of the Receipts issued and outstanding as of the Effective
Date and the form of Receipt attached as Exhibit A to the Deposit Agreement is
hereby amended as of the Effective Date to add the following Paragraphs (26) and
(27) at the end of the Receipt:
"(26) Right to Submit Proposals at Annual Ordinary Meeting of
Shareholders.
(a) Proposals by Shareholders.
The Company has informed the Depositary that under ROC Company Law,
as in effect as of the date of the Deposit Agreement, holders of one
percent (1%) or more of the total issued and outstanding Shares of the
Company as of the applicable record date for determining holders of Shares
with the right to vote at an annual ordinary meeting of the Company's
shareholders (the "Shareholder Proposal Record Date"), are entitled to
submit one (1) written proposal (such proposal shall not include a
Beneficial Owner's right to nominate candidates for election as directors
at a meeting of the Company's shareholders in accordance with the terms
and subject to the conditions of Section 4.17 of the Deposit Agreement,
the "Proposal") each year for consideration at the annual ordinary meeting
of the Company's shareholders, provided that: (i) the Proposal is in the
Chinese language and does not exceed 300 Chinese characters (including the
reason(s) for the Proposal and all punctuation marks) in length, (ii) the
Proposal is submitted to the Company prior to the expiration of the period
for submission of Proposals (the "Submission Period") announced by the
Company (which Submission Period and the place for eligible shareholders
to submit the Proposal the Company undertakes to announce publicly each
year in a report on Form 6-K submitted to the Commission prior to the
commencement of the 60 days closed period prior to the annual ordinary
meeting of the Company's shareholders), (iii) only one (1) matter for
consideration at the annual ordinary meeting of the Company's shareholders
shall be allowed in each Proposal, and (iv) the proposing shareholder
shall attend, in person or by a proxy, such annual ordinary meeting of the
Company's shareholders whereat his or her or its Proposal is to be
discussed in the Chinese language and such proposing shareholder, or his
or her or its proxy, shall take part in the discussion of such Proposal in
the Chinese language. As the holder of the Deposited Securities, the
Depositary or its nominee is entitled, provided the conditions of ROC law
are satisfied, to submit only one (1) Proposal each year in respect of all
of the Shares held on deposit as of the applicable Shareholder Proposal
Record Date. Holders and Beneficial Owners of ADSs do not under ROC law
have individual rights to submit Proposals to the Company for
consideration at the annual ordinary meeting of the Company's shareholders
but may be able to submit Proposals to the Company for consideration at
the annual ordinary meeting of the Company's shareholders if the
Beneficial Owners (i) timely present their ADSs to the Depositary for
cancellation pursuant to the terms of the Deposit Agreement and become
holders of Shares in the ROC prior to the expiration of the Submission
20
Period and prior to the applicable Shareholder Proposal Record Date, and
(ii) otherwise satisfy the conditions of ROC law applicable to the
submission of Proposals to the Company for consideration at an annual
ordinary meeting of the Company's shareholders. Beneficial Owners of ADSs
may not receive sufficient advance notice of an annual ordinary meeting of
the Company's shareholders to enable the timely withdrawal of Shares to
make a Proposal to the Company and may not be able to re-deposit under the
Deposit Agreement the Shares so withdrawn. The Company has informed the
Depositary that a Proposal shall only be voted upon at the annual ordinary
meeting of the Company's shareholders if the Proposal is accepted by the
board of directors of the Company as eligible in accordance with Article
172-1 of the ROC Company Law and the Company's Articles of Incorporation
for consideration at an annual ordinary meeting of the Company's
shareholders.
(b) Single Proposal by Depositary or its Nominee on behalf of
Beneficial Owners.
Holders and Beneficial Owners of ADSs do not have individual
proposal rights. The Depositary will, if so requested by (a) Beneficial
Owner(s) as of the applicable ADS Record Date that own(s), individually or
as a group, at least 51% of the ADSs outstanding as of the applicable ADS
Record Date (such Beneficial Owner(s), the "Submitting Holder(s)"), submit
to the Company for consideration at the annual ordinary meeting of the
Company's shareholders one (1) Proposal each year, provided that: (i) the
Proposal submitted to the Depositary by the Submitting Holder(s) is in the
Chinese language and does not exceed 300 Chinese characters (including the
reason(s) for the Proposal and all punctuation marks) in length, (ii) the
Proposal is submitted to the Depositary by the Submitting Holder(s) at
least two (2) Business Days prior to the expiration of the Submission
Period, (iii) the Proposal is accompanied by a written certificate signed
by each Submitting Holder, addressed to the Depositary and the Company and
in a form satisfactory to the Depositary and the Company (the "First
Proposal Certificate"), certifying, inter alia, (w) that each Submitting
Holder has only certified the said Proposal, (x) that the Submitting
Holder(s) own(s), individually or in the aggregate, at least 51% of the
ADSs outstanding as of the date the Proposal is submitted by the
Submitting Holder(s) to the Depositary (the "Proposal Submission Date"),
(y) if the Proposal Submission Date is (i) on or after the applicable ADS
Record Date, that the Submitting Holder(s) owned at least 51% of the ADSs
outstanding as of the applicable ADS Record Date, and (ii) prior to the
applicable ADS Record Date, that the Submitting Holder(s) will continue to
own at least 51% of the ADSs outstanding as of the applicable ADS Record
Date and will provide the Second Proposal Certificate, as defined below,
and (z) the name(s) and address(es) of the Submitting Holder(s) and the
number of ADSs owned by each Submitting Holder (together with certified
evidence of each Submitting Holder's ownership of the applicable ADSs as
of the Proposal Submission Date, in the case of (y)(ii) above, and the
applicable ADS Record Date, in the case of (y)(i) above), (iv) if the
21
Proposal Submission Date is prior to the applicable ADS Record Date, the
Submitting Holder(s) must also provide, within five (5) Business Days
after the applicable ADS Record Date, a second written certificate signed
by each Submitting Holder, addressed to the Depositary and the Company and
in a form satisfactory to the Depositary and the Company (the "Second
Proposal Certificate"), certifying, inter alia, that the Submitting
Holder(s) continued to own at least 51% of the ADSs outstanding as of the
applicable ADS Record Date (together with certified evidence of each
Submitting Holder's ownership of the applicable ADSs as of such applicable
ADS Record Date), (v) the Proposal is accompanied by a joint and several
irrevocable undertaking of all Submitting Holders (which undertaking may
be contained in the First Proposal Certificate or the Second Proposal
Certificate) that each such Submitting Holder shall pay all fees and
expenses incurred in relation to the submission of the Proposal for voting
at the annual ordinary meeting of the Company's shareholders (including,
but not limited to, the costs and expenses of the Submitting Holder(s), or
his, her, its or their representative, to attend the annual ordinary
meeting of the Company's shareholders), (vi) the Shares registered in the
name of the Depositary or its nominee as representative of the Holders and
Beneficial Owners constitute one percent (1%) or more of the total issued
and outstanding Shares of the Company as of the Shareholder Proposal
Record Date, (vii) such Proposal contains only one (1) matter for
consideration at the annual ordinary meeting of the Company's
shareholders, and (viii) the Submitting Holder(s), or his, her, its or
their representative, attend(s) the annual ordinary meeting of the
Company's shareholders and take(s) part in the discussions of the Proposal
in the Chinese language, provided further that only one (1) individual may
attend, and take part in the discussion of the Proposal at such annual
ordinary meeting on behalf of a Submitting Holder(s). Each Beneficial
Owner hereby agrees and acknowledges that (i) if the Submitting Holder(s),
or his, her, its or their representative, does not attend the annual
ordinary meeting of the Company's shareholders, the chairman of such
meeting may ask the attending shareholders to discuss, or not discuss, the
Proposal, and (ii) in no event shall a Submitting Holder's, or his, her,
its or their representative's, presence at an annual ordinary meeting of
the Company's shareholders entitle such Submitting Holder(s), or his, her,
its or their representative, to vote the Shares represented by such
Submitting Holder's ADSs (or any other ADSs) at such annual ordinary
meeting of the Company's shareholders.
