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EXHIBIT 4.1
Citibank, N.A. - Draft August 16, 2000
For Discussion Purposes Only
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AMENDED AND RESTATED DEPOSIT AGREEMENT
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by and among
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
AND
CITIBANK, N.A.,
as Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED HEREUNDER
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Dated as of [DATE], 2000
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AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of ___________, 2000
(this Amended and Restated Deposit Agreement and all Exhibits hereto, as amended
and supplemented from time to time in accordance with its terms, the "Deposit
Agreement"), by and among (i) ADVANCED SEMICONDUCTOR ENGINEERING, INC., a
company incorporated under the laws of the Republic of China, and its successors
(the "Company"), (ii) CITIBANK, N.A., a national banking association organized
under the laws of the United States of America acting in its capacity as
depositary, and any successor depositary hereunder (the "Depositary"), and (iii)
all Holders and Beneficial Owners of American Depositary Shares evidenced by
American Depositary Receipts issued hereunder (all such capitalized terms as
hereinafter defined).
W I T N E S S E T H T H A T:
WHEREAS, the Company has duly authorized and has outstanding common
shares, having a par value of NT$10.00 per share (the "Shares"), which are
listed for trading on the Taiwan Stock Exchange; and
WHEREAS, the Company and the Depositary previously entered into a
Deposit Agreement, dated as of July 13, 1995 and amended by Amendment No. 1 to
Deposit Agreement, dated as of November 30, 1998 (such Deposit Agreement as so
amended, the "Original Deposit Agreement"), to provide for the deposit of the
Shares and the creation of (i) International Global Depositary Shares (the
"International GDSs") representing the Shares so deposited (the depositary
receipts facility for the International GDSs, the "Reg S GDR Facility") and (ii)
Rule 144A Global Depositary Shares (the "Rule 144A GDSs") representing the
Shares so deposited (the depositary receipts facility for the Rule 144A GDSs,
the "Rule 144A GDR Facility"); and
WHEREAS, pursuant to an Exchange Offer Prospectus, dated __________,
2000 (the "Exchange Offer Prospectus"), as filed with the U.S. Securities and
Exchange Commission under cover of a Registration Statement on Form F-4 (Reg.
No. 333-___) on ______, 2000 and declared effective on _______, 2000, the
Company has made an offer to holders of its Rule 144A GDSs to exchange such Rule
144A GDSs upon the terms set forth in such Exchange Offer Prospectus for ADSs
(as hereinafter defined) (the "Exchange Offer"); and
WHEREAS, the Company desires (i) to amend and restate the Original
Deposit Agreement to convert the International GDSs into American Depositary
Shares (the "ADSs") listed for trading on The New York Stock Exchange, Inc. (the
"NYSE") (the depositary receipts facility for such NYSE-listed ADSs, the
"NYSE-listed ADR Facility" or the "ADR Facility") and (ii) to terminate the Rule
144A GDR Facility created under the terms of the Original Deposit Agreement
following the completion of the Exchange Offer in accordance with the terms of
the Original Deposit Agreement; and
WHEREAS, the Company wishes to provide for the deposit of a single
global Certificate of Payment (as hereinafter defined) and the creation of
"Temporary American Depositary Shares" representing interests in the Certificate
of Payment so deposited upon the terms set forth herein
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(the "Temporary ADSs") listed for trading on the NYSE (the depositary receipts
facility for such Temporary ADSs, the "Temporary ADR Facility," and together
with the NYSE-listed ADR Facility, the "ADR Facilities"); and
WHEREAS, the Depositary is willing to act as the Depositary for the ADR
Facilities upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing each series of the
American Depositary Shares issued pursuant to the terms of this Deposit
Agreement are to be substantially in the form of Exhibit A attached hereto, with
appropriate insertions, modifications and omissions, as hereinafter provided in
this Deposit Agreement; and
WHEREAS, the Board of Directors of the Company (or an authorized
committee thereof) has duly approved the establishment of the ADR Facilities.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall
have the meanings set forth below, unless otherwise clearly indicated:
Section 1.1 "Affiliate" shall have the meaning assigned to such term by
the Commission (as hereinafter defined) under Regulation C promulgated under the
Securities Act (as hereinafter defined), or under any successor regulation
thereto.
Section 1.2 "American Depositary Share(s)" and "ADS(s)" shall mean the
rights and interests in the Deposited Securities (as hereinafter defined)
granted to the Holders and Beneficial Owners pursuant to the terms and
conditions of this Deposit Agreement and the American Depositary Receipts issued
hereunder to evidence such ADSs. The International GDSs issued and outstanding
as of the date hereof shall, from and after the date hereof, be deemed for all
purposes to be Share ADSs (as hereinafter defined) issued and outstanding under
the terms of this Deposit Agreement, unless otherwise specifically noted. Each
American Depositary Share shall represent (i) in the case of Share ADSs, [FIVE
(5)] Share(s) and (ii) in the case of Temporary ADSs, interests in the
Certificate of Payment, each interest representing the irrevocable right to
receive [FIVE (5)] Shares from the Company, in each case until there shall occur
a distribution upon Deposited Securities referred to in Section 4.2 or a change
in Deposited Securities referred to in Section 4.11 with respect to which
additional American Depositary Shares are not issued, and thereafter each
American Depositary Share shall represent the Deposited Securities determined in
accordance with the terms of such Sections. Unless
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otherwise specifically set forth in this Deposit Agreement or the applicable
ADR, the terms "American Depositary Shares" and "ADSs" shall include Temporary
ADSs.
Section 1.3 "ADS Record Date" shall have the meaning given to such term
in Section 4.9.
Section 1.4 "Applicant" shall have the meaning given to such term in
Section 5.10.
Section 1.5 "Beneficial Owner" shall mean as to any ADS, any person or
entity having a beneficial interest deriving from the ownership of such ADS. A
Beneficial Owner of ADSs may or may not be the Holder of the ADR(s) evidencing
such ADSs. A Beneficial Owner shall be able to exercise any right or receive any
benefit hereunder solely through the person who is the Holder of the ADR(s)
evidencing the ADS(s) owned by such Beneficial Owner. Beneficial Owners of
International GDSs issued and outstanding as of the date hereof shall, from and
after the date hereof, be deemed for all purposes to be Beneficial Owners of
Share ADSs under the terms hereof, unless otherwise specifically noted.
Section 1.6 "Business Day" shall mean any day on which both the banks
in the Republic of China and the banks in New York are open for business.
Section 1.7 "Certificate(s) of Payment" shall mean the single global
Certificate of Payment issued by the Company evidencing the irrevocable right to
receive definitive share certificates representing the Shares delivered by the
Company in connection with the Offering or any Certificate of Payment issued by
the Company in connection with any subsequent offerings or distributions of
Shares by the Company.
Section 1.8 "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency thereto in
the United States.
Section 1.9 "Company" shall mean Advanced Semiconductor Engineering,
Inc., a company incorporated and existing under the laws of the Republic of
China, having its principal executive offices at 00 Xxxx Xxxxx Xxxx, Xxxxxx
Export Processing Xxxx, Xxxxxx, Xxxxxxxxx, Xxxxxx, Xxxxxxxx of China.
Section 1.10 "Custodian" shall mean, as of the date hereof, Citibank,
N.A., Taipei Branch, having its principal office at Citicorp Center, 52, Min
Sheng East Road, Section 4, Taipei, the Republic of China, as the custodian for
the purposes of this Deposit Agreement, and any other entity that may be
appointed by the Depositary pursuant to the terms of Section 5.5 as successor,
substitute or additional custodian hereunder. The term "Custodian" shall mean
any custodian individually or all custodians collectively, as the context
requires.
Section 1.11 "Deliver" and "Delivery" shall mean, when used in respect
of ADSs, Deposited Securities and Eligible Securities (as such terms are
hereinafter defined) and to the
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extent permissible under the laws of the Republic of China, either (i) the
physical delivery of the certificate(s) representing such securities (including,
without limitation, Receipts, as such term is hereinafter defined), or (ii) the
electronic delivery of such securities by means of book-entry transfer, if
available.
Section 1.12 "Deposit Agreement" shall mean this Amended and Restated
Deposit Agreement and all exhibits hereto, as the same may from time to time be
amended and supplemented from time to time in accordance with the terms hereof.
Section 1.13 "Depositary" shall mean Citibank, N.A., a national banking
association organized under the laws of the United States, in its capacity as
depositary under the terms of this Deposit Agreement, and any successor as
depositary pursuant to the terms of Section 5.4 hereof.
Section 1.14 "Deposited Securities" shall mean, collectively or
individually, as the context may require and unless otherwise specifically set
forth herein, (a) with respect to Share ADSs (as such term is hereinafter
defined), Shares and (b) with respect to Temporary ADSs (as such term is
hereinafter defined), interests in the single global Certificate of Payment, in
each case at any time deposited under this Deposit Agreement and any and all
other securities, property and cash held by the Depositary or the Custodian in
respect thereof, subject, in the case of cash, to the provisions of Section 4.8.
Notwithstanding anything else contained herein, the securities, property and
cash delivered to the Custodian in respect of Shares held in connection with the
International GDSs then outstanding, and any other deposited securities held as
of the date hereof under the Original Deposit Agreement in respect of the
International GDSs and defined as "Deposited Property" or "Deposited Shares"
thereunder in respect of the International GDRs, shall, for all purposes, from
and after the date hereof, be considered to be and treated as, Deposited
Securities hereunder in all respects. The collateral delivered in connection
with Pre-Release Transactions and/or Pre-Cancellation Sale Transactions in each
case as described in Section 5.10 hereof, shall not constitute Deposited
Securities.
Section 1.15 "Dollars" and "$" shall refer to the lawful currency of
the United States.
Section 1.16 "DTC" shall mean The Depository Trust Company, a national
clearinghouse and the central book-entry settlement system for securities traded
in the United States and, as such, the custodian for the securities of DTC
Participants (as hereinafter defined) maintained in DTC, and any successor
thereto.
Section 1.17 "DTC Participant" shall mean any financial institution (or
any nominee of such institution) having one or more participant accounts with
DTC for receiving, holding and delivering the securities and cash held in DTC.
Section 1.18 "Eligible Securities" shall mean, collectively or
individually as the context may require and unless otherwise specifically set
forth herein, (a) with respect to Share ADSs (as such term is hereinafter
defined), Shares, and (b) with respect to Temporary ADSs (as such term
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is hereinafter defined), interests in the Certificate of Payment, in each case
to the extent eligible for deposit hereunder at any time and from time to time
from and after the date hereof.
Section 1.19 "Eligible Securities Registrar" shall mean President
Securities Corp. or any other institution organized under the laws of the
Republic of China appointed by the Company to carry out the duties of registrar
for (a) the Shares and/or (b) any Certificates of Payment, and any successor
thereto.
Section 1.20 "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as from time to time amended.
Section 1.21 "Foreign Currency" shall mean any currency other than
Dollars.
Section 1.22 "Full Entitlement ADS(s)"; "Full Entitlement ADR(s)" and
"Full Entitlement Deposited Securities" shall have the meaning given to such
terms in Section 2.11 hereof.
Section 1.23 "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary (or the Registrar, if any) maintained
for such purpose. Holders of International GDSs shall, from and after the date
hereof, by the terms of this Deposit Agreement automatically become Holders of
ADRs issued hereunder. A Holder may or may not be a Beneficial Owner. If a
Holder is not the Beneficial Owner of the ADSs evidenced by the Receipt
registered in its name, such person shall be deemed to have all requisite
authority to act on behalf of the Beneficial Owners of the ADSs evidenced by
such Receipt.
Section 1.24 "Initial Deposit" shall mean the initial deposit of Shares
or the single global Certificate of Payment, as the case may be, in connection
with the Company's Offering (as hereinafter defined).
Section 1.25 "International GDSs" shall mean the International Global
Depositary Shares issued under the Original Deposit Agreement and outstanding as
of the date hereof, as described in the second introductory paragraph to this
Deposit Agreement.
Section 1.26 "NT dollars" and "NT$" shall refer to New Taiwan Dollars,
the lawful currency of the Republic of China.
Section 1.27 "Offering" shall mean the offering of ADSs in the United
States as contemplated by the Underwriting Agreement, dated as of _________,
2000, by and among Xxxxxxx Xxxxx & Co. and Xxxxxx Xxxxxxx Xxxx Xxxxxx, as
representatives of the several underwriters (as set forth therein) and the
Company and the Company's Prospectus, dated ______________, 2000 (as hereinafter
defined).
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Section 1.28 "Original Deposit Agreement" shall mean Deposit Agreement,
dated as of July 13, 1995, as amended by Amendment No. 1 to Deposit Agreement,
dated as of November 30, 1998, as further described in the second introductory
paragraph to this Deposit Agreement.
Section 1.29 "Partial Entitlement ADS(s)"; "Partial Entitlement
ADR(s)," and "Partial Entitlement Deposited Securities" shall have the meaning
given to such terms in Section 2.11 hereof.
