Exhibit (b)(ii) CITIBANK, N.A. New York, New York 10013
Exhibit
(b)(ii)
CITIBANK,
N.A.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
October
22, 2007
AU
OPTRONICS CORP.
0 Xx-Xxxx
Xx. 0,
Xxxxxxx-Xxxxx
Xxxxxxxxxx Xxxx
Xxxx-Xxx
000
Xxxxxx,
Xxxxxxxx of China,
Attention: Max
Xxxxxxx Xxxxx, Chief Financial Officer,
Finance
Division
AU OPTRONICS CORP. – Direct
Registration System for ADSs
Ladies
and Gentlemen:
Reference
is made to the Deposit Agreement, dated as of May 29, 2002, as amended by
Amendment No. 1 dated as of February 15, 2006, as supplemented by letter
agreements, dated as of September 16, 2002 and as of October 1, 2006 (the “Deposit Agreement”),
by and among AU OPTRONICS CORP. (the “Company”), Citibank,
N.A., as Depositary (the “Depositary”), and all
Holders and Beneficial Owners from time to time of American Depositary Receipts
(“ADRs”)
evidencing American Depositary Shares (“ADSs”) issued
thereunder, each ADS representing ten (10) shares of common stock, par value
NT$10.00 per share (the “Shares”) of the
Company. Capitalized terms used herein without definition shall have
the meaning assigned thereto in the Deposit Agreement.
The
purpose of this letter agreement is to supplement the Deposit Agreement to
enable the establishment by the Depositary of a “direct registration system”
(the “DR
System”) for ADSs and the issuance by the Depositary of “uncertificated
ADSs” as part of the DR System. Therefore, the Company and the
Depositary agree as follows:
1. Notwithstanding
any provision of the Deposit Agreement, the Depositary may, at any time and from
time to time, issue ADSs that are not evidenced by ADRs (such ADSs, the “Uncertificated ADSs”,
and the ADSs evidenced by ADRs, the “Certificated
ADSs”).
2. Uncertificated
ADSs shall not be represented by any instrument(s) but shall be evidenced only
by the registration of “uncertificated securities” on the books and records of
the Depositary maintained for such purpose. Any reference to Holders
of ADR(s) or ADS(s) in the Deposit Agreement shall, in the context of the
Uncertificated ADSs, refer to the person(s) in whose name the Uncertificated
ADSs are registered on the books of the Depositary maintained for such
purpose.
3. Holders
of Uncertificated ADSs that are not subject to any registered pledges, liens,
restrictions or adverse claims, of which the Depositary has written notice at
such time, shall at all times have the right to exchange the Uncertificated ADSs
(or any portion thereof) for Certificated ADSs of the same type and class,
subject in each case to applicable laws and any rules the Depositary may
establish from time to time in respect of the Uncertificated ADSs.
4. Holders
of Certificated ADSs shall, so long as the Depositary maintains the DR System
for the ADSs, have the right to exchange the Certificated ADSs (or any portion
thereof) for Uncertificated ADSs upon (i) the due surrender of the
Certificated ADSs to the Depositary for such purpose, and (ii) the
presentation of a written request to such effect to the Depositary, subject in
each case to (a) all liens and restrictions noted on the ADR evidencing the
Certificated ADS(s) and all adverse claims of which the Depositary then has
written notice, (b) the terms of the Deposit Agreement (as supplemented by
this letter agreement) and the rules that the Depositary may establish from time
to time for such purposes thereunder, and (c) applicable law.