Upon the timely receipt by the Depositary of any Proposal which the
Depositary reasonably believes to be in full compliance with the
immediately preceding paragraph, the Depositary shall submit a copy of
such Proposal and of the other materials received from the Submitting
Holder(s) to the Company prior to the expiration of the Submission Period.
Any Proposal so submitted as to which the Depositary has not received
within five (5) Business Days after the applicable ADS Record Date any
Second Proposal Certificate required under the immediately preceding
paragraph shall be deemed irrevocably withdrawn at the expiration of such
five (5) Business Day period. In the event the Depositary receives more
22
than one (1) Proposal by a Submitting Holder, or a group of Submitting
Holders, each of which appears to satisfy the requirements set forth in
the immediately preceding paragraph, the Depositary is hereby authorized
and instructed to disregard all Proposals received from such Submitting
Holder(s), except for the first Proposal received by the Depositary from
such Submitting Holder(s) and shall submit such Proposal to the Company
for consideration at the annual ordinary meeting of the Company's
shareholders in accordance with the terms of the Deposit Agreement. The
Depositary shall not have any obligation to verify the accuracy of the
information contained in any document submitted to it by the Submitting
Holder(s). Neither the Depositary nor its nominee shall be obligated to
attend and speak at the annual ordinary meeting of the Company's
shareholders on behalf of the Submitting Holder(s).
Notwithstanding anything contained in the Deposit Agreement or any
ADR and except that the Depositary shall arrange, at the request of the
Company and at the Company's expense, for the mailing to Holders of copies
of materials that the Company has made available to the Depositary for
such purpose, the Depositary shall not be obligated to provide to the
Holders or Beneficial Owners of ADSs any notices relating to the proposal
rights, including, without limitation, notice of the Submission Period, or
the receipt of any Proposal(s) from Submitting Holders, or of the holdings
of any ADSs by any persons, except that the Depositary shall, upon a
Holder's request, inform such Holder of the total number of ADSs then
issued and outstanding.
(27) Right to Submit Nominations at Meeting of Shareholders.
(a) No Right Absent Amendment to Articles of Incorporation.
No rights under this paragraph shall be effective absent an
amendment to the Company's Articles of Incorporation adopting a system
whereby candidates may be nominated by holders of Shares to serve on the
Company's board of directors (a "Candidate Nomination System") and any
rights so arising shall, at all times, be subject to the provisions of the
Company's Articles of Incorporation, as amended, and ROC Company Law, as
amended.
(b) Nominations by Shareholders.
The Company has informed the Depositary that under ROC Company Law,
in the event that the Company amends its Articles of Incorporation to
adopt a Candidate Nomination System, holders of one percent (1%) or more
of the total issued and outstanding Shares of the Company as of the
applicable record date for determining holders of Shares with the right to
vote at a meeting of the Company's shareholders (the "Candidate Nomination
Record Date"), would be entitled to submit a roster of candidates (the
"Nomination") to be considered for nomination to the Company's board of
directors at a meeting of the Company's shareholders involving the
election of directors, provided that: (i) the number of director
23
candidates contained in the Nomination shall not exceed the number of the
directors to be elected at such meeting, (ii) the Nomination is submitted
to the Company prior to the expiration of the period for submission of
Nominations (the "Nomination Submission Period") announced by the Company
(which Nomination Submission Period, the number of the directors to be
elected, the place for eligible shareholders to submit the Nomination and
other applicable information the Company undertakes to announce publicly
in a report on Form 6-K submitted to the Commission prior to the
commencement of the 60 days (for an ordinary meeting) or 30 days (for an
extraordinary meeting) closed period prior to the subject meeting of the
Company's shareholders), (iii) the Nomination shall contain the name,
educational background and past work experience of each director candidate
identified in the Nomination, (iv) the Nomination shall include a letter
of consent issued by each director candidate identified in the Nomination
consenting to act as director if she/he/it is elected as such, (v) a
written statement by each director candidate assuring that she/he/it is
not in violation of any of the circumstances set forth in Article 30 of
the ROC Company Law, as amended, (vi) if a director candidate is a
corporate shareholder of the Company (which cannot be the Depositary or
its nominee), or such corporate shareholder's representative, additional
information and documents reflecting the basic registration information of
such corporate shareholder and the document certifying the number of
Shares in its possession have been included, and (vii) any further
conditions under Article 192-1 of the ROC Company Law, as amended, and of
the Company's amended Articles of Incorporation are so satisfied. In the
event that the Company were to amend its Articles of Incorporation to
adopt a Candidate Nomination System, as holder of the Deposited
Securities, the Depositary or its nominee would be entitled, provided the
conditions of the Company's amended Articles of Incorporation are
satisfied, to submit only one (1) Nomination for each meeting involving
the election of directors in respect of all of the Shares held on deposit
as of the Candidate Nomination Record Date. The Company shall promptly
notify the Depositary of an amendment of its Articles of Incorporation
adopting a Candidate Nomination System. Holders and Beneficial Owners of
ADSs do not under ROC law have individual rights to submit Nominations to
the Company for consideration at a meeting of the Company's shareholders
involving the election of directors but may be able to submit a Nomination
to the Company for consideration at a meeting of the Company's
shareholders involving the election of directors if the Beneficial Owners
(i) timely present their ADSs to the Depositary for cancellation pursuant
to the terms of the Deposit Agreement and become holders of Shares in the
ROC prior to the expiration of the Nomination Submission Period and prior
to the Candidate Nomination Record Date, and (ii) otherwise satisfy the
conditions of ROC law applicable to the submission of Nominations to the
Company for consideration at a meeting of the Company's shareholders
involving the election of directors. Beneficial Owners of ADSs may not
receive sufficient advance notice of a meeting of the Company's
shareholders involving the election of directors to enable the timely
withdrawal of Shares to make a Nomination to the Company and may not be
24
able to re-deposit under the Deposit Agreement the Shares so withdrawn.
The Company has informed the Depositary that a Nomination shall only be
voted upon at a meeting of the Company's shareholders involving the
election of directors if the Nomination is accepted by the board of
directors of the Company as eligible in accordance with Article 192-1 of
the ROC Company Law and the Company's Article of Incorporation for
consideration at a meeting of the Company's shareholders involving the
election of directors.
(c) Single Nomination by Depositary or its Nominee on Behalf of
Beneficial Owners.