Section 1.30 "Pre-Release Transaction" shall have the meaning set forth
in Section 5.10(a).
Section 1.31 "Principal Office" shall mean, when used with respect to
the Depositary, the principal office of the Depositary at which at any
particular time its depositary receipts business shall be administered, which,
at the date of this Deposit Agreement, is located at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
Section 1.32 "Prospectus" shall mean the Company's Prospectus, dated
_______, 2000, filed under cover of the Company's Registration Statement on Form
F-1 (Reg. No. 333-___), as filed with the Commission on ___________, 2000.
Section 1.33 "Receipt(s)"; "American Depositary Receipt(s)" and
"ADR(s)" shall mean any series of the certificate(s) issued by the Depositary to
evidence the American Depositary Shares issued under the terms of this Deposit
Agreement, as such Receipts may be amended from time to time in accordance with
the provisions of this Deposit Agreement. A Receipt may evidence any number of
American Depositary Shares and may, in the case of American Depositary Shares
held through a central depository such as DTC, be in the form of a "Balance
Certificate." Unless otherwise specifically set forth herein, the term
"Receipts" shall include the Temporary ADRs evidencing the Temporary ADSs issued
hereunder. Notwithstanding anything else contained herein or therein, the
depositary receipts issued and outstanding under the Original Deposit Agreement
to evidence International GDSs shall, from and after the date hereof, be treated
as Receipts issued hereunder and shall, from and after the date hereof, be
subject to the terms hereof in all respects.
Section 1.34 "Registrar" shall mean the Depositary or, upon the request
or with the approval of the Company, any bank or trust company having an office
in the Borough of Manhattan, The City of New York, which shall be appointed by
the Depositary to register issuances, transfers and cancellations of Receipts as
herein provided, and shall include any co-registrar appointed by the Depositary
for such purposes. Registrars (other than the Depositary) may be removed and
substitutes appointed by the Depositary. Each Registrar (other than the
Depositary) appointed pursuant to this Deposit Agreement shall be required to
give notice in writing to the Depositary accepting such appointment and agreeing
to be bound by the applicable terms of this Deposit Agreement.
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Section 1.35 "Republic of China"; "ROC" and "Taiwan" shall mean the
Republic of China.
Section 1.36 "Restricted ADRs" and "Restricted ADSs" shall mean any
ADRs and ADSs issued pursuant to Section 2.13 and 5.11. Any such Restricted ADRs
shall be held by the Holder thereof in certificated form and legended in
accordance with applicable U.S. laws and shall be subject to the appropriate
restrictions on sale, deposit, cancellation and transfer under such laws.
Section 1.37 "Restricted Securities" shall mean collectively or
individually, as the context may require, Eligible Securities, Deposited
Securities or ADSs, which (i) have been acquired directly or indirectly from the
Company or any of its Affiliates in a transaction or chain of transactions not
involving any public offering and are subject to resale limitations under the
Securities Act (as hereinafter defined) or the rules promulgated thereunder, or
(ii) are held directly or indirectly by an officer or director (or persons
performing similar functions) or other Affiliate of the Company, or (iii) are
subject to other restrictions on sale or deposit under (a) the laws of the
United States, (b) the laws of the Republic of China, (c) a shareholders
agreement, (d) the Articles of Incorporation of the Company, or (e) the
regulations of an applicable securities exchange unless, in each case, (x) such
Eligible Securities, Deposited Securities or ADSs are being sold to persons
other than an Affiliate of the Company in a transaction (i) covered by an
effective resale registration statement, or (ii) exempt from the registration
requirements of the Securities Act (as hereinafter defined), and (y) the
Eligible Securities, Deposited Securities or ADSs are not, when held by such
person(s), Restricted Securities.
Section 1.38 "Securities Act" shall mean the United States Securities
Act of 1933, as from time to time amended.
Section 1.39 "SFC" shall mean the Republic of China Securities and
Futures Commission, as further described in Section 2.3 hereof.
Section 1.40 "Shares" shall mean the Company's common shares, each
having a par value of NT$10.00 per share, validly issued and outstanding and
fully paid and may, if the Depositary so agrees after consultation with the
Company, include evidence of the right to receive Shares (other than interests
in any Certificate of Payment); provided that in no event shall Shares include
evidence of the right to receive Shares with respect to which the full purchase
price has not been paid or Shares as to which preemptive rights have theretofore
not been validly waived or exercised; provided further, however, that, if there
shall occur any change in par value, split-up, consolidation, reclassification,
conversion or any other event described in Section 4.11 in respect of the Shares
of the Company, the term "Shares" shall thereafter, to the maximum extent
permitted by law, represent the successor securities resulting from such change
in par value, split-up, consolidation, exchange, conversion, reclassification or
event.
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Section 1.41 "Share American Depositary Share(s)" and "Share ADS(s)"
shall mean the rights and interests in deposited Shares granted to Holders and
Beneficial Owners pursuant to the terms and conditions of this Deposit Agreement
and the Share ADRs issued hereunder to evidence such Share ADSs. The
International GDSs issued under the Original Deposit Agreement and outstanding
as of the date hereof shall, from and after the date hereof, be deemed for all
purposes to be Share ADSs issued hereunder. Share ADSs shall, unless otherwise
specifically set forth herein, be deemed to be American Depositary Shares or
ADSs, as the context may require, for all purposes under this Deposit Agreement.
Section 1.42 "Share American Depositary Receipt(s)" and "Share ADR(s)"
shall mean the Receipts issued by the Depositary to evidence Share ADSs issued
under the terms of this Deposit Agreement, as such Share ADRs may be amended
from time to time in accordance with the provisions hereof. A Share ADR may
evidence any number of Share ADSs and may, in the case of Share ADSs held
through a central depository such as DTC, be in the form of a "Balance
Certificate". Unless otherwise specifically set forth herein, the term "Share
ADRs" shall, from and after the date hereof, include the International GDRs
issued under the Original Deposit Agreement. Share ADRs shall, unless otherwise
specifically set forth herein or in the applicable ADR(s), be deemed to be
Receipts for all purposes under this Deposit Agreement.
Section 1.43 "Taiwan Securities Central Depository" shall mean the
central depository for Shares in the Republic of China, and any successor
thereto.
Section 1.44 "Taiwan Stock Exchange" and "TSE" shall mean the stock
exchange in the Republic of China, upon which the Company's Shares are listed
for trading and any successor stock exchange thereto.
Section 1.45 "Temporary ADS(s)" shall mean the rights and interests in
any deposited Certificate of Payment granted to Holders and Beneficial Owners
pursuant to the terms and conditions of this Deposit Agreement (including,
without limitation, Section 2.12 hereof) and the applicable Temporary ADR(s)
issued hereunder to evidence such Temporary ADSs. Temporary ADSs shall, unless
otherwise specifically set forth herein or in the applicable Temporary ADR(s),
be deemed to be American Depositary Shares or ADSs, as the context may require,
for all purposes under this Deposit Agreement.
Section 1.46 "Temporary ADR(s)" shall mean the Receipts issued by the
Depositary to evidence Temporary ADSs issued under the terms of this Deposit
Agreement (including, without limitation, Section 2.12 hereof), as such
Temporary ADRs may be amended from time to time in accordance with the terms
hereof. A Temporary ADR may evidence any number of Temporary ADSs and may, in
the case of Temporary ADSs held through a central depository such as DTC, be in
the form of a "Balance Certificate". Temporary ADRs shall, unless otherwise
specifically set forth herein or in the applicable Temporary ADR(s), be deemed
to be Receipts for all purposes under this Deposit Agreement.
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Section 1.47 "United States" shall have the meaning assigned to it in
Regulation S as promulgated by the Commission under the Securities Act.
ARTICLE II
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF ELIGIBLE SECURITIES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
Section 2.1 Appointment of Depositary. The Company hereby appoints the
Depositary as depositary for the Deposited Securities and hereby authorizes and
directs the Depositary to act in accordance with the terms set forth in this
Deposit Agreement. Each Holder and each Beneficial Owner, upon acceptance of any
ADSs (or any interest therein) issued in accordance with the terms of this
Deposit Agreement and each holder and each beneficial owner of International
GDSs who continues to hold such securities from and after the date hereof, shall
be deemed for all purposes to (a) be a party to and bound by the terms of this
Deposit Agreement and (b) appoint the Depositary its attorney-in-fact, with full
power to delegate, to act on its behalf and to take any and all actions
contemplated in this Deposit Agreement (including, without limitation, Section
2.12 hereof), to adopt any and all procedures necessary to comply with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of this Deposit
Agreement (the taking of such actions to be the conclusive determinant of the
necessity and appropriateness thereof).
Section 2.2 Form and Transferability of Receipts.
(a) Form. ADSs shall be evidenced by definitive Receipts which
shall be engraved, printed, lithographed or produced in such other manner as may
be agreed upon by the Company and the Depositary. Receipts may be issued under
this Deposit Agreement in denominations of any whole number of ADSs. The
Receipts shall be substantially in the form set forth in Exhibit A to this
Deposit Agreement, with any appropriate insertions, modifications and omissions,
in each case as otherwise contemplated in this Deposit Agreement or required by
applicable law. Receipts shall be (i) dated, (ii) signed by the manual or
facsimile signature of a duly authorized signatory of the Depositary, (iii)
countersigned by the manual or facsimile signature of a duly authorized
signatory of the Registrar, and (iv) registered in the books maintained by the
Registrar for the registration of issuances and transfers of Receipts. No
Receipt and no ADS evidenced thereby shall be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company, unless such Receipt shall have been so dated, signed,
countersigned and registered. Receipts bearing the facsimile signature of a
duly-authorized signatory of the Depositary or the Registrar, who at the time of
signature was a duly authorized signatory of the Depositary or the Registrar, as
the case may be, shall bind the Depositary, notwithstanding the fact that such
signatory has ceased to be so authorized prior to the delivery of such Receipt
by the Depositary. The Share ADRs and the Temporary ADRs shall each bear a
separate and distinct CUSIP number that is
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different from one another and from any CUSIP number that was, is or may be
assigned to any depositary receipts previously or subsequently issued pursuant
to any other arrangement between the Depositary (or any other depositary) and
the Company and which are not Receipts issued hereunder.
(b) Legends. The Receipts may be endorsed with, or have
incorporated in the text thereof, such legends or recitals not inconsistent with
the provisions of the Deposit Agreement (i) as may be necessary to enable the
Depositary to perform its obligations hereunder, (ii) as may be required to
comply with any applicable laws or regulations, or with the rules and
regulations of the New York Stock Exchange or of any other securities exchange
or market upon which ADSs may be traded, listed or quoted, or to conform with
any usage with respect thereto, (iii) as may be necessary to indicate any
special limitations or restrictions to which any particular Receipts or ADSs are
subject by reason of the date of issuance or type of the Deposited Securities or
otherwise, or (iv) as may be required by any book-entry system in which the ADSs
are held.
(c) Title. Subject to the limitations contained herein and in
the Receipt, title to a Receipt (and to each ADS evidenced thereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that such Receipt has been properly endorsed or
is accompanied by properly executed instruments of transfer. Notwithstanding any
notice to the contrary, the Depositary and the Company may deem and treat the
Holder of a Receipt (that is, the person in whose name a Receipt is registered
on the books of the Depositary) as the absolute owner thereof for all purposes.
Neither the Depositary nor the Company shall have any obligation nor be subject
to any liability under this Deposit Agreement or any Receipt to any holder of a
Receipt or any Beneficial Owner unless such holder is the Holder of such Receipt
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner, or the Beneficial Owner's representative, is the Holder
registered on the books of the Depositary.
(d) Book-Entry Systems. The Depositary shall make arrangements
for the acceptance of the ADSs into DTC. A single ADR in the form of a "Balance
Certificate" will (except as contemplated in Section 2.12) evidence the ADSs
held through DTC and will be registered in the name of the nominee for DTC
(currently "Cede & Co.") and will provide that it represents the aggregate
amount of ADSs from time to time indicated in the records of the Depositary as
being issued hereunder and that the aggregate amount of ADSs represented thereby
may from time to time be increased or decreased by making adjustments on such
records of the Depositary and of DTC or its nominee as hereinafter provided. As
such, the nominee for DTC will be the only "Holder" of the ADR evidencing the
ADSs held through DTC. Citibank, N.A. (or such other entity as is appointed by
DTC or its nominee) may hold the "Balance Certificate" as custodian for DTC.
Each Beneficial Owner of ADSs held through DTC must rely upon the procedures of
DTC and the DTC Participants to exercise or be entitled to any rights
attributable to such ADSs. The DTC Participants shall for all purposes be deemed
to have all requisite power and authority to act on behalf of the Beneficial
Owners of the ADSs held in the DTC Participants' respective accounts in DTC and
the Depositary shall for all purposes be authorized to rely upon
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any instructions and information given to it by DTC Participants on behalf of
Beneficial Owners of ADSs. So long as ADSs are held through DTC or unless
otherwise required by law, ownership of beneficial interests in the ADR
registered in the name of the nominee for DTC will be shown on, and transfers of
such ownership will be effected only through, records maintained by (i) DTC or
its nominee (with respect to the interests of DTC Participants), or (ii) DTC
Participants or their nominees (with respect to the interests of clients of DTC
Participants).
