Exhibit (a)(i)
Exhibit
(a)(i)
AU
OPTRONICS CORP.
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
DEPOSIT
AGREEMENT, DATED AS OF MAY 29, 2002
Amendment
No. 1
to
Dated as
of February 15, 2006
TABLE
OF CONTENTS
Page
ARTICLE
I DEFINITIONS
|
3
|
|
SECTION
1.01.
|
Definitions
|
3
|
SECTION
1.02.
|
Effective
Date
|
3
|
ARTICLE
II AMENDMENTS TO DEPOSIT AGREEMENT
|
4
|
|
SECTION
2.01.
|
4
|
|
SECTION
2.02.
|
Principal
Office
|
4
|
SECTION
2.03.
|
Submission
of Proposals
|
4
|
SECTION
2.04.
|
Submission
of Nominations
|
8
|
ARTICLE
III AMENDMENTS TO THE RECEIPTS
|
12
|
|
SECTION
3.01.
|
Amendments
to Receipts.
|
12
|
SECTION
3.02.
|
Addition
to Receipts.
|
13
|
ARTICLE
IV REPRESENTATIONS AND WARRANTIES
|
20
|
|
SECTION
4.01.
|
Representations
and Warranties
|
20
|
ARTICLE
V MISCELLANEOUS
|
21
|
|
SECTION
5.01.
|
New
Receipts
|
21
|
SECTION
5.02.
|
Notice
of Amendment to Holders
|
21
|
SECTION 5.03.
|
Indemnification
|
22
|
(i)
AMENDMENT
NO. 1 TO DEPOSIT AGREEMENT, dated as of February 15, 2006 (the “Amendment”), by and
among AU Optronics Corp., a company organized and existing 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
Deposit Agreement, dated as of May 29, 2002.
WITNESSETH
THAT:
WHEREAS,
the Company and the Depositary entered into that certain Deposit Agreement,
dated as of May 29, 2002 (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
2
ARTICLE
I
3
ARTICLE
II
“SECTION
1.30 “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, X.X.X.”
4
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 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.
5
(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 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.
6
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.”
7
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.
8
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 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.
9
(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 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.
10
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..”
11
ARTICLE
III
(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 is 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,
X.X.X.”
(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 “000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.”
(c) 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 is 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 Deposit Agreement, dated as of May 29, 2002, as amended by
Amendment No. 1 to Deposit Agreement, dated as of February 15, 2006 (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.”
12
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 (25) and (26) at the end of
the Receipt:
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 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.
13
(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 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.
14
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 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).
15
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..
(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.
16
(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 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.
17
(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 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.
18
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).
19
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..”
ARTICLE
IV
(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
(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
20
(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 Post-Effective
Amendment No. 1 to the 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
V
21
22
AU
OPTRONICS CORP.
|
||||
|
By:
|
/s/ Xxxx-Xxx
(K.Y.)
Xxx
|
||
Name:
Title: |
Xxxx-Xxx
(KY) Xxx
Chief
Executive
Officer
|
|||
CITIBANK,
N.A., as Depositary
|
||||
By:
|
/s/ Xxxx
Xxxxxx
|
|||
Name:
Title: |
Xxxx
Xxxxxx
Vice
President
|
23
EXHIBIT
A
[FORM
OF RECEIPT]
Number
|
CUSIP
NUMBER: 002255 10 7
|
||
AUO
|
[American
Depositary Shares (each American Depositary Share representing ten (10) Fully
Paid shares of common stock, par NT$10.00 per share)]
[COP
American Depositary Shares (each COP American Depositary Share representing an
undivided interest in a global Certificates of Payment, each interest
representing the irrevocable right to receive ten (10) 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 ten (10) shares of common stock par NT$10.00 per
share)]
A-1
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
[DEPOSITED
SHARES OF COMMON STOCK]
[INTERESTS
IN THE DEPOSITED CERTIFICATE(S) OF PAYMENT]
[DEPOSITED
ENTITLEMENT CERTIFICATE(S)]
of
AU
Optronics Corp.