Holders and Beneficial Owners of ADSs do not have individual
nomination rights. In the event that the Company were to amend its
Articles of Incorporation to adopt a Candidate Nomination System, the
Depositary would, if so requested by (a) Beneficial Owner(s) as of the
applicable ADS Record Date that own(s), individually or as a group, at
least 51% of the ADSs outstanding as of the applicable ADS Record Date
(such Beneficial Owner(s), the "Nominating Holder(s)"), submit to the
Company for consideration at a meeting of the Company's shareholders
involving the election of directors one (1) Nomination, provided that: (i)
the number of director candidates contained in the Nomination shall not
exceed the number of the directors to be elected at such meeting, (ii) the
Nomination shall contain the name, educational background and past work
experience of each director candidate identified in the Nomination, (iii)
the Nomination shall include a letter of consent issued by each director
candidate identified in the Nomination consenting to act as director if
she/he/it is elected as such, (iv) a written statement by each director
candidate assuring that she/he/it is not in violation of any of the
circumstances set forth in Article 30 of the ROC Company Law, as amended,
(v) if a director candidate is corporate shareholder of the Company (which
cannot be the Depositary or its nominee), or such corporate shareholder's
representative, additional information and documents reflecting the basic
registration information of such corporate shareholder and the document
certifying the number of Shares in its possession have been included, (vi)
any further conditions under Article 192-1 of the ROC Company Law, as
amended, and of the Company's amended Articles of Incorporation are so
satisfied, (vii) the Nomination is submitted to the Depositary by the
Nominating Holder(s) at least two (2) Business Days prior to the
expiration of the Nomination Submission Period, (viii) the Nomination is
accompanied by a written certificate signed by each Nominating Holder,
addressed to the Depositary and the Company and in a form satisfactory to
the Depositary and the Company (the "First Nomination Certificate"),
certifying, inter alia, (w) that each Nominating Holder has only endorsed
the said Nomination, (x) that the Nominating Holder(s) own(s),
individually or in the aggregate, at least 51% of the ADSs outstanding as
of the date the Nomination is submitted by the Nominating Holder(s) to the
Depositary (the "Nomination Submission Date"), (y) if the Nomination
Submission Date is (i) on or after the applicable ADS Record Date, that
the Nominating Holder(s) owned at least 51% of the ADSs outstanding as of
the applicable ADS Record Date, and (ii) prior to the applicable ADS
25
Record Date, that the Nominating Holder(s) will continue to own at least
51% of the ADSs outstanding as of the applicable ADS Record Date and will
provide the Second Nomination Certificate, as defined below, and (z) the
name(s) and address(es) of the Nominating Holder(s) and the number of ADSs
owned by each Nominating Holder (together with certified evidence of each
Nominating Holder's ownership of the applicable ADSs as of the Nomination
Submission Date, in the case of (y)(ii) above, and the applicable ADS
Record Date, in the case of (y)(i) above), (ix) if the Nomination
Submission Date is prior to the applicable ADS Record Date, the Nominating
Holder(s) must also provide, within five (5) Business Days after the
applicable ADS Record Date, a second written certificate signed by each
Nominating Holder addressed to the Depositary and the Company and in a
form satisfactory to the Depositary and the Company (the "Second
Nomination Certificate"), certifying, inter alia, that the Nominating
Holder(s) continued to own at least 51% of the ADSs outstanding as of the
applicable ADS Record Date (together with certified evidence of each
Nominating Holder's ownership of the applicable ADSs as of such applicable
ADS Record Date), (x) the Nomination is accompanied by a joint and several
irrevocable undertaking of all Nominating Holders (which undertaking may
be contained in the First Nomination Certificate or the Second Nomination
Certificate) that each such Nominating Holder shall pay all fees and
expenses incurred in relation to the submission of the Nomination at the
meeting of the Company's shareholders, and (xi) the Shares registered in
the name of the Depositary or its nominee as representative of the Holders
and Beneficial Owners constitute one percent (1%) or more of the total
issued and outstanding Shares of the Company as of the Candidate
Nomination Record Date. Each Beneficial Owner hereby agrees and
acknowledges that in no event shall the Depositary or its nominee be
nominated by the Nominating Holder(s) for election as a director at a
meeting of the Company's shareholders.
Upon the timely receipt by the Depositary of any Nomination which
the Depositary reasonably believes to be in full compliance with the
immediately preceding paragraph, the Depositary shall submit a copy of
such Nomination and of the other materials received from the Nominating
Holder(s) to the Company prior to the expiration of the Nomination
Submission Period. Any Nomination so submitted as to which the Depositary
has not received within five (5) Business Days after the applicable ADS
Record Date any Second Nomination Certificate required under the
immediately preceding paragraph shall be deemed irrevocably withdrawn at
the expiration of such five (5) Business Day period. In the event the
Depositary receives more than one (1) Nomination by a Nominating Holder,
or a group of Nominating Holders, each of which appears to satisfy the
requirements set forth in the immediately preceding paragraph, the
Depositary is hereby authorized and instructed to disregard all
Nominations received from such Nominating Holder(s), except for the first
Nomination received by the Depositary from such Nominating Holder(s) and
shall submit such Nomination to the Company for consideration at a meeting
of the Company's shareholders involving the election of directors in
accordance with the terms of the Deposit Agreement. The Depositary shall
not have any obligation to verify the accuracy of the information
contained in any document submitted to it by the Nominating Holder(s).
Neither the Depositary nor its nominee shall be obligated to attend and
speak at the meeting of the Company's shareholders involving the election
of directors on behalf of the Nominating Holder(s).
26
Notwithstanding anything contained in the Deposit Agreement or any
ADR, and except that the Depositary shall arrange, at the request of the
Company and at the Company's expense, for the mailing to Holders of copies
of materials that the Company has made available to the Depositary for
such purpose, the Depositary shall not be obligated to provide to the
Holders or Beneficial Owners of ADSs any notices relating to the
nomination rights, including, without limitation, notice of the Nomination
Submission Period, or the receipt of any Nomination(s) from Nominating
Holders, or of the holdings of any ADSs by any persons, except that the
Depositary shall, upon a Holder's request, inform such Holder of the total
number of ADSs then issued and outstanding."
(b) Each of the Receipts issued and outstanding as of the Effective
Date and the form of Receipt attached as Exhibit A to the Deposit Agreement is
hereby amended as of the Effective Date to add the following as a new fourth
paragraph to Paragraph (17)(b) thereof:
"Notwithstanding anything contained in the Deposit Agreement or any
ADR, the Depositary may, to the extent not prohibited by law, regulations or
applicable stock exchange requirements, in lieu of distribution of the materials
provided to the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, holders of Deposited Securities, distribute to the
Holders a notice that provides Holders with a means to retrieve such materials
or receive such materials upon request (i.e., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the
materials)."
ARTICLE IV
AMENDMENT TO THE FEE SCHEDULE
SECTION 4.01. Amendment to Fee Schedule.
(a) Provision (3) setting forth the service, applicable rate and
payor under the Depositary Fees section of the Fee Schedule attached as Exhibit
B to the Deposit Agreement is hereby amended as of the Effective Date by
deleting such entry in its entirety and inserting the following in its stead:
27
-----------------------------------------------------------------------------------------
(3) Distribution of cash Up to $5.00 per 100 ADSs (or Person to whom
dividends or other fraction thereof) held, unless distribution is made.
cash distributions prohibited by the exchange upon
(i.e., sale of which the ADSs are listed.
rights and other
entitlements).