Section 2.3 Deposit with Custodian. The Depositary and the Company have
been advised that under Republic of China law, as in effect as of the date
hereof, no deposits of Eligible Securities may be made in the NYSE-listed ADR
Facility, and no ADSs may be issued against such deposits, without receipt of
specific approval of the Republic of China Securities and Futures Commission
(the "SFC"), except in connection with (i) the distribution of additional
Eligible Securities in connection with dividends on or free distributions of
Eligible Securities, (ii) the exercise by Holders of their preemptive rights
applicable to Eligible Securities evidenced by ADSs in the event of capital
increases for cash, or (iii) the purchase, as permitted hereunder, directly by
any person or through the Depositary of Shares on the TSE for deposit in the ADR
Facility, provided that the total number of ADSs outstanding after an issuance
described in clause (iii) does not exceed the number of issued ADSs previously
approved by the SFC in connection with the Offering (plus any ADSs created
pursuant to clauses (i) and (ii) above), and subject to any adjustment in the
number of Eligible Securities represented by each ADS. The Depositary and the
Company have been advised that under ROC law, as in effect as of the date
hereof, issuances under clause (iii) above will be permitted only to the extent
that previously issued ADSs have been canceled and the Eligible Securities
withdrawn from the ADR Facility upon cancellation of such ADSs have been sold on
the TSE. Except as contemplated by Section 2.13 hereof, the Depositary will not
accept any Shares for deposit pursuant to clause (iii) unless it receives
satisfactory opinions of ROC and U.S. counsel to the Company to the effect that
such Eligible Securities may lawfully be deposited pursuant to the Deposit
Agreement and are not Restricted Securities. The laws of the Republic of China
applicable to the deposit of Eligible Securities may change from time to time.
There can be no assurances that current law will continue in effect or that
future changes of Republic of China law will not adversely affect the ability to
deposit Eligible Securities hereunder.
The Initial Deposit(s) of Shares into the ADR Facilities will be made,
by or on behalf of the Company or the investors (or nominees for the investors)
acquiring Shares and/or ADSs in the Offering, by the delivery to the Custodian
of a Certificate of Payment evidencing the irrevocable right to receive the
physical share certificates representing the Shares registered in the name of
the nominee of the Depositary as representative of the Holders, as instructed by
the Depositary. Subject to the terms and conditions of this Deposit Agreement,
upon such Initial Deposit(s), the Depositary shall execute and deliver ADRs
evidencing the ADSs representing the Deposited Securities constituting the
Initial Deposit(s) in the manner provided in Sections 2.5 and 2.12.
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Subject to applicable laws and regulations of the Republic of China and
to the terms and conditions of this Deposit Agreement and applicable law,
Eligible Securities or evidence of rights to receive Eligible Securities (other
than Restricted Securities) may be deposited by any person (including the
Depositary in its individual capacity but subject, however, in the case of the
Company or any Affiliate of the Company, to Section 5.7 hereof) at any time,
whether or not the transfer books of the Company or the Eligible Securities
Registrar, if any, are closed, by Delivery of the Eligible Securities to the
Custodian. Every deposit of Eligible Securities shall be accompanied by the
following: (A) (i) in the case of Eligible Securities represented by
certificates issued in registered form, appropriate instruments of transfer or
endorsement, in a form satisfactory to the Custodian, (ii) in the case of
Eligible Securities represented by certificates in bearer form, the requisite
coupons and talons pertaining thereto, and (iii) in the case of Eligible
Securities delivered by book-entry transfer, confirmation of such book-entry
transfer to the Custodian or that irrevocable instructions have been given to
cause such Eligible Securities to be so transferred, (B) such certifications and
payments (including, without limitation, the Depositary's fees and related
charges) and evidence of such payments (including, without limitation, stamping
or otherwise marking such Eligible Securities by way of receipt) as may be
reasonably required by the Depositary or the Custodian in accordance with the
provisions of this Deposit Agreement and applicable law, (C) if the Depositary
so requires, a written order directing the Depositary to execute and deliver to,
or upon the written order of, the person(s) stated in such order a Receipt or
Receipts for the number of American Depositary Shares representing the Eligible
Securities so deposited, (D) evidence reasonably satisfactory to the Depositary
(which may be an opinion of counsel) that all necessary approvals have been
granted by, or there has been compliance with the rules and regulations of, any
applicable governmental agency in the Republic of China, and (E) if the
Depositary so requires, (i) an agreement, assignment or instrument reasonably
satisfactory to the Depositary or the Custodian which provides for the prompt
transfer by any person in whose name the Eligible Securities are or have been
recorded to the Custodian of any distribution, or right to subscribe for
additional Eligible Securities or to receive other property in respect of any
such deposited Eligible Securities or, in lieu thereof, such indemnity or other
agreement as shall be reasonably satisfactory to the Depositary or the Custodian
and (ii) if the Eligible Securities are registered in the name of the person on
whose behalf they are presented for deposit, a proxy or proxies entitling the
Custodian to exercise voting rights in respect of the Eligible Securities for
any and all purposes until the Eligible Securities so deposited are registered
in the name of the Depositary, the Custodian or any nominee.
Except as contemplated by Section 2.13, without limiting any other
provision of this Deposit Agreement, the Depositary shall instruct the Custodian
not to, and neither the Depositary nor the Custodian, nor any nominee, agent or
person acting on their behalf shall knowingly, accept for deposit (a) any
Restricted Securities nor (b) any fractional Eligible Securities nor (c) a
number of Eligible Securities which upon application of the ADS-to-Eligible
Securities ratio would give rise to fractional ADSs. No Eligible Securities
shall be accepted for deposit unless accompanied by evidence, if any is required
by the Depositary, that is reasonably satisfactory to the Depositary or the
Custodian that all conditions to such deposit have been satisfied by the
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person depositing such Eligible Securities under the laws and regulations of the
Republic of China and any necessary governmental approval has been granted in
the Republic of China, if any. The Depositary may issue ADSs against evidence of
rights to receive Eligible Securities from the Company, any agent of the Company
or any custodian, registrar, transfer agent, clearing agency or other entity
involved in ownership or transaction records in respect of the Eligible
Securities. Such evidence of rights may consist of, without limitation, written
specific guarantees of ownership of Eligible Securities furnished by the Company
or any such custodian, registrar, transfer agent, clearing agency or other
entity involved in ownership or transaction records in respect of the Eligible
Securities.
Section 2.4 Registration and Safekeeping of Deposited Securities. The
Depositary shall instruct the Custodian upon each Delivery of certificates
representing registered Eligible Securities being deposited hereunder with the
Custodian (or other Deposited Securities pursuant to Article IV hereof),
together with the other documents above specified, to promptly present such
certificate(s), together with the appropriate instrument(s) of transfer or
endorsement, duly stamped, to the Eligible Securities Registrar for transfer and
registration of the Eligible Securities (as soon as transfer and registration
can be accomplished and at the expense of the person for whom the deposit is
made) in the name of the Depositary, the Custodian or a nominee of either.
Deposited Securities shall be held by the Depositary or by a Custodian for the
account and to the order of the Depositary or a nominee in each case on behalf
of the Holders and Beneficial Owners, at such place or places as the Depositary
or the Custodian shall determine.
Without limitation of the foregoing, neither the Depositary nor the
Custodian, nor any nominee, agent or person acting on their behalf shall
knowingly accept for deposit under this Deposit Agreement any Eligible
Securities required to be registered under the provisions of the Securities Act,
unless a registration statement is in effect as to such Eligible Securities, or
any Eligible Securities the deposit of which would violate any provisions of the
Articles of Incorporation of the Company. In addition, and without limitation of
the foregoing, the Depositary and the Custodian will comply with written
instructions of the Company not to accept for deposit any Shares identified in
such instructions at such times and under such circumstances as may reasonably
be specified in such instructions in order to facilitate the Company's
compliance with the securities laws of the United States and other
jurisdictions.
Section 2.5 Execution and Delivery of Receipts. The Depositary has made
arrangements with the Custodian to confirm to the Depositary (i) that a deposit
of Eligible Securities has been made pursuant to Section 2.3 hereof, (ii) that
such Deposited Securities have been recorded in the name of the Depositary, the
Custodian or a nominee of either on the shareholders' register maintained by or
on behalf of the Company by the Eligible Securities Registrar if registered
Eligible Securities have been deposited or if deposit is made by book-entry
transfer, confirmation of such transfer in the books of the Taiwan Securities
Central Depository, (iii) that all required documents have been received, and
(iv) the person(s) to whom or upon whose order American Depositary Shares are
deliverable in respect thereof and the number of American Depositary Shares to
be so delivered thereby. Such notification may be made by first
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class airmail letter postage prepaid, cable, telex, SWIFT message or, at the
risk and expense of the person making the deposit, by facsimile or other means
of electronic transmission with confirmation of receipt. Upon receiving such
notice from the Custodian, the Depositary subject to the terms and conditions of
this Deposit Agreement, applicable law and the provisions of the Articles of
Incorporation of the Company and the Eligible Securities, shall issue the ADSs
representing the Eligible Securities so deposited to or upon the order of the
person(s) named in the notice delivered to the Depositary and shall execute and
deliver at its Principal Office Receipt(s) registered in the name(s) requested
by such person(s) and evidencing the aggregate number of ADSs to which such
person(s) are entitled, but only upon payment to the Depositary of the charges
of the Depositary for accepting a deposit, issuing ADSs and executing and
delivering such Receipt(s) (as set forth in Section 5.9 and Exhibit B hereto)
and all taxes and governmental charges and fees payable in connection with such
deposit and the transfer of the Eligible Securities and the issuance of the
Receipt(s). The Depositary shall only issue ADSs in whole numbers and deliver
ADRs evidencing whole numbers of ADSs. Nothing herein shall prohibit any
Pre-Release Transaction upon the terms set forth in this Deposit Agreement.
Section 2.6 Transfer, Combination and Split-Up of Receipts.
(a) Transfer. The Registrar shall promptly register the
transfer of Receipts (and of the ADSs represented thereby) on the transfer books
maintained for such purpose and the Depositary shall promptly cancel such
Receipts and execute new Receipts evidencing the same aggregate number and type
of ADSs as those evidenced by the Receipts canceled by the Depositary, shall
cause the Registrar to countersign such new Receipts and shall promptly Deliver
such new Receipts to or upon the order of the person entitled thereto, if each
of the following conditions has been satisfied: (i) the Receipts have been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof, (ii) the surrendered Receipts have been properly endorsed or are
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) the surrendered
Receipts have been duly stamped (if required by the laws of the State of New
York or of the United States), and (iv) all applicable fees and charges of, and
reasonable expenses incurred by, the Depositary and all applicable taxes and
governmental charges (as are set forth in Section 5.9 and Exhibit B hereto) have
been paid, subject, however, in each case, to the terms and conditions of the
applicable Receipts, of this Deposit Agreement and of applicable law, in each
case as in effect at the time thereof.
(b) Combination and Split-Up. The Registrar shall register the
split-up or combination of Receipts (and of the ADSs represented thereby) on the
books maintained for such purpose and the Depositary shall cancel such Receipts
and execute new Receipts for the number of ADSs requested, but in the aggregate
not exceeding the number of the same type of ADSs evidenced by the Receipts
canceled by the Depositary, shall cause the Registrar to countersign such new
Receipts and shall Deliver such new Receipts to or upon the order of the Holder
thereof, if each of the following conditions has been satisfied: (i) the
Receipts have been duly
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Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a split-up or
combination thereof, and (ii) all applicable fees and charges of, and reasonable
expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 and Exhibit B hereto) have been paid,
subject, however, in each case, to the terms and conditions of the applicable
Receipts, of this Deposit Agreement and of applicable law, in each case as
effect at the time thereof.
(c) Co-Transfer Agents. The Depositary may appoint one or more
co-transfer agents for the purpose of effecting transfers, combinations and
split-ups of Receipts at designated transfer offices on behalf of the
Depositary. In carrying out its functions, a co-transfer agent may require
evidence of authority and compliance with applicable laws and other requirements
by Holders or persons entitled to such Receipts and will be entitled to
protection and indemnity to the same extent as the Depositary. Such co-transfer
agents may be removed and substitutes appointed by the Depositary. Each
co-transfer agent appointed under this Section 2.6 (other than the Depositary)
shall give notice in writing to the Depositary accepting such appointment and
agreeing to be bound by the applicable terms of this Deposit Agreement.
Section 2.7 Surrender of ADSs and Withdrawal and Sale of Deposited
Securities.