(Incorporated
under the laws of the Republic of China)
CITIBANK,
N.A., a national banking association organized and existing under the laws of
the United States of America, as depositary (the “Depositary”), hereby
certifies that _____________is the owner of ______________ American Depositary
Shares (hereinafter “ADS”), representing
deposited [shares of common
stock] [interests in the global Certificate(s) of Payment representing the
irrevocable right to receive shares of common stock] [Entitlement Certificate(s)
representing the irrevocable right to receive shares of common stock],
par value NT$10.00 per share, or evidence of rights to receive such [shares of common stock (the
“Shares”)] [interests in the global
Certificate(s) of Payment (the “Certificate(s)
of Payment”][Entitlement
Certificate(s) (the “Entitlement
Certificate(s)”)]
(such [Shares][Certificate(s)
of Payment][Entitlement Certificate(s)] are hereafter called “Eligible Securities”)
of AU Optronics Corp., a company incorporated under the laws of the Republic of
China (the “Company”). As
of the date of the Deposit Agreement (as hereinafter defined), each ADS
represents [ten (10) Shares][an
undivided interest in an Entitlement Certificate, each interest representing the
irrevocable right to receive [ten (10)] Shares][an undivided interest in a
global Certificate(s) of Payment, each interest representing the irrevocable
right to receive ten (10) Shares] deposited under the Deposit Agreement
with the Custodian, which at the date of execution of the Deposit Agreement is
Citibank, N.A., (Taipei) (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
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
Upon
receipt of any proceeds from any such sale, the Depositary shall, subject to any
restrictions imposed by ROC law and regulations, and as provided hereunder and
under the Deposit Agreement, convert or cause to be converted any such proceeds
into U.S. dollars and distribute any such proceeds to the Holders entitled
thereto after deduction or payment of any fees, reasonable expenses, taxes or
governmental charges 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.
Upon
satisfaction of each of the conditions specified above, the Depositary (i) shall
cancel the ADSs Delivered to it (and, if applicable, the Receipts evidencing the
ADSs so Delivered), (ii) shall direct the Registrar to record the
cancellation of the ADSs so Delivered on the books maintained for such purpose,
and (iii) shall direct the Custodian to Deliver (without unreasonable delay) at
the Custodian's designated office the Deposited Securities represented by the
ADSs so canceled together with any certificate or other document of title for
the Deposited Securities, or evidence of the electronic transfer thereof (if
available), as the case may be, to or upon the written order of the person(s)
designated in the order delivered to the Depositary for such purpose, subject however, in each
case, to the terms and conditions of the Deposit Agreement, of the
Receipts evidencing the ADSs so canceled, of the Articles of Incorporation of
the Company, of applicable laws and the rules and regulations of the Republic of
China and the rules of the TSE and the Taiwan Securities Central Depository, and
to the terms and conditions of or governing the Deposited
Securities, in each case as in effect at the time
thereof.
A-4
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 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.
A-5
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.
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 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 ADSs or Eligible
Securities 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 Paragraph (23) 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.
A-6
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).
A-7
If any
such representations or warranties are false in any way, the Company and
Depositary shall be authorized, at the cost and expense of the person
depositing, Shares, Certificates of Payment or Entitlement Certificates, to take
any and all actions necessary to correct the consequences thereof.
A-8
(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 fraction thereof) so issued
under the terms of the Deposit Agreement (excluding issuances pursuant to
paragraphs (iii)(b) and (v) below);
(ii) to
any person surrendering ADSs for cancellation and withdrawal of Deposited
Securities, a fee not in excess of U.S. $ 5.00 per 100 ADSs (or fraction
thereof) so surrendered;
(iii) No
fee shall be payable upon distribution of (a) cash dividends or (b) ADSs
pursuant to stock dividends (or other free distributions of stock) so long as
the charging of such fee is prohibited by the exchange upon which the ADSs are
listed. If charging of such fees is not prohibited, the fees
specified in (i) above shall be payable in respect of ADS distributions pursuant
to stock dividends (or other free distributions of stock) and the fees specified
in (iv) below shall be payable in respect of distributions of cash;
A-9
(iv) to
any Holder of ADSs, a fee not in excess of U.S. $ 2.00 per 100 ADSs (or fraction
thereof) held for the distribution of cash proceeds (i.e., upon the sale of rights
and other entitlements); and
(v) to
any Holder of ADSs, a fee not in the excess of U.S. $ 5.00 per 100 ADSs (or
fraction thereof) issued upon the exercise of rights to purchase additional
ADSs.
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:
(b) taxes
(including applicable interest and penalties) and other governmental
charges;
(c) 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;
(d) 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;
(e) the
expenses and charges incurred by the Depositary in the conversion of foreign
currency;
(f) 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
(g) 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 Paragraph (21) of this Receipt. The Depositary will
provide, without charge, a copy of its latest fee schedule to anyone upon
request. The charges and expenses of the Custodian are for the sole
account of the Depositary.
11. Title to
Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that the Receipt has been properly endorsed or
is accompanied by proper instruments of transfer. Notwithstanding any
notice to the contrary, the Depositary and the Company may deem and treat the
Holder of this Receipt (that is, the person in whose name this Receipt is
registered on the books of the Depositary) as the absolute owner thereof for all
purposes. Neither the Depositary nor the Company shall have any
obligation nor be subject to any liability under the Deposit Agreement or this
Receipt to any holder of this Receipt or any Beneficial Owner unless such holder
is the Holder of this Receipt registered on the books of the Depositary or, in
the case of a Beneficial Owner, such Beneficial Owner or the Beneficial Owner's
representative is the Holder registered on the books of the
Depositary.