-----------------------------------------------------------------------------------------
(b) Provision (4) setting forth the service, applicable rate and
payor under the Depositary Fees section of the Fee Schedule attached as Exhibit
B to the Deposit Agreement is hereby amended as of the Effective Date by
deleting such entry in its entirety and inserting the following in its stead:
--------------------------------------------------------------------------------------------
"(4) Distribution of ADSs Up to $5.00 per 100 ADSs (or Person to whom distribution
pursuant to (i) stock fraction thereof) held, is made."
dividends or other free unless prohibited by the
stock distributions, or exchange upon which the ADSs
(ii) exercise of rights. are listed.
--------------------------------------------------------------------------------------------
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01. Representations and Warranties The Company represents and
warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and
the Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly and
validly authorized, executed and delivered by the Company, and constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
28
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and other document furnished hereunder or thereunder in the
Republic of China, neither of such agreements need to be filed or recorded with
any court or other authority in the Republic of China, except for filing this
Amendment with the Financial Supervisory Commission, nor does any stamp or
similar tax need be paid in the Republic of China on or in respect of such
agreements; and
(c) None of the terms of this Amendment violate or conflict with,
nor does the execution and delivery of this Amendment, the filing of the related
Registation Statement on Form F-6 or the consummation of the transactions
contemplated therein violate or conflict with any agreement to which the Company
is a party or by which the Company is bound; and
(d) All of the information provided to the Depositary by the Company
in connection with this Amendment is true, accurate and correct.
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. New Receipts. From and after the Effective Date, the
Depositary shall arrange to have new Receipts printed or amended that reflect
the changes to the form of Receipt effected by this Amendment. All Receipts
issued hereunder after the Effective Date, once such new Receipts are available,
whether upon the deposit of Shares or other Deposited Securities or upon the
transfer, combination or split-up of existing Receipts, shall be substantially
in the form of the specimen Receipt attached as Exhibit A hereto. However,
Receipts issued prior or subsequent to the date hereof, which do not reflect the
changes to the form of Receipt effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof
choose to surrender them for any reason under the Deposit Agreement. The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
29
SECTION 6.02. Notice of Amendment to Holders. The Depositary is hereby
directed to send notices informing the Holders (i) of the terms of this
Amendment, (ii) of the Effective Date of this Amendment, and (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to
substitute their Receipts with new Receipts reflecting the changes effected by
this Amendment, as provided in Section 6.01 hereof.
SECTION 6.03. Indemnification. The Company hereby agrees that, to the
extent the Depositary (or any of its directors, employees and officers) incurs
any liability as a result of the terms of this Amendment and the transactions
contemplated herein, the Depositary (and all of its directors, employees and
officers) shall be indemnified and held harmless by the Company in the manner
provided for in Section 5.8 of the Deposit Agreement.
SECTION 6.04. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
SECTION 6.05. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in that State.
SECTION 6.06. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, and all such
counterparts together shall be deemed an original, and all such counterparts
together shall constitute one and the same instrument.
30
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
SILICONWARE PRECISION INDUSTRIES CO., LTD.
BY:
--------------------------------------
Name: Xxxxx Xxx
Title: Chairman of the Board
CITIBANK, N.A., AS DEPOSITARY
By:
--------------------------------------
Name:
Title:
31
EXHIBIT A
FORM OF AMERICAN DEPOSITARY RECEIPT
Number _____________ CUSIP NUMBER: 000000000
[American Depositary Shares
(each American Depositary Share
representing five (5) Fully Paid
shares of common stock, par
NT$10.00 per share)]
[PC American Depositary Shares
(each PC American Depositary
Share representing an undivided
interest in a global payment
certificate, each interest
representing the irrevocable
right to receive five (5) Fully
Paid shares of common stock par
value NT$10.00 per share)]
[EC American Depositary Shares
(each EC American Depositary
Share representing an undivided
interest in an Entitlement
Certificate, each interest
representing the irrevocable
right to receive five (5) shares
of common stock par NT$10.00 per
share)]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
[DEPOSITED SHARES OF COMMON STOCK]
[INTERESTS IN THE DEPOSITED PAYMENT CERTIFICATE(S)]
[DEPOSITED ENTITLEMENT CERTIFICATES]
of
SILICONWARE PRECISION INDUSTRIES CO., LTD.
(Incorporated under the laws of Taiwan, Republic of China)
X-0
XXXXXXXX, 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 [shares
of common stock] [interests in a global payment certificate representing the
irrevocable right to receive shares of common stock] [Entitlement Certificates
representing the irrevocable right to receive shares of common stock], par value
NT$10.00 per share, including evidence of rights to receive such [shares of
common stock (the "Shares")] [interests in the global payment certificate (the
"Payment Certificate(s)"][Entitlement Certificates (the "Entitlement
Certificates")] (such [Shares][Payment Certificate(s)][Entitlement Certificates]
are hereafter called "Eligible Securities") of Siliconware Precision Industries
Co., Ltd., a corporation incorporated under the laws of Taiwan, Republic of
China (the "Company"). As of the date of the Deposit Agreement (as hereinafter
defined), each ADS represents [five (5) Shares][an undivided interest in an
Entitlement Certificate, each interest representing the irrevocable right to
receive five (5) Shares][an undivided interest in a global payment certificate,
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 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, X.X.X.
A-2
(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 Second Amended and Restated
Deposit Agreement, dated as of June 7, 2000, as amended by Amendment No. 1 to
Deposit Agreement, dated as of [DATE], 2008 (as so amended and further 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 provisions 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.
A-3
(2) Surrender of Receipts and Withdrawal of Deposited Securities. The
Depositary and the Company have been advised that under ROC law interests in the
Payment Certificate cannot be withdrawn or sold under the terms of the Deposit
Agreement. [Commencing three months after the closing of the Offering a holder
is entitled to withdraw or sell Shares or Entitlement Certificates from the ADR
facility.] A Holder wishing to withdraw [Shares] [Entitlement Certificates]
[Deposited Securities] from the ADR facility is required under ROC law to
appoint an 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 subsequently sell the Deposited Securities withdrawn from the
ADR Facilities on the TSE or otherwise.
(b) Sale of Deposited Securities. Upon surrender of Receipts at the
Principal Office and upon payment of any fees, expenses, taxes or other
governmental charges as provided hereunder, subject to the terms of this Deposit
Agreement, 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 Holders' behalf. Any Holder requesting a sale
A-4
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, 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.
(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
A-5
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 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 rules of the TSE and 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
A-6
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 the rules of the TSE and 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
one Eligible Security. 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
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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
register the transfer of this Receipt (and of the ADSs represented thereby) on
the books maintained for such purpose and the Depositary shall 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 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 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.
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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 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 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 charge 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
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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. In addition,
the Depositary and the Custodian shall refuse to accept Shares for deposit (i)
whenever notified, as provided in the Deposit Agreement that the Company has
restricted transfer of such Shares to comply with delivery or transfer
requirements and/or ownership restrictions referred to in the Deposit Agreement
or under applicable law, or (ii) in the case of a deposit of Shares requested
under the terms of Section 2.3 (iv) of the Deposit Agreement, if such deposit is
not permitted under any restriction notified by the Company to the Depositary
from time to time, which restrictions may specify black-out periods during which
deposits may not be made, minimum or maximum numbers of Shares and frequencies
of deposit.
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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).
(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 ROC law, 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, 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
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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 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
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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 may be asked to indemnify the Depositary, the Company, the
Custodian, and any of their agents, employees and Affiliates for, and hold each
of them harmless from, any claims with respect to taxes (including applicable
interest and penalties thereon) arising from any inaccuracy in the information
provided by such Holder and/or Beneficial Owner in connection with obtaining any
tax benefit 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 the 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.