(a) ROC Requirements. The Depositary and the Company have been
advised that under ROC law, as in effect as of the date hereof, a Holder wishing
to withdraw Deposited Securities from the ADR facility is required to appoint an
eligible agent in the Republic of China to open (i) a securities trading account
with a local brokerage firm after receiving an approval from the TSE and (ii) a
bank account (the securities trading account and the bank account, collectively,
the "Accounts"), to pay ROC taxes, remit funds, exercise shareholders' rights
and perform such other functions as may be designated by such withdrawing
Holder. In addition, such withdrawing Holder is also required to appoint a
custodian bank to hold the securities in safekeeping, make confirmations and
settle trades and report all relevant information. Without making such
appointment and the opening of such Accounts, the withdrawing Holder would be
unable to hold or subsequently sell the Deposited Securities withdrawn from the
ADR Facilities on the TSE or otherwise. The laws of the Republic of China
applicable to the withdrawal of Deposited Securities may change from time to
time. There can be no assurances that current law will remain in effect or that
future changes of Republic of China law will not adversely affect the ability of
Holders to withdraw Deposited Securities hereunder.
(b) Sale of Deposited Securities. Upon surrender of Receipts
at the Principal Office and upon payment of any fees, reasonable expenses, taxes
or other governmental charges as provided hereunder, subject to the terms of
this Deposit Agreement and the Company's Articles of Incorporation, and the
transfer restrictions applicable to the Deposited Securities, if any, Holders
may request that the Deposited Securities represented by such Holders' Receipts
be sold on such Holder's behalf. Any Holder requesting a sale of Deposited
Securities may be required by the Depositary to deliver, or cause to be
delivered, to the Depositary a written order
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requesting the Depositary to sell, or cause to be sold, such Deposited
Securities. Any such sale of Deposited Securities will be conducted in
accordance with applicable ROC law through a securities company in the ROC on
the TSE or in such other manner as is or may be permitted under applicable ROC
law. Any such sale of Deposited Securities will be at the expense and risk of
the Holder requesting such sale. Any Holder requesting the Depositary to sell
the Deposited Securities represented by such Holder's ADSs may be required to
enter into a separate agreement to cover the terms of the sale of such Deposited
Securities.
Upon receipt of any proceeds from any such sale, the Depositary shall,
subject to any restrictions imposed by ROC law and regulations, and as provided
hereunder, convert or cause to be converted any such proceeds into U.S. dollars
and distribute any such proceeds to the Holders entitled thereto after deduction
or payment of any fees, reasonable expenses, taxes or governmental charges
(including, without limitation, any ROC and U.S. taxes) incurred in connection
with such sale, as provided under this Deposit Agreement. Any such sale may be
subject to ROC taxation on capital gains, if any, and will be subject to a
securities transaction tax in the ROC. The ROC does not, as of the date hereof,
impose tax on capital gains arising from ROC securities transactions, but there
can be no assurance that a capital gains tax on ROC securities transactions will
not be imposed in the future or as to the manner in which any ROC capital gains
tax in respect of a sale of Deposited Securities would be imposed or calculated.
(c) Withdrawal of Deposited Securities. The Holder of ADSs
shall be entitled to Delivery (at the Custodian's designated office) of the
Deposited Securities at the time represented by the ADS(s) upon satisfaction of
each of the following conditions: (i) the Holder (or a duly authorized attorney
of the Holder) has duly Delivered ADSs to the Depositary at its Principal Office
(and if applicable, the Receipts evidencing such ADSs) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so required
by the Depositary, the Receipts Delivered to the Depositary for such purpose
have been properly endorsed in blank or are accompanied by proper instruments of
transfer in blank (including signature guarantees in accordance with standard
securities industry practice), (iii) if so required by the Depositary, the
Holder of the ADSs has executed and delivered to the Depositary a written order
directing the Depositary to cause the Deposited Securities being withdrawn to be
Delivered to or upon the written order of the person(s) designated in such
order, (iv) the Holder has delivered to the Depositary the certification
contemplated in Exhibit C hereof, duly completed by or on behalf of the
Beneficial Owner(s) of the ADSs surrendered for withdrawal (unless the
Depositary is otherwise instructed by the Company), and (v) all applicable fees
and charges of, and reasonable expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B hereof) have been paid, subject, however, in each case, to the terms
and conditions of the Receipts evidencing the surrendered ADSs, of the Deposit
Agreement, of the Company's Articles of Incorporation and of any applicable laws
and regulations of the Republic of China and of the United States and the rules
of the Taiwan Securities Central Depository, and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof.
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Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipts evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of the Receipts evidencing the ADSs so
canceled, of the Articles of Incorporation of the Company, of applicable laws
and regulations of the Republic of China and of the United States and of the
rules of the Taiwan Securities Central Depositary, and to the terms and
conditions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than a whole number of Eligible Securities. In the case of the Delivery to it of
ADSs representing a number other than a whole number of Eligible Securities, the
Depositary shall cause ownership of the appropriate whole number of Eligible
Securities to be Delivered in accordance with the terms hereof, and shall, at
the discretion of the Depositary, either (i) return to the person surrendering
such ADSs the number of ADSs representing any remaining fractional Eligible
Security, or (ii) sell or cause to be sold the fractional Eligible Security
represented by the ADS(s) so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs. In
addition, trading restrictions on the TSE may result in the price per Eligible
Security or on any lot of any type of Eligible Security other than an integral
multiple of 1,000 Eligible Securities being lower than the price of Eligible
Securities in lots of integral multiples of 1,000 Eligible Securities.
Notwithstanding anything else contained in any Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of Securities or rights, which are at the
time held by the Depositary in respect of the Deposited Securities represented
by the ADSs surrendered for cancellation and withdrawal. At the request, risk
and expense of any Holder so surrendering ADSs, and for the account of such
Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held by the
Custodian in respect of the Deposited Securities represented by such ADSs to the
Depositary for delivery at the Principal Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by air courier, cable, telex or facsimile transmission.
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Section 2.8 Additional Limitations on Execution and Delivery, Transfer,
etc. of Receipts; Suspension of Delivery, Transfer, etc.
(a) Additional Requirements. As a condition precedent to the
execution and delivery, registration, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Eligible Securities or
presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charges and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with respect to
Eligible Securities being deposited or withdrawn) and payment of any applicable
fees and charges of the Depositary as provided in Section 5.9 and Exhibit B
hereof, (ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by Section 3.1
hereof, and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts or American Depositary Shares
or to the deposit of Eligible Securities or the withdrawal of Deposited
Securities and (B) such reasonable regulations as the Depositary and the Company
may establish consistent with the provisions of the applicable Receipt, this
Deposit Agreement and applicable law.
(b) Additional Limitations. The issuance of ADSs against
deposits of Eligible Securities generally or against deposits of particular
Eligible Securities may be suspended, or the deposit of particular Eligible
Securities may be refused, or the registration of transfer of Receipts in
particular instances may be refused, or the registration of transfers of
Receipts generally may be suspended, during any period when the transfer books
of the Company, the Depositary, a Registrar or the Eligible Securities Registrar
are closed or if any such action is deemed necessary or advisable by the
Depositary or the Company, in good faith, at any time or from time to time
because of any requirement of law, any government or governmental body or
commission or any securities exchange on which the ADSs or Eligible Securities
are listed, or under any provision of this Deposit Agreement or the applicable
Receipt(s) or, under any provision of, or governing, the Deposited Securities,
or because of a meeting of shareholders of the Company or for any other reason,
subject, in all cases, to Section 7.8 hereof.
(c) Regulatory Restrictions. Notwithstanding any provision of
this Deposit Agreement or any Receipt(s) to the contrary, Holders are entitled
to surrender outstanding ADSs to withdraw the Deposited Securities at any time
subject only to (i) temporary delays caused by closing the transfer books of the
Depositary or the Company or the deposit of Eligible Securities in connection
with voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, (iii) compliance with any U.S. or
foreign laws or governmental regulations relating to the Receipts or to the
withdrawal of the Deposited Securities, and (iv) other circumstances
specifically contemplated by Section I.A.(1) of the General Instructions to Form
F-6 (as such General Instructions may be amended from time to time).
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Section 2.9 Lost Receipts, etc. In case any Receipt shall be mutilated,
destroyed, lost, or stolen, the Depositary shall execute and deliver a new
Receipt of like tenor at the expense of the Holder (a) in the case of a
mutilated Receipt, in exchange of and substitution for such mutilated Receipt
upon cancellation thereof, or (b) in the case of a destroyed, lost or stolen
Receipt, in lieu of and in substitution for such destroyed, lost, or stolen
Receipt, after the Holder thereof (i) has submitted to the Depositary a written
request for such exchange and substitution before the Depositary has notice that
the Receipt has been acquired by a bona fide purchaser, (ii) has provided such
security or indemnity (including an indemnity bond) as may be required by the
Depositary to save it and any of its agents harmless, and (iii) has satisfied
any other reasonable requirements imposed by the Depositary, including, without
limitation, evidence satisfactory to the Depositary of such destruction, loss or
theft of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records. All Receipts surrendered to the Depositary shall be
canceled by the Depositary. Canceled Receipts shall not be entitled to any
benefits under this Deposit Agreement or be valid or enforceable against the
Depositary for any purpose. The Depositary is authorized to destroy Receipts so
canceled, provided the Depositary maintains a record of all destroyed Receipts.
Any ADSs held in book-entry form (i.e., through accounts at DTC) shall be deemed
canceled when the Depositary causes the number of ADSs evidenced by the Balance
Certificate to be reduced by the number of ADSs surrendered (without the need to
physically destroy the Balance Certificate). The Depositary agrees to maintain
records of all Receipts surrendered and Deposited Securities withdrawn,
substitute Receipts delivered and canceled or destroyed Receipts in accordance
with procedures ordinarily followed by such transfer agents located in The City
of New York, or as required by the laws or regulations governing the Depositary.
Upon the reasonable request of the Company, the Depositary shall provide a copy
of such records to the Company.
Section 2.11 Partial Entitlement ADSs. In the event any Eligible
Securities are deposited which entitle the holders thereof to receive a
per-Deposited Security distribution or other entitlement in an amount different
from the Deposited Securities then on deposit (the Deposited Securities then on
deposit collectively, "Full Entitlement Deposited Securities" and the Deposited
Securities with different entitlement collectively, "Partial Entitlement
Deposited Securities"), the Depositary shall (i) cause the Custodian to hold
Partial Entitlement Deposited Securities separate and distinct from Full
Entitlement Deposited Securities, and (ii) subject to the terms of this Deposit
Agreement, issue ADSs and deliver ADRs representing Partial Entitlement
Deposited Securities which are separate and distinct from the ADSs and ADRs
representing Full Entitlement Deposited Securities, by means of separate CUSIP
numbering and legending (if necessary) ("Partial Entitlement ADSs/ADRs" and
"Full Entitlement ADSs/ADRs", respectively). If and when the Company informs the
Depositary in writing that the Partial Entitlement Eligible Securities become
Full Entitlement Eligible Securities, the Depositary shall (a) give notice
thereof to Holders of Partial Entitlement ADSs and give Holders of Partial
Entitlement ADRs the opportunity to exchange such Partial Entitlement ADRs for
Full Entitlement ADRs, (b) cause the Custodian to transfer the Partial
Entitlement Deposited
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Securities into the account of the Full Entitlement Deposited Securities, and
(c) take such actions as are necessary to remove the distinctions between (i)
the Partial Entitlement ADRs and ADSs, on the one hand, and (ii) the Full
Entitlement ADRs and ADSs on the other. Holders and Beneficial Owners of Partial
Entitlement ADSs shall only be entitled to the entitlements of Partial
Entitlement Deposited Securities. Holders and Beneficial Owners of Full
Entitlement ADSs shall be entitled only to the entitlements of Full Entitlement
Deposited Securities. All provisions and conditions of this Deposit Agreement
shall apply to Partial Entitlement ADRs and ADSs to the same extent as Full
Entitlement ADRs and ADSs, except as contemplated by this Section 2.11. The
Depositary is authorized to take any and all other actions as may be necessary
(including, without limitation, making the necessary notations on Receipts) to
give effect to the terms of this Section 2.11. The Company agrees to give timely
written notice to the Depositary if any Eligible Securities issued or to be
issued are Partial Entitlement Eligible Securities and shall assist the
Depositary with the establishment of procedures enabling the identification of
Partial Entitlement Eligible Securities upon Delivery to the Custodian.
Section 2.12 Temporary ADSs. In the event that, in determining the
rights and obligations of parties hereto with respect to any Temporary ADSs, any
conflict arises between (a) the terms of this Deposit Agreement (other than this
Section 2.12) and (b) the terms of (i) the Temporary ADSs issued hereunder as
set forth in this Section 2.12 or (ii) the applicable Temporary ADR, the terms
and conditions set forth in this Section 2.12 or the applicable Temporary ADR
shall be controlling and shall govern the rights and obligations of the parties
to this Deposit Agreement pertaining to the Certificate of Payment, the
Temporary ADSs and the Temporary ADRs.