A-10
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.
A-11
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 Paragraph (23)
hereof.
Dated:
|
CITIBANK,
N.A.,
|
|
as
Depositary
|
|
By:_________________________
|
|
Authorized
Signatory
|
CITIBANK,
N.A.
Transfer
Agent and Registrar
By:_______________________
|
Authorized
Signatory
|
The
address of the Principal Office of the Depositary is 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, X.X.X.
A-12
[FORM
OF REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Eligible Securities, the Company shall cause such Eligible
Securities 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 (of 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 net of (a) the applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and (b) taxes),
or (ii) if additional ADSs are not so distributed, each ADS issued and
outstanding after the ADS Record Date shall, to the extent permissible by law,
thenceforth also represent rights and interest in the additional integral number
of Shares distributed upon the Deposited Securities represented thereby (subject, however, in each case,
to the laws and regulations of the Republic of China and net of (a) the
applicable fees and charges of, and the reasonable expenses incurred by, the
Depositary and (b) taxes). In lieu of delivering fractional ADSs, the
Depositary shall sell the number of Eligible Securities or ADSs, as the case may
be, represented by the aggregate of such fractions and distribute the net
proceeds upon the terms set forth in the Deposit Agreement.
A-13
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 (b) fees and charges of, and reasonable expenses
incurred by, the Depositary) to Holders entitled thereto upon the terms of the
Deposit Agreement. The Depositary shall hold and/or distribute any
unsold balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon
timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
Deposit Agreement, the Company and the Depositary shall determine whether such
distribution is lawful and reasonably practicable. If so, the
Depositary shall, subject to the terms and conditions of the Deposit Agreement,
establish an ADS record date according to Paragraph (15) and establish
procedures to enable the Holder hereof to elect to receive the proposed
distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to
receive the distribution in additional ADSs, the distribution shall be
distributed as in the case of a distribution in Eligible
Securities. If such elective distribution is not lawful or not
reasonably practicable, the Depositary shall, to the extent permitted by law,
distribute to Holders, on the basis of the same determination as is made in the
Republic of China in respect of the Deposited Securities for which no election
is made, either (x) cash or (y) additional ADSs representing such
additional Eligible Securities, in each case, upon the terms described in the
Deposit Agreement. Nothing herein or in the Deposit Agreement shall
obligate the Depositary to make available to the Holder hereof a method to
receive the 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.
A-14
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 satisfactory documentation contemplated in
the Deposit Agreement, and (iii) the Depositary shall have determined that such
distribution of rights is reasonably practicable. In the event any of
the conditions set forth above are not satisfied or if the Company requests 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
satisfactory documentation required by the Deposit Agreement or determines it is
not lawful or not reasonably practicable to make the rights available to
Holders, or (iii) any rights made available are not exercised and appear to be
about to lapse, the Depositary shall determine 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 reasonable expenses incurred by, the Depositary and taxes) upon the
terms hereof and of the Deposit Agreement. If the Depositary is
unable to make any rights available to Holders or to arrange for the sale of the
rights upon the terms described above, the Depositary shall allow such rights to
lapse. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the 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 other applicable
securities 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.
A-15
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 Deposited Securities or be able 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 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 respective number of ADSs held
by them 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.
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 practicable and shall (i) cause the proceeds of
such sale, if any, to be converted into Dollars and (ii) distribute the proceeds
of such conversion received by the Depositary (net of applicable (a) fees and
charges of, and expenses incurred by, the Depositary and (b) taxes) to the
Holders as of the ADS Record Date 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. 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, solicitation of any consent or any
other matter, the Depositary shall fix a record date (the “ADS Record Date”) for
the determination of the Holders of Receipts who shall be entitled to receive
such distribution, to give instructions for the exercise of voting rights at any
such meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Deposited Securities represented by each
ADS. The Depositary shall make reasonable efforts to establish the
ADS Record Date as closely as possible to the applicable record date for the
Deposited Securities (if any) set by the Company in the Republic of
China. Subject to applicable law and the 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.