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(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 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 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:
(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
(including ADSs issued upon deposits of Entitlement Certificates
upon the conversion of Bonds, but excluding issuances pursuant to
paragraph (iv) below);
A-14
(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. $ 5.00 per 100
ADSs (or portion thereof) held for the distribution of cash
dividends or other cash distributions (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) held pursuant to stock dividends or other
free stock distributions or upon the exercise of rights, unless
prohibited by the exchange upon which the ADSs are listed.
In addition, Holders, Beneficial Owners, persons 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;
A-15
(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 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.
A-16
(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 Certificated 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, in the case of
Certificated ADSs, the 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 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.
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(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. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000 and at the Commission's New York City office located at
Seven World Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. 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.
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Dated:
CITIBANK, N.A. CITIBANK, N.A.,
Transfer Agent and Registrar as Depositary
By: ___________________________ By: _________________________
Authorized Signatory Authorized Signatory
The address of the Principal Office of the Depositary is 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-19
[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 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 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
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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
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 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
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.
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In the event that 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 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), 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 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) 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
A-22
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 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. If and whenever the Company shall announce its
intention to make any offer or invitation to the holders of Eligible Securities
to subscribe for or to acquire Eligible Securities or other assets by way of
rights, the Depositary shall as soon as practicable thereafter give notice of
the same to the Holders, including if applicable, the last date for acceptance
thereof and the manner by which and the time during which Holders may instruct
the Depositary to exercise such rights. The Depositary shall make such rights
available to any Holders only if (i) the Company shall have timely requested the
Depositary to make such rights available to Holders, (ii) the Depositary shall
have received the documentation contemplated in the Deposit Agreement, and (iii)
A-23
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 the Depositary that the rights not be
made available to Holders of ADSs, the Depositary shall proceed with the sale of
rights as contemplated below. In the event that the 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 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 reasonably practicable. The Depositary shall, upon such sale, convert and
distribute proceeds of such sale (net of applicable fees and charges of, and
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
A-24
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
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary
opinion(s) 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.
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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 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.
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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 (a)
applicable fees and charges of, and 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) mail 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 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
expenses incurred by, the Depositary, and taxes) multiplied by the number of
Units or Deposited Securities represented by each ADS redeemed.
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(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.
(17) Voting of Deposited Securities. (a) Voting by Shareholders. The
following is a summary of certain rights of holders of [Shares] [interests in
the global payment certificate(s)] [Entitlement Certificate(s)] to vote at
shareholders' meetings under ROC Company Law and the Articles of Incorporation
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of the Company, in each case, as in effect on the date hereof: (i) a holder of
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 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,
(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. Deposited
Securities which have been withdrawn from the applicable depositary receipts
facility 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
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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, the
requisite number of copies requested by the Depositary of an English language
translation 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, 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 4.09 in the Deposit Agreement) and
shall, at the Company's expense and provided no U.S. legal prohibitions exist,
provide to Holders as of the applicable ADS Record Date, (i) the Shareholder
Notice, (ii) a depositary notice setting forth the manner in which the Holders
of ADSs may instruct the Depositary to cause the Deposited Securities
represented by their ADSs to be voted under the terms of the Deposit Agreement,
together with a form of voting instructions and/or other means to provide voting
instructions (the depositary and the related materials prepared by the
Depositary collectively, the "Depositary Notice"). The Depositary is under no
obligation to provide 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 ordinary shareholders' meeting or at least 14 calendar days before
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any extraordinary shareholders' meeting. If the Depositary has not provided the
Shareholder Notice or Depositary Notice to Holders, it will endeavor to cause
all Deposited Securities represented by ADSs 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, in its sole discretion, to
provide such Shareholder Notice and Depositary Notice to Holders and/or cause
the Shares or other 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. The Company
agrees to take any and all actions reasonably necessary to enable Holders and
Beneficial Owners to exercise the voting rights accruing to the Deposited
Securities and to deliver to the Depositary an opinion of U.S. counsel
addressing any actions requested to be taken if so requested by the Depositary.
Notwithstanding anything contained in the Deposit Agreement or any ADR,
the Depositary may, to the extent not prohibited by law, regulations or
applicable stock exchange requirements, in lieu of distribution of the materials
provided to the Depositary in connection with any meeting of, or solicitation of
consents or proxies from, holders of Deposited Securities, distribute to the
Holders a notice that provides Holders with a means to retrieve such materials
or receive such materials upon request (i.e., by reference to a website
containing the materials for retrieval or a contact for requesting copies of the
materials).
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(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 as of the ADS Record Date (including
resolutions for the election of directors and/or supervisors), the Depositary
shall notify 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
Registered Holder to attend such shareholders' meeting and vote all Deposited
Securities evidenced by ADSs then outstanding as of the ADS Record Date
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 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) Depositary Authorization. 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 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 (excluding resolutions
A-32
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 authorize (the "Depositary Authorization") the Chairman of the
Company (or his/her designate) as the representative of the Registered Holders
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
she/he wishes, which may not be in the interests of the Holders.
The Depositary Authorization provided 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 Depositary Authorization 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.
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 of 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.
A-33
(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 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 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
A-34
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,
A-35
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.
(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 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 without negligence and in
accordance with the terms of the 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
A-36
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 the Deposit
Agreement, for the failure or timeliness of any notice from the Company. Nothing
in this Receipt or in the Deposit Agreement shall cause the Depositary or any of
its agents to incur any liability as a result of any action or failure to act by
any trustee under the Trust Deed governing the Bonds.
(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 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 predecessor. The predecessor depositary, upon payment of all
A-37
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
A-38
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 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
A-39
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 the Deposit Agreement and subject to the conditions
and restrictions therein set forth, 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,
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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. 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 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 always to the
laws and regulations of the Republic of China and 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 the Depositary may, to the extent
permitted by applicable law, (i) issue ADSs prior to the receipt of Eligible
Securities pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver
A-41
Deposited Securities prior to the receipt of ADSs for 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 a "Pre-Release Transaction"). The
Depositary may receive ADSs in lieu of Eligible Securities under (i) above and
receive Eligible Securities in lieu of ADSs under (ii) above. Each such
Pre-Release Transaction will be (a) subject to a written agreement whereby the
person or entity (the "Applicant") to whom ADSs or Deposited Securities are to
be delivered (w) represents that at the time of the Pre-Release Transaction the
Applicant or its customer owns the Eligible Securities or ADSs 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 or ADSs in its
records and to hold such Eligible Securities or ADSs 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 disregard such limit from time to time as it
deems appropriate.
A-42
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 PC
ADSs, Temporary EC ADSs, Payment Certificates and Entitlement Certificates shall
not be eligible for Pre-Release Transactions hereunder.
In addition, in its capacity as Depositary, the Depositary may, when a
Holder of ADRs so requests, cause the Deposited Shares to be sold and deliver
the proceeds of the sale prior to the receipt and cancellation of ADSs (each
such transaction a "Pre-Cancellation Sale") prior to the receipt of ADSs for
cancellation. Each such Pre-Cancellation Sale will be (a) accompanied by or
subject to a written agreement whereby the person or entity (the "Applicant") to
whom the proceeds of the sale of Deposited Securities are to be delivered which,
(i) represents that at the time of the Pre-Cancellation Sale the Applicant or
its customer owns the ADSs that are to be delivered by the Applicant under such
Pre-Cancellation Sale, (ii) agrees to indicate the Depositary owner of such ADSs
in its records and to hold such ADSs in trust for the Depositary until such ADSs
are delivered to the Depositary, (iii) unconditionally guarantees to deliver to
the Depositary such ADSs, and (iv) 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.