Whenever the Company proposes to issue any Certificate of Payment
eligible for deposit hereunder (in connection with the Offering or otherwise),
the Company shall timely notify the Depositary thereof and provide the
Depositary with written instructions to the effect that, inter alia, (i) the
Certificate of Payment has been or is to be issued pursuant to a bona fide
purchase of Shares from the Company, (ii) the Certificate of Payment is not, and
shall not be deemed to be upon its deposit, and the Shares issuable pursuant to
the terms of the Certificate of Payment will not be, Restricted Securities,
(iii) a description of the rights (if any) to any distribution upon Deposited
Securities to be made to Holders of Temporary ADSs representing such
Certificates of Payment upon the terms set forth in Article IV hereof, and (iv)
the date established by the Company upon which the Company shall convert or
cause to be converted the Certificate of Payment into Shares on its records and
on the records of the Eligible Securities Registrar.
Subject always to the laws and regulations of the Republic of China,
upon deposit of any Certificate of Payment hereunder and payment to the
Depositary of the charges of the Depositary for accepting a deposit, issuing
ADSs and issuing and delivering Receipts (as set forth in Section 5.9 and
Exhibit B hereto), the Depositary shall (i) cause the Custodian to hold such
Certificate of Payment separate and distinct from the Shares, any other
Certificate(s) of Payment and any other Deposited Securities and (ii) issue and
deliver Temporary ADSs representing interests in the Certificate of Payment so
deposited. The Temporary ADSs so issued shall be identified and
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treated separately and distinctly from any other ADSs representing Deposited
Securities hereunder by means, inter alia, of separate CUSIP numbering and
legending (if necessary). The Depositary may issue Temporary ADSs in one or
multiple series as the Depositary in its sole discretion deems necessary and
appropriate. No Temporary ADS shall be fungible with any other ADSs issued
hereunder.
The Depositary shall deliver Temporary ADSs in book-entry form only. No
certificated Temporary ADRs will be issued except for a "Balance Certificate"
evidencing all Temporary ADSs held in DTC, which shall be substantially in the
form of Temporary ADR set forth in Exhibit A hereto, except as may be necessary
to identify and treat the Temporary ADSs as separate and distinct from any other
ADSs issued under the terms of this Deposit Agreement. The Depositary shall make
arrangements for the acceptance of such Temporary ADSs into DTC upon the terms
set forth in Section 2.2(d) hereof. The Temporary ADSs and the Temporary ADRs
evidenced thereby are identical to and confer all of the rights and obligations
set forth herein relating to Receipts and ADSs represented thereby except that
(i) in accordance with the applicable laws and regulations of the Republic of
China, Holders of Temporary ADRs will have no right to withdraw the Deposited
Securities represented by their Temporary ADSs, (ii) Temporary ADRs shall bear
separate CUSIP numbers that shall be different from any CUSIP number that is or
may be assigned to the other ADSs issued hereunder, (iii) neither Temporary ADSs
nor interests in any Certificate of Payment shall be eligible for any
Pre-Cancellation Sale Transactions or Pre-Release Transactions described in
Section 5.10 hereof and (iv) in the event that the Company makes any
distributions upon Deposited Securities upon the terms of Article IV of this
Deposit Agreement, the Depositary shall make distributions to Holders of
Temporary ADSs on the basis of the distribution(s) received from the Company in
respect of the Certificate(s) of Payment corresponding to the series of
Temporary ADSs held by such Holder. Nothing herein shall impose any obligation
upon the Depositary to make any distributions to Holders of any series of
Temporary ADSs on the same basis as Holders of Share ADSs or any other Series of
Temporary ADSs issued hereunder.
The Company undertakes to make Shares available in exchange for any
specified Certificate of Payment, as soon as possible after the issuance of the
Certificate of Payment and to provide timely notice thereof to the Depositary.
Upon receipt of such notice from the Company, the Depositary shall instruct the
Custodian to surrender any such Certificate of Payment then eligible for
exchange to the Company against delivery of Shares to the Depositary in exchange
therefor. Upon receipt by the Depositary of (i) notice of the exchange of Shares
for such Certificate of Payment and (ii) confirmation from the Company that the
Shares so received rank in all respects pari passu with the Deposited Securities
evidenced by Share ADSs, the Depositary shall give notice thereof to the
applicable Holders of Temporary ADSs and thereafter Temporary ADSs shall be
eligible for exchange into Share ADSs. Interests in Temporary ADSs in DTC will
be automatically exchanged for beneficial interests in Share ADSs as follows:
with no further action by Holders, the Depositary shall instruct DTC to
automatically transfer any position held by a DTC participant under the CUSIP
number assigned to the Temporary ADSs to the CUSIP number assigned to the Share
ADSs. Holders and Beneficial Owners of such Temporary ADSs
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shall thereafter be Holders and Beneficial Owners of Share ADSs issued hereunder
and shall have all the rights and obligations specified in this Deposit
Agreement and in the Receipts pertaining to Share ADSs. The Depositary will
charge no fee for the cancellation of the Temporary ADSs and issuance of Share
ADSs in exchange therefor.
Notwithstanding anything in the Deposit Agreement to the contrary, the
Depositary shall have no obligation to any party to exchange Temporary ADSs for
Share ADSs as provided herein unless and until, upon delivery by the Depositary
of the related Certificate of Payment, the Company shall have delivered Shares
in respect thereof to the Depositary.
Section 2.13 Restricted ADRs and Restricted ADSs. The Depositary shall,
at the request and expense of the Company, establish procedures enabling the
deposit hereunder of Shares that are Restricted Securities in order to enable
the holder of such Shares to hold its ownership interests in such Restricted
Securities in the form of ADSs issued under the terms hereof (such Shares,
"Restricted Shares"). Upon receipt of a written request from the Company to
accept Restricted Shares for deposit hereunder, the Depositary agrees to
establish procedures permitting the deposit of such Restricted Shares and the
issuance of Restricted ADSs representing such deposited Restricted Shares (such
ADSs, "Restricted ADSs", and the ADRs evidencing such Restricted ADSs, the
"Restricted ADRs"). The Company shall assist the Depositary in the establishment
of such procedures and agrees that it shall take all commercially reasonable
steps necessary and satisfactory to the Depositary to insure that the
establishment of such procedures does not violate the provisions of the
Securities Act or any other applicable laws. The depositors of such Restricted
Shares and the holders of the Restricted ADSs may be required prior to the
deposit of such Restricted Shares, the transfer of the Restricted ADRs and the
Restricted ADSs evidenced thereby or the withdrawal of the Restricted Shares
represented by Restricted ADSs to provide such written certifications or
agreements as the Depositary or the Company may require. The Company shall
provide to the Depositary in writing the legend(s) to be affixed to the
Restricted ADRs, which legends shall (i) be in a form reasonably satisfactory to
the Depositary and (ii) contain the specific circumstances under which the
Restricted ADRs and the Restricted ADSs represented thereby may be transferred
or the Restricted Shares withdrawn. The Restricted ADSs issued upon the deposit
of Restricted Shares shall be separately identified on the books of the
Depositary and the Restricted Shares so deposited shall be held separate and
distinct from the other Deposited Securities held hereunder. The Restricted
Shares and the Restricted ADSs shall not be eligible for Pre-Release
Transactions or Pre-Cancellation Sales Transactions described in Section 5.10
hereof. The Restricted ADSs shall not be eligible for inclusion in any
book-entry settlement system, including, without limitation, DTC, and shall not
in any way be fungible with the ADSs issued under the terms hereof that are not
Restricted ADSs. The Restricted ADRs and the Restricted ADSs evidenced thereby
shall be transferrable only by the holder thereof upon delivery to the
Depositary of (i) all documentation otherwise contemplated by this Deposit
Agreement and (ii) an opinion of counsel satisfactory to the Depositary setting
forth, inter alia, the conditions upon which the Restricted ADR presented is,
and the Restricted ADSs evidenced thereby are, transferrable by the holder
thereof under applicable securities laws and the transfer restrictions contained
in the legend set forth on the
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Restricted ADR presented for transfer. Except as set forth in the Section 2.13,
and except as required by applicable law, the Restricted ADRs and the Restricted
ADSs evidenced thereby shall be treated as ADRs and ADSs issued and outstanding
under the terms of this Deposit Agreement.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSS
Section 3.1 Proofs, Certificates and Other Information. Any person
presenting Eligible Securities for deposit, any Holder and any Beneficial Owner
may be required, and every Holder and Beneficial Owner agrees, from time to time
to provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control and any other applicable regulatory
approval, legal or beneficial ownership of ADSs and Deposited Securities,
compliance with applicable laws, the terms of this Deposit Agreement or the
Receipt(s) evidencing the ADS(s) and the provisions of, or governing, the
Deposited Securities, to execute such certifications and to make such
representations and warranties, and to provide such other information and
documentation (or, in the case of Eligible Securities in registered form
presented for deposit, such information relating to the registration on the
books of the Company or of the Eligible Securities Registrar) as the Depositary
or the Custodian may deem necessary or proper or as the Company may reasonably
require by written request to the Depositary consistent with its obligations
under this Deposit Agreement and the applicable Receipt(s). The Depositary and
the Registrar, as applicable, may, and at the reasonable written request of the
Company shall, withhold the execution or delivery or registration of transfer of
any Receipt or the distribution or sale of any dividend or distribution of
rights or of the proceeds thereof or, to the extent not limited by the terms of
Section 7.8 hereof, the delivery of any Deposited Securities, or may refuse to
adjust its records, until such proof or other information is filed or such
certifications are executed, or such representations are made, or such other
documentation or information provided, in each case to the Depositary's, the
Registrar's and the Company's satisfaction. The Depositary shall provide the
Company, in a timely manner, with copies or originals if necessary and
appropriate of (i) any such proofs of citizenship or residence, taxpayer status,
or exchange control approval which it receives from Holders and Beneficial
Owners, and (ii) any other information or documents which the Company may
reasonably request and which the Depositary shall request and receive from any
Holder or Beneficial Owner or any person presenting Eligible Securities for
deposit or ADSs for cancellation, transfer or withdrawal. Nothing herein shall
obligate the Depositary to (i) obtain any information for the Company if not
provided by the Holders or Beneficial Owners, or (ii) verify or vouch for the
accuracy of the information so provided by the Holders or Beneficial Owners.
Section 3.2 Liability for Taxes and Other Charges. If any tax or other
governmental charge shall become payable by the Depositary or the Custodian with
respect to any ADR or any
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Deposited Securities or American Depositary Shares, such tax or other
governmental charge shall be payable by the Holders and Beneficial Owners to the
Depositary. The Company, the Custodian and/or the Depositary may withhold or
deduct from any distributions made in respect of Deposited Securities and may
sell for the account of a Holder and/or Beneficial Owner any or all of the
Deposited Securities and apply such distributions and sale proceeds in payment
of such taxes (including applicable interest and penalties) or charges, the
Holder and the Beneficial Owner remaining liable for any deficiency. The
Custodian may refuse the deposit of Eligible Securities and the Depositary may
refuse to issue ADSs, to deliver ADRs, register the transfer, split-up or
combination of ADRs and (subject to Section 7.8) the withdrawal of Deposited
Securities until payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the Depositary,
the Company, the Custodian, and any of their agents, officers, employees and
Affiliates for, and to hold each of them harmless from, any claims with respect
to taxes (including applicable interest and penalties thereon) arising from any
tax benefit obtained for such Holder and/or Beneficial Owner.
Section 3.3 Representations and Warranties on Deposit of Eligible
Securities.
(a) Deposit of Shares. Each person depositing Shares under
this Deposit Agreement shall be deemed thereby to represent and warrant that (i)
such Shares and the certificates therefor are duly authorized, validly issued,
fully paid, non-assessable and legally obtained by such person, (ii) all
preemptive (and similar) rights, if any, with respect to such Shares have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Shares presented for deposit are free and clear of
any lien, encumbrance, security interest, charge, mortgage or adverse claim, and
are not, and the American Depositary Shares issuable upon such deposit will not
be, Restricted Securities and (v) the Shares presented for deposit have not been
stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit and withdrawal of Shares, the issuance and
cancellation of American Depositary Shares in respect thereof and the transfer
of such American Depositary Shares.
(b) Deposit of Certificate(s) of Payment. Whenever the Company
shall deposit any Certificate of Payment under this Deposit Agreement the
Company shall be deemed thereby to represent and warrant that (i) such
Certificate of Payment is, and the Shares to be received in exchange for the
Certificate of Payment will be, duly authorized, validly issued, fully paid,
non-assessable and legally obtained, (ii) all preemptive (and similar) rights,
if any, with respect to such Certificate of Payment has been, and with respect
to the Shares to be received in exchange for the Certificate of Payment will
have been, validly waived or exercised, (iii) the Company has duly authorized
the issuance of the Shares to be delivered in exchange for the Payment
Certificate so presented for deposit, (iv) the Certificate of Payment presented
for deposit is, and the Shares to be deposited upon the exchange of the
Participation Certificates for Shares will be, free and clear of any lien,
encumbrance, security interest, change, mortgage or adverse claim, and are not,
and the Temporary ADSs issuable upon such deposit will not be, Restricted
Securities and (v) the Certificate of Payment presented for deposit has not
been, and the Shares to be
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deposited upon the exchange for the Certificate of Payment will not have been,
stripped of any rights or entitlements. Such representations and warranties
shall survive the deposit of any Certificate of Payment, the issuance and
cancellation of Temporary ADSs in respect thereof and the transfer of such
Temporary ADSs.