5. Uncertificated
ADSs shall in all material respects be identical to Certificated ADSs of the
same type and class, except that (i) no ADR(s) shall be, nor shall need to
be, issued to evidence Uncertificated ADSs, (ii) Uncertificated ADSs shall,
subject to the terms of the Deposit Agreement (as supplemented by this letter
agreement), be transferable upon the same terms and conditions as uncertificated
securities under New York law, (iii) each Holder’s ownership of
Uncertificated ADSs shall be recorded on the books and records of the Depositary
maintained for such purpose and evidence of such Holder’s ownership shall be
reflected in periodic statements provided by the Depositary to each such Holder
in accordance with applicable law, (iv) the Depositary may from time to
time, upon notice to the Holders of Uncertificated ADSs affected thereby,
establish rules and amend or supplement existing rules, as may be deemed
reasonably necessary to maintain the DR System and for the issuance of
Uncertificated ADSs on behalf of Holders, provided that such rules do not
conflict with the terms of the Deposit Agreement (as supplemented by this letter
agreement) and applicable law, (v) the Holder of Uncertificated ADSs shall
not be entitled to any benefits under the Deposit Agreement (as supplemented by
this letter agreement) and such Holder’s Uncertificated ADSs shall not be valid
or enforceable for any purpose against the Depositary or the Company unless such
Holder is registered on the books and records of the Depositary maintained for
such purpose, (vi) the Depositary may, in connection with any deposit of
Shares resulting in the issuance of Uncertificated ADSs and with any transfer,
pledge, release and cancellation of Uncertificated ADSs, require the prior
receipt of such documentation as the Depositary may reasonably request, and
(vii) upon termination of the Deposit Agreement (as supplemented by this
letter agreement), the Depositary shall not require Holders of Uncertificated
ADSs to affirmatively instruct the Depositary or to take other action before
remitting proceeds from the sale of the Deposited Securities represented by such
Holders' Uncertificated ADSs under the terms of Section 6.2 of the Deposit
Agreement.
6. When
issuing ADSs under the terms of the Deposit Agreement, including, without
limitation, issuances pursuant to Sections 4.2, 4.3 and 4.4 thereof, the
Depositary may in its discretion determine to issue Uncertificated ADSs rather
than Certificated ADSs, unless otherwise specifically instructed in writing by
the applicable Holder to issue Certificated ADSs.
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7. Holders
of Uncertificated ADSs may request the sale of ADSs through the Depositary,
subject to the terms and conditions generally applicable to the sale of ADSs
through the Depositary from time to time (which may be changed by the
Depositary).
8. All
provisions and conditions of the Deposit Agreement shall apply to Uncertificated
ADSs to the same extent as to Certificated ADSs, except as contemplated
herein. The Depositary is authorized and directed to take any and all
actions, and establish any and all procedures, deemed reasonably necessary to
give effect to the terms hereof. Any references in the Deposit
Agreement or any ADR(s) to the terms “American Depositary Share(s)” or “ADS(s)”
shall, unless the context otherwise requires, include Certificated ADS(s) and
Uncertificated ADS(s), individually or collectively, as the context may
require.
9. Except
as set forth herein and except as required by applicable law, the Uncertificated
ADSs shall be treated as ADSs issued and outstanding under the terms of the
Deposit Agreement (as supplemented by this letter agreement). In the
event that, in determining the rights and obligations of parties to the Deposit
Agreement (as supplemented by this letter agreement) with respect to any
Uncertificated ADSs, any conflict arises between (a) the terms of the
Deposit Agreement and (b) the terms hereof, the terms and conditions set
forth herein shall be controlling and shall govern the rights and obligations of
the parties to the Deposit Agreement pertaining to the Uncertificated
ADSs.
10. This
letter agreement shall be interpreted under, and all the rights and obligations
hereunder shall be governed by, the laws of the State of New York without regard
to the principles of choice of law thereof.
11. The
terms of this letter agreement supplement the Deposit Agreement, and are not
intended to materially prejudice any substantial existing rights of Holders or
Beneficial Owners of ADSs and, as a result, notice may, but is not required, to
be given of the terms hereof to Holders of ADSs under the Deposit
Agreement.
12. The
Company and the Depositary shall make reference to the terms of this letter
agreement, or attach an executed copy hereof to, the next Registration Statement
on Form F-6 filing made with the Securities and Exchange Commission in respect
of the ADSs.
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CITIBANK,
N.A.,
as
Depositary
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By:
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/s/ Emi
Mak
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| Name: |
Emi
Mak
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| Title: |
Vice
President
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Date:
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Oct. 25, 2007 | |||
Acknowledged
and Agreed:
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AU
OPTRONICS CORP.
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By:
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/s/ Xxxx-Xxx
(K.Y.) Xxx
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| Name: |
Xxxx-Xxx
(K.Y.) Xxx
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| Title: |
Chairman
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Date:
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