A-43
The Depositary will normally limit the number of Deposited Securities
involved in such Pre-Cancellation Sales at any one time to thirty percent (30%)
of the Deposited Securities outstanding, provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate.
(26) Right to Submit Proposals at Annual Ordinary Meeting of Shareholders.
(a) Proposals by Shareholders.
The Company has informed the Depositary that under ROC Company Law,
as in effect as of the date of the Deposit Agreement, holders of one percent
(1%) or more of the total issued and outstanding Shares of the Company as of the
applicable record date for determining holders of Shares with the right to vote
at an annual ordinary meeting of the Company's shareholders (the "Shareholder
Proposal Record Date"), are entitled to submit one (1) written proposal (such
proposal shall not include a Beneficial Owner's right to nominate candidates for
election as directors at a meeting of the Company's shareholders in accordance
with the terms and subject to the conditions of Section 4.17 of the Deposit
Agreement, the "Proposal") each year for consideration at the annual ordinary
meeting of the Company's shareholders, provided that: (i) the Proposal is in the
Chinese language and does not exceed 300 Chinese characters (including the
reason(s) for the Proposal and all punctuation marks) in length, (ii) the
Proposal is submitted to the Company prior to the expiration of the period for
submission of Proposals (the "Submission Period") announced by the Company
(which Submission Period and the place for eligible shareholders to submit the
Proposal the Company undertakes to announce publicly each year in a report on
Form 6-K submitted to the Commission prior to the commencement of the 60 days
closed period prior to the annual ordinary meeting of the Company's
shareholders), (iii) only one (1) matter for consideration at the annual
ordinary meeting of the Company's shareholders shall be allowed in each
A-44
Proposal, and (iv) the proposing shareholder shall attend, in person or by a
proxy, such annual ordinary meeting of the Company's shareholders whereat his or
her or its Proposal is to be discussed in the Chinese language and such
proposing shareholder, or his or her or its proxy, shall take part in the
discussion of such Proposal in the Chinese language. As the holder of the
Deposited Securities, the Depositary or its nominee is entitled, provided the
conditions of ROC law are satisfied, to submit only one (1) Proposal each year
in respect of all of the Shares held on deposit as of the applicable Shareholder
Proposal Record Date. Holders and Beneficial Owners of ADSs do not under ROC law
have individual rights to submit Proposals to the Company for consideration at
the annual ordinary meeting of the Company's shareholders but may be able to
submit Proposals to the Company for consideration at the annual ordinary meeting
of the Company's shareholders if the Beneficial Owners (i) timely present their
ADSs to the Depositary for cancellation pursuant to the terms of the Deposit
Agreement and become holders of Shares in the ROC prior to the expiration of the
Submission Period and prior to the applicable Shareholder Proposal Record Date,
and (ii) otherwise satisfy the conditions of ROC law applicable to the
submission of Proposals to the Company for consideration at an annual ordinary
meeting of the Company's shareholders. Beneficial Owners of ADSs may not receive
sufficient advance notice of an annual ordinary meeting of the Company's
shareholders to enable the timely withdrawal of Shares to make a Proposal to the
Company and may not be able to re-deposit under the Deposit Agreement the Shares
so withdrawn. The Company has informed the Depositary that a Proposal shall only
be voted upon at the annual ordinary meeting of the Company's shareholders if
the Proposal is accepted by the board of directors of the Company as eligible in
accordance with Article 172-1 of the ROC Company Law and the Company's Articles
of Incorporation for consideration at an annual ordinary meeting of the
Company's shareholders.
A-45
(b) Single Proposal by Depositary or its Nominee on behalf of
Beneficial Owners.
Holders and Beneficial Owners of ADSs do not have individual
proposal rights. The Depositary will, if so requested by (a) Beneficial Owner(s)
as of the applicable ADS Record Date that own(s), individually or as a group, at
least 51% of the ADSs outstanding as of the applicable ADS Record Date (such
Beneficial Owner(s), the "Submitting Holder(s)"), submit to the Company for
consideration at the annual ordinary meeting of the Company's shareholders one
(1) Proposal each year, provided that: (i) the Proposal submitted to the
Depositary by the Submitting Holder(s) is in the Chinese language and does not
exceed 300 Chinese characters (including the reason(s) for the Proposal and all
punctuation marks) in length, (ii) the Proposal is submitted to the Depositary
by the Submitting Holder(s) at least two (2) Business Days prior to the
expiration of the Submission Period, (iii) the Proposal is accompanied by a
written certificate signed by each Submitting Holder, addressed to the
Depositary and the Company and in a form satisfactory to the Depositary and the
Company (the "First Proposal Certificate"), certifying, inter alia, (w) that
each Submitting Holder has only certified the said Proposal, (x) that the
Submitting Holder(s) own(s), individually or in the aggregate, at least 51% of
the ADSs outstanding as of the date the Proposal is submitted by the Submitting
Holder(s) to the Depositary (the "Proposal Submission Date"), (y) if the
Proposal Submission Date is (i) on or after the applicable ADS Record Date, that
the Submitting Holder(s) owned at least 51% of the ADSs outstanding as of the
applicable ADS Record Date, and (ii) prior to the applicable ADS Record Date,
that the Submitting Holder(s) will continue to own at least 51% of the ADSs
A-46
outstanding as of the applicable ADS Record Date and will provide the Second
Proposal Certificate, as defined below, and (z) the name(s) and address(es) of
the Submitting Holder(s) and the number of ADSs owned by each Submitting Holder
(together with certified evidence of each Submitting Holder's ownership of the
applicable ADSs as of the Proposal Submission Date, in the case of (y)(ii)
above, and the applicable ADS Record Date, in the case of (y)(i) above), (iv) if
the Proposal Submission Date is prior to the applicable ADS Record Date, the
Submitting Holder(s) must also provide, within five (5) Business Days after the
applicable ADS Record Date, a second written certificate signed by each
Submitting Holder, addressed to the Depositary and the Company and in a form
satisfactory to the Depositary and the Company (the "Second Proposal
Certificate"), certifying, inter alia, that the Submitting Holder(s) continued
to own at least 51% of the ADSs outstanding as of the applicable ADS Record Date
(together with certified evidence of each Submitting Holder's ownership of the
applicable ADSs as of such applicable ADS Record Date), (v) the Proposal is
accompanied by a joint and several irrevocable undertaking of all Submitting
Holders (which undertaking may be contained in the First Proposal Certificate or
the Second Proposal Certificate) that each such Submitting Holder shall pay all
fees and expenses incurred in relation to the submission of the Proposal for
voting at the annual ordinary meeting of the Company's shareholders (including,
but not limited to, the costs and expenses of the Submitting Holder(s), or his,
her, its or their representative, to attend the annual ordinary meeting of the
Company's shareholders), (vi) the Shares registered in the name of the
Depositary or its nominee as representative of the Holders and Beneficial Owners
constitute one percent (1%) or more of the total issued and outstanding Shares
of the Company as of the Shareholder Proposal Record Date, (vii) such Proposal
contains only one (1) matter for consideration at the annual ordinary meeting of
the Company's shareholders, and (viii) the Submitting Holder(s), or his, her,
A-47
its or their representative, attend(s) the annual ordinary meeting of the
Company's shareholders and take(s) part in the discussions of the Proposal in
the Chinese language, provided further that only one (1) individual may attend,
and take part in the discussion of the Proposal at such annual ordinary meeting
on behalf of a Submitting Holder(s). Each Beneficial Owner hereby agrees and
acknowledges that (i) if the Submitting Holder(s), or his, her, its or their
representative, does not attend the annual ordinary meeting of the Company's
shareholders, the chairman of such meeting may ask the attending shareholders to
discuss, or not discuss, the Proposal, and (ii) in no event shall a Submitting
Holder's, or his, her, its or their representative's, presence at an annual
ordinary meeting of the Company's shareholders entitle such Submitting
Holder(s), or his, her, its or their representative, to vote the Shares
represented by such Submitting Holder's ADSs (or any other ADSs) at such annual
ordinary meeting of the Company's shareholders.