If any such representations or warranties are false in any way, the
Depositary shall be authorized, at the cost and expense of the Company, to take
any and all actions necessary to correct the consequences thereof.
Section 3.4 Compliance with Information Requests. Notwithstanding any
other provision of this Deposit Agreement or any Receipt(s), each Holder and
Beneficial Owner agrees to comply with requests from the Company pursuant to
applicable U.S. and Republic of China laws or regulations, the rules and
requirements of the TSE, and any other stock exchange on which the Eligible
Securities or ADSs are, or will be, registered, traded or listed or the Articles
of Incorporation of the Company, which are made to provide information, inter
alia, as to the capacity in which such Holder or Beneficial Owner owns American
Depositary Shares (and Eligible Securities or Deposited Securities, as the case
may be) and regarding the identity of any other person(s) interested in such
American Depositary Shares and the nature of such interest and various other
matters, whether or not they are Holders and/or Beneficial Owners at the time of
such request. The Depositary agrees to use its reasonable efforts to forward,
upon the request of the Company and at the Company's expense, any such request
from the Company to the Holders and to forward to the Company any such responses
to such requests received by the Depositary.
Section 3.5 Ownership Restrictions. Notwithstanding any other provision
in this Deposit Agreement or any Receipt, the Company may restrict transfers of
the Shares, Eligible Securities or securities convertible into Shares where the
Company informs the Depositary that such transfer might result in ownership of
Shares exceeding limits imposed by applicable law, the SFC, the TSE or the
Articles of Incorporation of the Company. The Company may also restrict, in such
manner as it deems appropriate, transfers of the American Depositary Shares
where such transfer may result in the total number of Shares, Deposited
Securities, or securities convertible into Shares represented by the American
Depositary Shares owned by a single Holder or Beneficial Owner to exceed any
such limits. The Company may, in its sole discretion but subject to applicable
law, instruct the Depositary to take action with respect to the ownership
interest of any Holder or Beneficial Owner in excess of the limits set forth in
the preceding sentence, including, but not limited to, the imposition of
restrictions on the transfer of American Depositary Shares, the removal or
limitation of voting rights or the mandatory sale or disposition on behalf of a
Holder or Beneficial Owner of the Deposited Securities represented by the
American Depositary Shares held by such Holder or Beneficial Owner in excess of
such limitations, if and to the extent such disposition is permitted by
applicable law and the Articles of Incorporation of the Company.
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ARTICLE IV
THE DEPOSITED SECURITIES
Section 4.1 Cash Distributions. Subject always to the laws and
regulations of the Republic of China, whenever the Depositary receives
confirmation from the Custodian of the receipt of any cash dividend or other
cash distribution on any Deposited Securities, or receives proceeds from the
sale of any Deposited Securities or any entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will (i) if at the
time of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.8) be converted on a
practicable basis into Dollars transferable to the United States, promptly
convert or cause to be converted such cash dividend, distribution or proceeds
into Dollars (on the terms described in Section 4.8), (ii) if applicable,
establish the ADS Record Date upon the terms described in Section 4.9, and (iii)
distribute promptly the amount thus received (net of (a) the applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and (b) taxes
withheld) to the Holders entitled thereto as of the ADS Record Date (if
applicable) in proportion to the number of American Depositary Shares
representing such Deposited Securities held as of the ADS Record Date (if
applicable). The Depositary shall distribute only such amount, however, as can
be distributed without attributing to any Holder a fraction of one cent, and any
balance not so distributed shall be held by the Depositary (without liability
for interest thereon) and shall be added to and become part of the next sum
received by the Depositary for distribution to Holders of ADSs outstanding at
the time of the next distribution. If the Company, the Custodian or the
Depositary is required to withhold and does withhold from any cash dividend or
other cash distribution in respect of any Deposited Securities an amount on
account of taxes, duties or other governmental charges, the amount distributed
to Holders on the American Depositary Shares representing such Deposited
Securities shall be reduced accordingly. Such withheld amounts shall be
forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request. The Depositary or the
Custodian, as the case may be, will forward to the Company or its agent such
information from its records as the Company may reasonably request to enable the
Company or its agent to file necessary reports with governmental agencies, and
the Depositary or the Custodian, as the case may be, or the Company or its agent
may file any such reports necessary to obtain benefits under the applicable tax
treaties for Holders of ADSs.
Section 4.2 Distribution in Eligible Securities. Subject always to the
laws and regulations of the Republic of China, if any distribution upon any
Deposited Securities consists of a dividend in, or free distribution of,
Eligible Securities, the Company shall cause such Eligible Securities Shares to
be deposited with the Custodian and registered, as the case may be, in the name
of the Depositary, the Custodian or their respective nominees. Upon receipt of
confirmation of such deposit from the Custodian, the Depositary shall establish
the ADS Record Date upon the terms described in Section 4.9 and either (i) the
Depositary shall, subject to Section 5.9 hereof and the laws and regulations of
the Republic of China, distribute to the
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Holders as of the ADS Record Date in proportion to the number of American
Depositary Shares held as of the ADS Record Date, additional American Depositary
Shares (of the applicable series), which represent in the aggregate the number
of Eligible Securities received as such dividend, or free distribution, subject,
however, in each case, to the other terms of this Deposit Agreement (including,
without limitation, the limitations set forth in Article II hereof and (a) the
applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes), or (ii) if additional American Depositary Shares are
not so distributed, each American Depositary Share issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interests in the additional integral number of Shares
distributed upon the Deposited Securities represented thereby (subject, however,
in each case, to the laws and regulations of the Republic of China and net of
(a) the applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes). In lieu of delivering fractional American Depositary
Shares, the Depositary shall sell the number of Eligible Securities or American
Depositary Shares, as the case may be, represented by the aggregate of such
fractions and distribute the net proceeds upon the terms described in Section
4.1. In the event that (x) the Depositary determines that any distribution in
property (including Eligible Securities) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or (y) if
the Company in the fulfillment of its obligation under Section 5.7 hereof, has
furnished an opinion of U.S. counsel determining that Eligible Securities must
be registered under the Securities Act or other laws in order to be distributed
to Holders (and no such registration statement has been declared effective), or
(z) the deposit of Eligible Securities is not permitted under the laws or
regulations of the Republic of China, the Depositary may dispose of all or a
portion of such property (including Eligible Securities and rights to subscribe
therefor) in such amounts and in such manner, including by public or private
sale, as the Depositary deems necessary and practicable, and the Depositary
shall distribute the net proceeds of any such sale (after deduction of such (a)
taxes and (b) fees and charges of, and reasonable expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms described in Section 4.1.
The Depositary shall hold and/or distribute any unsold balance of such property
in accordance with the provisions of this Deposit Agreement.
Section 4.3 Elective Distributions in Cash or Eligible Securities.
Subject always to the laws and regulations of the Republic of China, whenever
the Company intends to distribute a dividend payable at the election of the
holders of Eligible Securities in cash or in additional Eligible Securities, the
Company shall give timely notice thereof to the Depositary prior to the proposed
distribution stating whether or not it wishes such elective distribution to be
made available to Holders of ADSs. Upon receipt of notice indicating that the
Company wishes such elective distribution to be made available to Holders of
ADSs, the Depositary shall consult with the Company to determine, and the
Company shall assist the Depositary in its determination, whether it is lawful
and reasonably practicable to make such elective distribution available to the
Holders of ADSs. The Depositary shall make such elective distribution available
to Holders only if (i) the Depositary shall have determined that such
distribution is reasonably practicable and (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7. If the
above conditions are not satisfied, the Depositary shall, to the extent
permitted by law,
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distribute to the 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 cash upon the terms described in Section 4.1 or
additional ADSs representing such additional Eligible Securities upon the terms
described in Section 4.2. If the above conditions are satisfied, the Depositary
shall establish an ADS Record Date (on the terms described in Section 4.9) and
establish procedures to enable Holders to elect the receipt of the proposed
dividend in cash or in additional ADSs. The Company shall assist the Depositary
in establishing such procedures to the extent necessary. If a Holder elects to
receive the proposed dividend in cash, the dividend shall be distributed upon
the terms described in Section 4.1, or in ADSs, the dividend shall be
distributed upon the terms described in Section 4.2. Nothing herein shall
obligate the Depositary to make available to Holders a method to receive the
elective dividend in Eligible Securities (rather than ADSs). There can be no
assurance that Holders generally, or any Holder in particular, will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Deposited Securities.
Section 4.4 Distribution of Rights to Purchase Additional ADSs.
(a) Distribution to ADS Holders. Subject always to the laws
and regulations of the Republic of China, whenever the Company intends to
distribute to the holders of the Deposited Securities rights to subscribe for
Eligible Securities, the Company shall give timely notice thereof to the
Depositary stating whether or not it wishes such rights to be made available to
Holders of ADSs. Upon receipt of a notice indicating that the Company wishes
such rights to be made available to Holders of ADSs, the Depositary shall
consult with the Company to determine, and the Company shall assist the
Depositary in its determination, whether it is lawful and reasonably practicable
to make such rights available to the Holders. The Depositary shall make such
rights available to Holders only if (i) the Company shall have timely requested
that such rights be made available to Holders, (ii) the Depositary shall have
received satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution of rights is
reasonably practicable. In the event any of the conditions set forth above are
not satisfied or if the Company requests that the rights not be made available
to Holders of ADSs, the Depositary shall proceed with the sale of the rights as
contemplated in Section 4.4(b) below. In the event all conditions set forth
above are satisfied, the Depositary shall establish an ADS Record Date (upon the
terms described in Section 4.9) and establish procedures to (x) distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise such rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the
valid exercise of such rights. The Company shall assist the Depositary to the
extent necessary in establishing such procedures. Nothing herein shall obligate
the Depositary to make available to the Holders a method to exercise rights to
subscribe for Eligible Securities (rather than ADSs).
(b) Sale of Rights. If (i) the Company does not timely request
the Depositary to make the rights available to Holders or requests that the
rights not be made available to
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Holders, (ii) the Depositary fails to receive satisfactory documentation within
the terms of Section 5.7 or determines it is not lawful or not reasonably
practicable to make the rights available to Holders, or (iii) any rights made
available are not exercised and appear to be about to lapse, the Depositary
shall determine in its discretion but after consultation with the Company
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
or private sale) as it may deem practical. The Company shall assist the
Depositary to the extent necessary to determine such legality and
practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms set forth in Section
4.1.
(c) Lapse of Rights. If the Depositary is unable to make any
rights available to Holders upon the terms described in Section 4.4(a) or to
arrange for the sale of the rights upon the terms described in Section 4.4(b),
the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything to the contrary in this Section 4.4, if
registration (under the Securities Act or any other applicable law) of the
rights or the securities to which any rights relate may be required in order for
the Company to offer such rights or such securities to Holders and to sell the
securities represented by such rights, the Depositary will not distribute such
rights to the Holders (i) unless and until a registration statement under the
Securities Act (or other applicable law) covering such offering is in effect or
(ii) unless the Company furnishes the Depositary with opinions of counsel for
the Company in the United States and counsel to the Company in any other
applicable country in which rights would be distributed, in each case
satisfactory to the Depositary, to the effect that the offering and sale of such
securities to Holders and Beneficial Owners are exempt from, or do not require
registration under, the provisions of the Securities Act or any other applicable
laws.
In the event that the Company, the Depositary or the Custodian shall be
required to withhold and does withhold from any distribution of property
(including rights) an amount on account of taxes or other governmental charges,
the amount distributed to the Holders of American Depositary Shares representing
such Deposited Securities shall be reduced accordingly. In the event that the
Depositary determines that any distribution in property (including Eligible
Securities and rights to subscribe therefor) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, the
Depositary may dispose of all or a portion of such property (including Eligible
Securities and rights to subscribe therefor) in such amounts and in such manner,
including by public or private sale, as the Depositary deems necessary and
practicable to pay any such taxes or charges.
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There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Deposited Securities or be able to
exercise such rights. Nothing herein shall obligate the Company to file any
registration statement in respect of any rights or Eligible Securities or other
securities to be acquired upon the exercise of such rights.
Section 4.5 Distributions Other Than Cash, Eligible Securities or
Rights to Purchase Eligible Securities. (a) Whenever the Company intends to
distribute to the holders of Deposited Securities property other than cash,
Eligible Securities or rights to purchase additional Eligible Securities, the
Company shall give timely notice thereof to the Depositary and shall indicate
whether or not it wishes such distribution to be made to Holders of ADSs. Upon
receipt of a notice indicating that the Company wishes such distribution to be
made to Holders of ADSs, the Depositary shall consult with the Company, and the
Company shall assist the Depositary, to determine whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall not make such
distribution unless (i) the Company shall have requested the Depositary to make
such distribution to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7, and (iii) the
Depositary shall have determined that such distribution is lawful and reasonably
practicable.