A-16
A-17
The
Company agrees to use its best efforts to timely notify the Depositary of any
proposed shareholders' meeting and to timely provide to the Depositary in New
York, at least twenty-four (24) calendar days before any ordinary shareholders'
meeting or at least fourteen (14) calendar days before any extraordinary
shareholders' meeting, a sufficient number of copies reasonably 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 Shares in the ROC,
including, without limitation, a list of candidates proposed by the Company for
an election of directors or supervisors) (such materials collectively, the
“Shareholder Notice”). As soon as practicable after receipt by the
Depositary of the requisite number of Shareholder Notices, the Depositary shall
establish the ADS Record Date (upon the terms of Paragraph (15) hereof and
Section 4.9 of the Deposit Agreement) and shall, at the Company's expense and
provided that no U.S. legal prohibitions exist, deliver to Holders as of the
applicable ADS Record Date, (i) the Shareholder Notice, (ii) a
depositary notice setting forth the manner in which Holders of ADSs may instruct
the Depositary to cause the Deposited Securities represented by their ADSs to be
voted under the terms of the Deposit Agreement, including a description of the
Management Instruction (as defined below), together with a form of voting
instructions and/or other means to provide voting instructions (the depositary
notice and the related materials prepared by the Depositary collectively, the
“Depositary Notice”). The Depositary is under no obligation to mail
the Shareholder Notice and the Depositary Notice to Holders if the Company has
failed to provide to the Depositary in New York the requisite number of
Shareholder Notices at least twenty-four (24) calendar days prior to the date of
any ordinary shareholders' meeting or at least fourteen (14) calendar days
before the date of any extraordinary shareholders' meeting. If the
Depositary has not delivered the Shareholder Notice or Depositary Notice to
Holders, it will endeavor to cause all Deposited Securities represented by ADRs
to be present at the relevant shareholders' meeting insofar as practicable and
permitted under applicable law but will not cause the Shares or other Deposited
Securities to be voted; provided, however, that the
Depositary may determine, in its sole discretion, to send such Shareholder
Notice and Depositary Notice to Holders and/or cause the Shares or other
Deposited Securities to be voted as it deems appropriate. There can
be no assurance that Holders generally or any Holder in particular will receive
Shareholder Notices and Depositary Notices with sufficient time to enable the
return of voting instructions to the Depositary in a timely manner.
Notwithstanding
anything else contained in 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 or instructions, of holders of Shares or other Deposited
Securities if the taking of such action would violate U.S. laws.
A-18
The
Depositary's Authorization, provided in the manner and under the 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 of
the Company addressed to, and in
form and substance satisfactory to, the Depositary to the effect that under ROC
law (i) the arrangements relating to the Depositary Authorization are
permissible, and (ii) the Depositary will not be deemed to be authorized to
exercise any discretion when causing the voting in accordance with Section 4.10
of the Deposit Agreement and will not (in the absence of negligence, bad faith
or breach of contract, and subject to general principles of agency) be subject
to any liability under ROC law for losses arising from the exercise of the
voting arrangements set out in Section 4.10 of the Deposit Agreement on the
grounds that voting in accordance with Section 4.10 of the Deposit Agreement is
in violation of ROC law. 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
and 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 the 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-19
A-20
A-21
20. 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 be required by the Company to
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 immediate predecessor other than as contemplated in the
Deposit Agreement. The immediate predecessor depositary, upon payment
of all sums due to 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 rights,
titles and interests 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 provide
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.
X-00
A-23
A-24
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 COP ADSs, Temporary EC ADSs, Certificate of
Payment and Entitlement Certificates shall not be eligible for Pre-Release
Transactions hereunder.
In
addition, to the extent permitted under applicable law, in its capacity as
Depositary, the Depositary may, when a Holder of ADSs 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 as 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 and may, with the prior
written consent of the Company, change such limit for purposes of general
application.
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 disregard such limit from time to time as it
deems appropriate.
A-25
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 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-26
(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 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.
A-27
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 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..
(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-28
(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 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.
A-29
(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 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.
A-30
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).
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-31
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated:
|
Name:________________________________
|
|
By:
|
|
Title:
|
NOTICE:
The signature of the Holder to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
If the
endorsement be executed by an attorney, executor, administrator, trustee or
guardian, the person executing the endorsement must give his/her full title in
such capacity and proper evidence of authority to act in such capacity, if not
on file with the Depositary, must be forwarded with this Receipt.
All
endorsements or assignments of Receipts must be guaranteed by a member of a
Medallion Signature Program approved by the Securities Transfer Association,
Inc.
SIGNATURE
GUARANTEED
A-32
[The Receipts issued in respect of
Partial Entitlement American Depositary Shares shall bear the following legend
on the face of the Receipt: “This Receipt evidences American
Depositary Shares representing partial entitlement' [common shares][interests in
the global Certificates of Payment][Entitlement Certificates] of AU Optronics
Corp., and as such do not entitle the holders thereof to the same per-security
entitlement as other [common shares][interests in the global Certificates of
Payment][Entitlement Certificates] (which are 'full entitlement' [common
shares][interests in the global Certificates of Payment][Entitlement
Certificates]) issued and outstanding at such time. The American
Depositary Shares represented by this Receipt shall entitle holders to
distributions and entitlements identical to other American Depositary Shares
when the [common shares][interests in the global Certificates of
Payment][Entitlement Certificates] represented by such American Depositary
Shares become 'full entitlement' [common shares][interests in the global
Certificates of Payment][Entitlement Certificates]”.]
A-33