Upon the timely receipt by the Depositary of any Proposal which the
Depositary reasonably believes to be in full compliance with the immediately
preceding paragraph, the Depositary shall submit a copy of such Proposal and of
the other materials received from the Submitting Holder(s) to the Company prior
to the expiration of the Submission Period. Any Proposal so submitted as to
which the Depositary has not received within five (5) Business Days after the
applicable ADS Record Date any Second Proposal Certificate required under the
immediately preceding paragraph shall be deemed irrevocably withdrawn at the
expiration of such five (5) Business Day period. In the event the Depositary
receives more than one (1) Proposal by a Submitting Holder, or a group of
Submitting Holders, each of which appears to satisfy the requirements set forth
in the immediately preceding paragraph, the Depositary is hereby authorized and
instructed to disregard all Proposals received from such Submitting Holder(s),
A-48
except for the first Proposal received by the Depositary from such Submitting
Holder(s) and shall submit such Proposal to the Company for consideration at the
annual ordinary meeting of the Company's shareholders in accordance with the
terms of the Deposit Agreement. The Depositary shall not have any obligation to
verify the accuracy of the information contained in any document submitted to it
by the Submitting Holder(s). Neither the Depositary nor its nominee shall be
obligated to attend and speak at the annual ordinary meeting of the Company's
shareholders on behalf of the Submitting Holder(s).
Notwithstanding anything contained in the Deposit Agreement or any
ADR and except that the Depositary shall arrange, at the request of the Company
and at the Company's expense, for the mailing to Holders of copies of materials
that the Company has made available to the Depositary for such purpose, the
Depositary shall not be obligated to provide to the Holders or Beneficial Owners
of ADSs any notices relating to the proposal rights, including, without
limitation, notice of the Submission Period, or the receipt of any Proposal(s)
from Submitting Holders, or of the holdings of any ADSs by any persons, except
that the Depositary shall, upon a Holder's request, inform such Holder of the
total number of ADSs then issued and outstanding.
(27) Right to Submit Nominations at Meeting of Shareholders.
(a) No Right Absent Amendment to Articles of Incorporation.
No rights under this paragraph shall be effective absent an
amendment to the Company's Articles of Incorporation adopting a system whereby
candidates may be nominated by holders of Shares to serve on the Company's board
of directors (a "Candidate Nomination System") and any rights so arising shall,
at all times, be subject to the provisions of the Company's Articles of
Incorporation, as amended, and ROC Company Law, as amended.
A-49
(b) Nominations by Shareholders.
The Company has informed the Depositary that under ROC Company Law,
in the event that the Company amends its Articles of Incorporation to adopt a
Candidate Nomination System, holders of one percent (1%) or more of the total
issued and outstanding Shares of the Company as of the applicable record date
for determining holders of Shares with the right to vote at a meeting of the
Company's shareholders (the "Candidate Nomination Record Date"), would be
entitled to submit a roster of candidates (the "Nomination") to be considered
for nomination to the Company's board of directors at a meeting of the Company's
shareholders involving the election of directors, provided that: (i) the number
of director candidates contained in the Nomination shall not exceed the number
of the directors to be elected at such meeting, (ii) the Nomination is submitted
to the Company prior to the expiration of the period for submission of
Nominations (the "Nomination Submission Period") announced by the Company (which
Nomination Submission Period, the number of the directors to be elected, the
place for eligible shareholders to submit the Nomination and other applicable
information the Company undertakes to announce publicly in a report on Form 6-K
submitted to the Commission prior to the commencement of the 60 days (for an
ordinary meeting) or 30 days (for an extraordinary meeting) closed period prior
to the subject meeting of the Company's shareholders), (iii) the Nomination
shall contain the name, educational background and past work experience of each
director candidate identified in the Nomination, (iv) the Nomination shall
include a letter of consent issued by each director candidate identified in the
A-50
Nomination consenting to act as director if she/he/it is elected as such, (v) a
written statement by each director candidate assuring that she/he/it is not in
violation of any of the circumstances set forth in Article 30 of the ROC Company
Law, as amended, (vi) if a director candidate is a corporate shareholder of the
Company (which cannot be the Depositary or its nominee), or such corporate
shareholder's representative, additional information and documents reflecting
the basic registration information of such corporate shareholder and the
document certifying the number of Shares in its possession have been included,
and (vii) any further conditions under Article 192-1 of the ROC Company Law, as
amended, and of the Company's amended Articles of Incorporation are so
satisfied. In the event that the Company were to amend its Articles of
Incorporation to adopt a Candidate Nomination System, as holder of the Deposited
Securities, the Depositary or its nominee would be entitled, provided the
conditions of the Company's amended Articles of Incorporation are satisfied, to
submit only one (1) Nomination for each meeting involving the election of
directors in respect of all of the Shares held on deposit as of the Candidate
Nomination Record Date. The Company shall promptly notify the Depositary of an
amendment of its Articles of Incorporation adopting a Candidate Nomination
System. Holders and Beneficial Owners of ADSs do not under ROC law have
individual rights to submit Nominations to the Company for consideration at a
meeting of the Company's shareholders involving the election of directors but
may be able to submit a Nomination to the Company for consideration at a meeting
of the Company's shareholders involving the election of directors if the
Beneficial Owners (i) timely present their ADSs to the Depositary for
cancellation pursuant to the terms of the Deposit Agreement and become holders
of Shares in the ROC prior to the expiration of the Nomination Submission Period
and prior to the Candidate Nomination Record Date, and (ii) otherwise satisfy
the conditions of ROC law applicable to the submission of Nominations to the
A-51
Company for consideration at a meeting of the Company's shareholders involving
the election of directors. Beneficial Owners of ADSs may not receive sufficient
advance notice of a meeting of the Company's shareholders involving the election
of directors to enable the timely withdrawal of Shares to make a Nomination to
the Company and may not be able to re-deposit under the Deposit Agreement the
Shares so withdrawn. The Company has informed the Depositary that a Nomination
shall only be voted upon at a meeting of the Company's shareholders involving
the election of directors if the Nomination is accepted by the board of
directors of the Company as eligible in accordance with Article 192-1 of the ROC
Company Law and the Company's Article of Incorporation for consideration at a
meeting of the Company's shareholders involving the election of directors.