(b) Upon receipt of satisfactory documentation and the request
of the Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary shall distribute
the property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and reasonable
expenses incurred by, the Depositary, and (ii) net of any taxes withheld. The
Depositary may dispose of all or a portion of the property so distributed and
deposited, in such amounts and in such manner (including by public or private
sale) as the Depositary may deem practicable or necessary to satisfy any taxes
(including applicable interest and penalties) or other governmental charges
applicable to the distribution.
(c) If (i) the Company does not request the Depositary to make
such distribution to Holders or requests the Depositary not to make such
distribution to Holders, (ii) the Depositary does not receive satisfactory
documentation within the terms of Section 5.7, or (iii) the Depositary
determines that all or a portion of such distribution is not reasonably
practicable, the Depositary shall sell or cause such property to be sold in a
public or private sale, at such place or places and upon such terms as it may
deem practicable and shall (i) cause the proceeds of such sale, if any, to be
converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of, and
reasonable expenses incurred by, the Depositary and (b) taxes) to the Holders as
of the ADS Record Date upon the terms of Section 4.1. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances.
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Section 4.6 Distributions with Respect to Deposited Securities in
Bearer Form. Subject always to the laws and regulations of the Republic of China
and to the terms of this Article IV, distributions in respect of Deposited
Securities that are held by the Depositary in bearer form shall be made to the
Depositary for the account of the respective Holders of Receipts with respect to
which any such distribution is made upon due presentation by the Depositary or
the Custodian to the Company of any relevant coupons, talons, or certificates.
The Company shall promptly notify the Depositary of such distributions. The
Depositary or the Custodian shall promptly present such coupons, talons or
certificates, as the case may be, in connection with any such distribution.
Section 4.7 Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
timely notice thereof to the Depositary which notice shall set forth the
particulars of the proposed redemption. Upon receipt of (i) such notice and (ii)
satisfactory documentation given by the Company to the Depositary within the
terms of Section 5.7, and only if the Depositary shall have determined that such
proposed redemption is reasonably practicable, the Depositary shall deliver to
each Holder a notice setting forth the intended exercise by the Company of the
redemption rights and any other particulars set forth in the Company's notice to
the Depositary. The Depositary shall instruct the Custodian to present to the
Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the expenses incurred by, the Depositary, and (b) taxes), retire
ADSs and cancel ADRs upon delivery of such ADSs by Holders thereof and the terms
set forth in Sections 4.1 and 6.2 hereof. If less than all outstanding Deposited
Securities are redeemed, the ADSs to be retired will be selected by lot or on a
pro rata basis, as may be determined by the Depositary. The redemption price per
ADS shall be the per Deposited Security amount received by the Depositary upon
the redemption of the Deposited Securities represented by American Depositary
Shares (subject to the terms of Section 4.8 hereof and the applicable fees and
charges of, and reasonable expenses incurred by, the Depositary, and taxes)
multiplied by the number of Deposited Securities represented by each ADS
redeemed.
Section 4.8 Conversion of Foreign Currency. Subject to any restrictions
imposed by ROC law and regulations, including, without limitation, receipt of
foreign exchange approval from the Central Bank of China for conversion of funds
from and/or into NT dollars whenever the Depositary or the Custodian shall
receive Foreign Currency, by way of dividends or other distributions or the net
proceeds from the sale of securities, property or rights, which in the judgment
of the Depositary can at such time be converted on a practicable basis, by sale
or in any other manner that it may determine in accordance with applicable law,
into Dollars transferable to the United States and distributable to the Holders
entitled thereto, the Depositary shall, subject to the laws and regulations of
the Republic of China, convert or cause to be converted, by sale or in any other
manner that it may determine, such Foreign Currency into Dollars, and shall
distribute such Dollars (net of any applicable fees, any reasonable and
customary expenses
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incurred in such conversion and any reasonable expenses incurred on behalf of
the Holders in complying with currency exchange control or other governmental or
regulatory requirements) in accordance with the terms of the applicable sections
of this Deposit Agreement. If the Depositary shall have distributed warrants or
other instruments that entitle the holders thereof to such Dollars, the
Depositary shall distribute such Dollars to the holders of such warrants and/or
instruments upon surrender thereof for cancellation, in either case without
liability for interest thereon. Such distribution may be made upon an averaged
or other practicable basis without regard to any distinctions among Holders on
account of any application of exchange restrictions or otherwise.
If such conversion or distribution generally or with regard to a
particular Holder can be effected only with the approval or license of any
government or agency thereof, the Depositary shall have authority to file such
application for approval or license, if any, as it may deem appropriate. If at
any time the Depositary shall determine that in its judgment the conversion of
any Foreign Currency and the transfer and distribution of proceeds of such
conversion received by the Depositary is not practical or lawful, or if any
approval or license of any governmental authority or agency thereof that is
required for such conversion, transfer and distribution is denied or, in the
opinion of the Depositary, not obtainable at a reasonable cost or within a
reasonable period, the Depositary may, in its discretion, (i) make such
conversion and distribution in Dollars to the Holders for whom such conversion,
transfer and distribution is lawful and practicable, (ii) distribute the Foreign
Currency (or an appropriate document evidencing the right to receive such
Foreign Currency) to Holders for whom this is lawful and practicable or (iii)
hold (or cause the Custodian to hold) such Foreign Currency (without liability
for interest thereon) for the respective accounts of the Holders entitled to
receive the same.
Section 4.9 Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Eligible Securities, rights, or other entitlement
distribution), or whenever for any reason the Depositary causes a change in the
number of Deposited Securities that are represented by each American Depositary
Share, or whenever the Depositary shall receive notice of any meeting, or
solicitation of consents or of proxies, of holders of Deposited Securities, or
whenever the Depositary shall find it necessary or convenient in connection with
the giving of any notice, solicitation of any consent or any other matter, the
Depositary shall fix a record date (the "ADS Record Date") for the determination
of the Holders of Receipts who shall be entitled to receive such distribution,
to give instructions for the exercise of voting rights at any such meeting, to
give or withhold such consent, to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Deposited Securities represented by each American Depositary
Share. The Depositary shall establish the ADS Record Date as closely as possible
to the applicable record date for the Deposited Securities (if any) set by the
Company in the Republic of China. Subject to applicable law and the provisions
of Section 4.1 through 4.8 and to the other terms and conditions of this Deposit
Agreement, only the Holders of Receipts at the close of business in New York on
such ADS Record Date shall be entitled to receive such
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distribution, to give such voting instructions, to receive such notice or
solicitation, or otherwise take action. The Depositary shall promptly notify the
New York Stock Exchange, Inc. of any action to fix an ADS Record Date or to
close the transfer books for the ADSs.
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Section 4.10 Voting of Deposited Securities.
(a) Voting by Shareholders. The ROC Company Law and the
Articles of Incorporation of the Company, in each case, as in effect on the date
hereof, provide that: (i) a holder of Shares (including holders of interests in
any Certificate of Payment evidencing the irrevocable right to receive Shares)
is entitled to one vote for each Share held, except that the number of votes of
a holder of more than 3% of the total outstanding Shares is discounted by the
Company by a factor of 1% of that portion of the Shares held in excess of 3%
(e.g., a holder of 10% of the total outstanding Shares would be permitted to
exercise voting rights only with respect of a 9.93% of such Shares), (ii) the
election of directors and supervisors takes place by means of cumulative voting
and (iii) a shareholder must, as to all matters subject to a vote of
shareholders (other than the election of directors and supervisors), exercise
the voting rights for all Shares held by such shareholder in the same manner
(e.g., a holder of 1,000 Shares cannot split his/her votes but must vote all
1,000 Shares in the same manner except in the event or cumulative voting for an
election of directors and supervisors). The voting rights attaching to the
Deposited Securities must be exercised by, or on behalf of, the Depositary, as
representative of the Holders, collectively in the same manner, except in the
case of an election of directors and supervisors, which shall be on a cumulative
basis. Deposited Securities which have been withdrawn from the ADR Facilities
and timely transferred on the Company's register of shareholders to a person
other than the Depositary may be voted by the registered holder(s) thereof
directly, subject, in each case, to the limitations of ROC Law and the Articles
of Incorporation of the Company. Holders may not receive sufficient advance
notice of shareholders' meetings to enable them to timely withdraw the Deposited
Securities and vote at such meetings and may not be able to re-deposit the
withdrawn securities under the terms of the Deposit Agreement.
(b) Voting by ADS Holders. Holders of ADSs have no individual
voting rights with respect to the Deposited Securities represented by their
ADSs. Each Holder shall be deemed, by acceptance of ADSs or acquisition of any
beneficial interest therein, to have authorized and directed the Depositary,
without liability, to appoint the Chairman of the Company (or his/her
designate), as representative of the Depositary, the Custodian or the nominee
who is registered in the ROC as representative of the Holders in respect of the
Deposited Securities (the "Registered Holder"), to vote the Shares or other
Deposited Securities in accordance with the terms hereof.
The Company agrees to timely notify the Depositary of any
proposed shareholders' meeting and to provide to the Depositary in New York, at
least 24 calendar days before any shareholders' meeting, sufficient copies as
the Depositary may reasonably request of English language translations of the
Company's notice of shareholders' meeting and the agenda of the materials to be
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
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Notices, the Depositary shall establish the ADS Record Date (upon the terms of
Section 4.9 hereof) and shall, at the Company's expense and, provided no U.S.
legal prohibitions exist, deliver to Holders as of the applicable ADS Record
Date, (i) the Shareholder Notice, (ii) a depositary notice setting forth the
manner in which Holders of ADSs may instruct the Depositary to cause the
Deposited Securities represented by their ADSs to be voted under the terms of
this Deposit Agreement including, a description of the Management Proxy (as
defined below), together with a form of voting instructions and/or other means
to provide voting instructions (the depositary notice and the related materials
prepared by the Depositary collectively, the "Depositary Notice"). The
Depositary is under no obligation to deliver the Shareholder Notice and the
Depositary Notice to Holders if the Company has failed to provide to the
Depositary in New York the requisite number of Shareholder Notices at least 24
calendar days prior to the date of any shareholders' meeting. If the Depositary
has not delivered the Shareholder Notice or Depositary Notice to Holders, it
will endeavor to cause all Deposited Securities represented by ADRs to be
present at the relevant Shareholders' meeting insofar as practicable and
permitted under applicable law but will not cause the Shares or other Deposited
Securities to be voted; provided, however, that the Depositary may determine, at
its sole discretion, to send such Shareholder Notice and Depositary Notice to
Holders and/or cause the Shares or other Deposited Securities to be voted as it
deems appropriate. There can be no assurance that Holders generally or any
Holder in particular will receive Shareholder Notices and Depositary Notices
with sufficient time to enable the return of voting instructions to the
Depositary in a timely manner.
Notwithstanding anything else contained in this Deposit
Agreement, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Shares or other Deposited Securities if the taking of such action would violate
U.S. laws.
(c) Voting of Deposited Securities Upon ADS Holders'
Instructions. If Holders of ADSs together holding at least 51% of all the ADSs
(including Temporary ADSs) outstanding as of the relevant ADS Record Date shall
instruct the Depositary, prior to the date established for such purpose by the
Depositary, to vote in the same manner in respect of one or more resolutions to
be proposed at a shareholders' meeting (including resolutions for the election
directors and/or supervisors), the Depositary shall notify to the Chairman of
the Company (or his/her designate) and appoint the Chairman of the Company (or
his/her designate) as the representative of the Depositary and the Registered
Holders to attend such shareholders' meeting and vote all Deposited Securities
evidenced by ADSs then outstanding (including Temporary ADSs) in the manner so
instructed by such Holders. If voting instructions are received by the
Depositary on or before the date established by the Depositary for the receipt
of such instructions from any Holder as of the ADS Record Date, which are signed
but without further indication as to voting instructions, the Depositary shall
deem such Holder to have instructed a vote in favor of the items set forth in
such instructions. The Depositary and Custodian shall not have any obligation to
monitor, and shall not incur any liability for, the actions, or the failure to
act, of the Chairman of the Company (or his/her designate) as representative of
the Registered Holder.
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(d) Management Proxy. If, for any reason (other than a failure
by the Company to supply the requisite number of Shareholder Notices to the
Depositary within the requisite time period provided in this Section 4.10, the
Depositary has not, prior to the date established for such purpose by the
Depositary received instructions from Holders together holding at least 51% of
all ADSs (including Temporary ADSs) outstanding at the relevant ADS Record Date,
to vote in the same manner in respect of any resolution (including resolutions
for the election of directors and/or supervisors), then, subject to the
following paragraph, the Holders shall be deemed to have authorized and directed
the Depositary to give a discretionary proxy (a "Management Proxy") to the
Chairman of the Company (or his/her designate) as the representative of the
Registered Holder to attend and vote at such meeting all the Deposited
Securities represented by ADSs then outstanding (including Temporary ADSs) in
his or her discretion. In such circumstances, the Chairman of the Company (or
his/her designate) shall be free to exercise the votes attaching to the
Deposited Securities in any manner he or she wishes, which may not be in the
interests of the Holders.