(c) Single Nomination by Depositary or its Nominee on Behalf
of Beneficial Owners.
Holders and Beneficial Owners of ADSs do not have individual
nomination rights. In the event that the Company were to amend its Articles of
Incorporation to adopt a Candidate Nomination System, the Depositary would, if
so requested by (a) Beneficial Owner(s) as of the applicable ADS Record Date
that own(s), individually or as a group, at least 51% of the ADSs outstanding as
of the applicable ADS Record Date (such Beneficial Owner(s), the "Nominating
Holder(s)"), submit to the Company for consideration at a meeting of the
Company's shareholders involving the election of directors one (1) Nomination,
provided that: (i) the number of director candidates contained in the Nomination
shall not exceed the number of the directors to be elected at such meeting, (ii)
the Nomination shall contain the name, educational background and past work
experience of each director candidate identified in the Nomination, (iii) the
Nomination shall include a letter of consent issued by each director candidate
identified in the Nomination consenting to act as director if she/he/it is
A-52
elected as such, (iv) a written statement by each director candidate assuring
that she/he/it is not in violation of any of the circumstances set forth in
Article 30 of the ROC Company Law, as amended, (v) if a director candidate is
corporate shareholder of the Company (which cannot be the Depositary or its
nominee), or such corporate shareholder's representative, additional information
and documents reflecting the basic registration information of such corporate
shareholder and the document certifying the number of Shares in its possession
have been included, (vi) any further conditions under Article 192-1 of the ROC
Company Law, as amended, and of the Company's amended Articles of Incorporation
are so satisfied, (vii) the Nomination is submitted to the Depositary by the
Nominating Holder(s) at least two (2) Business Days prior to the expiration of
the Nomination Submission Period, (viii) the Nomination is accompanied by a
written certificate signed by each Nominating Holder, addressed to the
Depositary and the Company and in a form satisfactory to the Depositary and the
Company (the "First Nomination Certificate"), certifying, inter alia, (w) that
each Nominating Holder has only endorsed the said Nomination, (x) that the
Nominating Holder(s) own(s), individually or in the aggregate, at least 51% of
the ADSs outstanding as of the date the Nomination is submitted by the
Nominating Holder(s) to the Depositary (the "Nomination Submission Date"), (y)
if the Nomination Submission Date is (i) on or after the applicable ADS Record
Date, that the Nominating Holder(s) owned at least 51% of the ADSs outstanding
as of the applicable ADS Record Date, and (ii) prior to the applicable ADS
Record Date, that the Nominating Holder(s) will continue to own at least 51% of
the ADSs outstanding as of the applicable ADS Record Date and will provide the
Second Nomination Certificate, as defined below, and (z) the name(s) and
address(es) of the Nominating Holder(s) and the number of ADSs owned by each
A-53
Nominating Holder (together with certified evidence of each Nominating Holder's
ownership of the applicable ADSs as of the Nomination Submission Date, in the
case of (y)(ii) above, and the applicable ADS Record Date, in the case of (y)(i)
above), (ix) if the Nomination Submission Date is prior to the applicable ADS
Record Date, the Nominating Holder(s) must also provide, within five (5)
Business Days after the applicable ADS Record Date, a second written certificate
signed by each Nominating Holder addressed to the Depositary and the Company and
in a form satisfactory to the Depositary and the Company (the "Second Nomination
Certificate"), certifying, inter alia, that the Nominating Holder(s) continued
to own at least 51% of the ADSs outstanding as of the applicable ADS Record Date
(together with certified evidence of each Nominating Holder's ownership of the
applicable ADSs as of such applicable ADS Record Date), (x) the Nomination is
accompanied by a joint and several irrevocable undertaking of all Nominating
Holders (which undertaking may be contained in the First Nomination Certificate
or the Second Nomination Certificate) that each such Nominating Holder shall pay
all fees and expenses incurred in relation to the submission of the Nomination
at the meeting of the Company's shareholders, and (xi) the Shares registered in
the name of the Depositary or its nominee as representative of the Holders and
Beneficial Owners constitute one percent (1%) or more of the total issued and
outstanding Shares of the Company as of the Candidate Nomination Record Date.
Each Beneficial Owner hereby agrees and acknowledges that in no event shall the
Depositary or its nominee be nominated by the Nominating Holder(s) for election
as a director at a meeting of the Company's shareholders.
Upon the timely receipt by the Depositary of any Nomination which
the Depositary reasonably believes to be in full compliance with the immediately
preceding paragraph, the Depositary shall submit a copy of such Nomination and
of the other materials received from the Nominating Holder(s) to the Company
prior to the expiration of the Nomination Submission Period. Any Nomination so
A-54
submitted as to which the Depositary has not received within five (5) Business
Days after the applicable ADS Record Date any Second Nomination Certificate
required under the immediately preceding paragraph shall be deemed irrevocably
withdrawn at the expiration of such five (5) Business Day period. In the event
the Depositary receives more than one (1) Nomination by a Nominating Holder, or
a group of Nominating Holders, each of which appears to satisfy the requirements
set forth in the immediately preceding paragraph, the Depositary is hereby
authorized and instructed to disregard all Nominations received from such
Nominating Holder(s), except for the first Nomination received by the Depositary
from such Nominating Holder(s) and shall submit such Nomination to the Company
for consideration at a meeting of the Company's shareholders involving the
election of directors in accordance with the terms of the Deposit Agreement. The
Depositary shall not have any obligation to verify the accuracy of the
information contained in any document submitted to it by the Nominating
Holder(s). Neither the Depositary nor its nominee shall be obligated to attend
and speak at the meeting of the Company's shareholders involving the election of
directors on behalf of the Nominating Holder(s).
Notwithstanding anything contained in the Deposit Agreement or any
ADR, and except that the Depositary shall arrange, at the request of the Company
and at the Company's expense, for the mailing to Holders of copies of materials
that the Company has made available to the Depositary for such purpose, the
Depositary shall not be obligated to provide to the Holders or Beneficial Owners
of ADSs any notices relating to the nomination rights, including, without
limitation, notice of the Nomination Submission Period, or the receipt of any
Nomination(s) from Nominating Holders, or of the holdings of any ADSs by any
persons, except that the Depositary shall, upon a Holder's request, inform such
Holder of the total number of ADSs then issued and outstanding.
A-55
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 deposit Up to $5.00 per 100 ADSs (or Person for whom deposits are made
of Eligible Securities fraction thereof) issued. or person receiving ADSs.
(including issuances of EC ADSs
upon the deposit of Entitlement
Certificates, but excluding
issuances as a result of
distributions described in
paragraph (4) below).
----------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to $5.00 per 100 ADSs (or Person surrendering ADSs or making
Securities, property and cash fraction thereof) surrendered. withdrawal.
against surrender of ADSs.
----------------------------------------------------------------------------------------------------------------
(3) Distribution of cash dividends Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
or other cash distributions fraction thereof) held, unless
(i.e., sale of rights and other prohibited by the exchange upon
entitlements). which the ADSs are listed.
----------------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to $5.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or other fraction thereof) held, unless
free stock distributions, or prohibited by the exchange upon
(ii) exercise of rights. which the ADSs are listed.
----------------------------------------------------------------------------------------------------------------
(5) Transfer of ADRs. No fee. N/A
----------------------------------------------------------------------------------------------------------------
II. Charges
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:
B-1
(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.
B-2