The Depositary's grant of a Management Proxy in the manner and
circumstances described in the preceding paragraph shall be subject to the
receipt by the Depositary prior to each shareholders' meeting of an opinion of
ROC counsel addressed to, and in form and substance satisfactory to, the
Depositary to the effect that under ROC law (i) the arrangements relating to the
Management Proxy are permissible, and (ii) the Depositary will not be deemed to
be authorized to exercise any discretion when causing the voting in accordance
with this Section 4.10 and will not be subject to any potential liability under
ROC law for losses arising from such voting. In the event the Depositary does
not receive such opinion, the Depositary will not grant the Management Proxy but
will cause the Deposited Securities to be present at the shareholders' meeting
to the extent practicable and permitted by applicable law but will not cause the
Deposited Securities to be voted or the Management Proxy to be granted.
The Depositary shall not, and the Depositary shall ensure that
the Custodian and its nominees do not, vote or attempt to exercise the right to
vote that attaches to the Shares or other Deposited Securities, other than in
accordance with instructions given in accordance with this Section 4.10. The
terms of this Section 4.10 may be amended from time to time in accordance with
the terms of this Deposit Agreement. By continuing to hold ADSs after the
effective time of such amendment all Holders and Beneficial Owners shall be
deemed to have agreed to the terms of this Section 4.10 as so amended.
Section 4.11 Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under this Deposit
Agreement, and the Receipts shall, subject to the provisions of this Deposit
Agreement and applicable law, evidence American Depositary Shares
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representing the right to receive such additional or replacement securities, as
applicable. The Depositary may, with the Company's approval, and shall, if the
Company shall so request, subject to the terms of the Deposit Agreement and
receipt of an opinion of counsel to the Company provided pursuant to Section 5.7
hereof and satisfactory to the Depositary that such distributions are not in
violation of any applicable laws or regulations, execute and deliver additional
Receipts as in the case of a dividend of Eligible Securities, or call for the
surrender of outstanding Receipts to be exchanged for new Receipts, in either
case, as well as in the event of newly deposited Shares, with necessary
modifications to the form of Receipt contained in Exhibit A hereto, specifically
describing such new Deposited Securities or corporate change. The Company agrees
to, jointly with the Depositary, amend the Registration Statement on Form F-6 as
filed with the Commission to permit the issuance of such new form of Receipts.
Notwithstanding the foregoing, in the event that any security so received may
not be lawfully distributed to some or all Holders, the Depositary may, with the
Company's approval, and shall, if the Company requests, subject to receipt of an
opinion of Company's counsel satisfactory to the Depositary that such action is
not in violation of any applicable laws or regulations, sell such securities at
public or private sale, at such place or places and upon such terms as it may
deem proper and may allocate the net proceeds of such sales (net of (a) fees and
charges of, and reasonable expenses incurred by, the Depositary and (b) taxes)
for the account of the Holders otherwise entitled to such securities upon an
averaged or other practicable basis without regard to any distinctions among
such Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such securities available to
Holders in general or to any Holder in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or (iii) any liability
to the purchaser of such securities.
Section 4.12 Available Information. From and after the date hereof, the
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000 and at the Commission's New York City office located at
Seven World Trade Center, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
Section 4.13 Reports. The Depositary shall make available for
inspection by Holders at its Principal Office any reports and communications,
including any proxy soliciting materials, received from the Company which are
both (a) received by the Depositary, the Custodian, or the nominee of either of
them as the holder of the Deposited Securities and (b) made generally available
to the holders of such Deposited Securities by the Company. The Depositary shall
also mail to Holders copies of such reports when furnished by the Company
pursuant to Section 5.6.
Section 4.14 List of Holders. Promptly upon written request by the
Company, the Depositary shall furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares of all Holders.
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Section 4.15 Taxation. The Depositary will, and will instruct the
Custodian to, forward to the Company or its agents such information from its
records as the Company may reasonably request to enable the Company or its
agents to file the necessary tax reports with governmental authorities or
agencies. The Depositary, the Custodian or the Company and its agents may file
such reports as are necessary to reduce or eliminate applicable taxes on
dividends and on other distributions in respect of Deposited Securities under
applicable tax treaties or laws for the Holders and Beneficial Owners. In
accordance with instructions from the Company and to the extent practicable, the
Depositary or the Custodian will take reasonable administrative actions to
obtain tax refunds, reduced withholding of tax at source on dividends and other
benefits under applicable tax treaties or laws with respect to dividends and
other distributions on the Deposited Securities. As a condition to receiving
such benefits, Holders and Beneficial Owners of American Depositary Shares may
be required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to execute
such certificates and to make such representations and warranties, or to provide
any other information or documents, as the Depositary or the Custodian may deem
necessary or proper to fulfill the Depositary's or the Custodian's obligations
under applicable law. The Holders and Beneficial Owners shall indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of any refund of taxes, reduced rate of
withholding at source or other tax benefit obtained.
If the Company (or any of its agents) withholds from any distribution
any amount on account of taxes or governmental charges, or pays any other tax in
respect of such distribution (i.e., stamp duty tax, capital gains or other
similar tax), the Company shall (and shall cause such agent to) remit promptly
to the Depositary information about such taxes or governmental charges withheld
or paid, and, if so requested, the tax receipt (or other proof of payment to the
applicable governmental authority) therefor, in each case, in a form
satisfactory to the Depositary. The Depositary shall, to the extent required by
U.S. law, report to Holders any taxes withheld by it or the Custodian, and, if
such information is provided to it by the Company, any taxes withheld by the
Company. The Depositary and the Custodian shall not be required to provide the
Holders with any evidence of the remittance by the Company (or its agents) of
any taxes withheld, or of the payment of taxes by the Company, except to the
extent the evidence is provided by the Company to the Depositary. Neither the
Depositary nor the Custodian shall be liable for the failure by any Holder or
Beneficial Owner to obtain the benefits of credits on the basis non-U.S. tax
paid against such Holder's or Beneficial Owner's income tax liability.
The Depositary is under no obligation to provide the Holders and
Beneficial Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may be
incurred by Holders and Beneficial Owners on account of their ownership of the
American Depositary Shares, including without limitation, tax consequences
resulting from the Company (or any of its subsidiaries) being treated as a
"Foreign
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Personal Holding Company," or as a "Passive Foreign Investment Company" (in each
case as defined in the U.S. Internal Revenue Code and the regulations issued
thereunder) or otherwise.
ARTICLE V
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
Section 5.1 Maintenance of Office and Transfer Books by the Registrar.
Until termination of this Deposit Agreement in accordance with its terms, the
Registrar shall maintain in the Borough of Manhattan, The City of New York, an
office and facilities for the execution and delivery, registration of issuances,
registration of transfers, combination and split-up of Receipts, the surrender
of Receipts for the purpose of withdrawal of Deposited Securities in accordance
with the provisions of this Deposit Agreement.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
this Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Section 7.8 hereof.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or, with the written
approval of the Company, which approval shall not be unreasonably withheld,
appoint a Registrar or one or more co-registrars for registration of Receipts
and transfers, combinations and split-ups, and to countersign such Receipts in
accordance with any requirements of such exchanges or systems. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by the
Depositary after consultation with the Company or upon the reasonable request of
the Company.
Section 5.2 Exoneration. Neither the Depositary nor the Company shall
be obligated to do or perform any act which is inconsistent with the provisions
of this Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
the Republic of China or any other country, or of any other governmental
authority or regulatory authority or stock exchange, or on account of the
possible criminal or civil penalties or restraint, or by reason of any
provision, present or future of the Articles of Incorporation of the Company
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or any provision of or governing any Deposited Securities, or by reason of any
act of God or war or other circumstances beyond its control (including, without
limitation, nationalization, expropriation, currency restrictions, work
stoppage, strikes, civil unrest, revolutions, rebellions, explosions and
computer failure), (ii) by reason of any exercise of, or failure to exercise,
any discretion provided for in this Deposit Agreement or in the Articles of
Incorporation of the Company or provisions of or governing Deposited Securities,
(iii) for any action or inaction in reliance upon the advice or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for the inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of this Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any consequential or punitive damages for any breach of the terms of this
Deposit Agreement.
The Depositary, its controlling persons, its agents, any Custodian and
the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by any
provision of this Deposit Agreement.
Section 5.3 Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or the Receipts to Holders or Beneficial Owners or other persons,
except that the Company and its agents agree to perform their obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
The Depositary and its agents assume no obligation and shall not be
subject to any liability under this Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in this Deposit
Agreement without negligence or bad faith. The Depositary and the Company
undertake to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants and obligations should
be read into this Deposit Agreement against the Depositary or the Company or
their respective agents.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
reasonably satisfactory to it against all expense (including reasonable fees and
disbursements of counsel) and liability be furnished as often as may be required
(and no
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Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. The Depositary shall not incur any liability for any
failure to determine that any distribution or action may be lawful or reasonably
practicable, for the content of any information submitted to it by the Company
for distribution to the Holders or for any inaccuracy of any translation
thereof, for any investment risk associated with acquiring an interest in the
Deposited Securities, for the validity or worth of the Deposited Securities or
for any tax consequences that may result from the ownership of ADSs, Shares or
Deposited Securities, for the credit-worthiness of any third party, for allowing
any rights to lapse upon the terms of this Deposit Agreement, for the failure or
timeliness of any notice from the Company or for the failure of the Company to
exchange any Certificate of Payment into Shares. The Depositary shall not be
obligated in any way to monitor or enforce the obligations of the Company,
including, without limitation, in respect of any Certificate of Payment, the
conversion of such Certificate of Payment into Shares.
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by written notice of resignation delivered to the Company, such
resignation to be effective on the earlier of (i) the 60th day after delivery
thereof to the Company (whereupon the Depositary shall be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) the appointment by the
Company of a successor depositary and its acceptance of such appointment as
hereinafter provided.
The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the earlier of (i)
the 60th day after delivery thereof to the Depositary (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2 hereof), or
(ii) upon the appointment by the Company of a successor depositary and its
acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall be
required by the Company to execute and deliver to its immediate predecessor and
to the Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed (except as
required by applicable law), shall become fully vested with all the rights,
powers, duties and obligations of its immediate predecessor (other than as
contemplated in Sections 5.8 and 5.9). The immediate predecessor depositary,
upon payment of all sums due it and on the written request of the Company shall,
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in Sections
5.8 and 5.9),
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(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly mail notice of its
appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
Section 5.5 The Custodian. The Depositary has initially appointed
Citibank, N.A., Taipei Branch as Custodian for the purpose of this Deposit
Agreement. The Custodian or its successors in acting hereunder shall be subject
at all times and in all respects to the direction of the Depositary for the
Shares for which the Custodian acts as custodian and shall be responsible solely
to it. If any Custodian resigns or is discharged from its duties hereunder with
respect to any Deposited Securities and no other Custodian has previously been
appointed hereunder, the Depositary shall promptly appoint a substitute
custodian that is organized under the laws of the Republic of China. The
Depositary shall require such resigning or discharged Custodian to deliver the
Deposited Securities held by it, together with all such records maintained by it
as Custodian with respect to such Deposited Securities as the Depositary may
request, to the Custodian designated by the Depositary. Whenever the Depositary
determines, in its discretion, that it is appropriate to do so, it may appoint
an additional custodian with respect to any Deposited Securities, or discharge
the Custodian with respect to any Deposited Securities and appoint a substitute
custodian, which shall thereafter be Custodian hereunder with respect to the
Deposited Securities. Immediately upon any such change, the Depositary shall
give notice thereof in writing to all Holders of Receipts, each other Custodian
and the Company.
Upon the appointment of any successor depositary, any Custodian then
acting hereunder shall, unless otherwise instructed by the Depositary, continue
to be the Custodian of the Deposited Securities without any further act or
writing, and shall be subject to the direction of the successor depositary. The
successor depositary so appointed shall, nevertheless, on the written request of
any Custodian, execute and deliver to such Custodian all such instruments as may
be proper to give to such Custodian full and complete power and authority to act
on the direction of such successor depositary.
Section 5.6 Notices and Reports. On or before the first date on which
the Company gives notice, by publication or otherwise, of any meeting of holders
of Deposited Securities, or of any adjourned meeting of such holders, or of the
taking of any action by such holders other than at a meeting, or of the taking
of any action in respect of any cash or other distributions or the offering of
any rights in respect of Deposited Securities, the Company shall transmit to the
Depositary and the Custodian a copy of the notice thereof in the English
language but otherwise in the form given or to be given to holders of Deposited
Securities. The Company shall also furnish to the Custodian and the Depositary a
summary, in English, of any applicable provisions
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or proposed provisions of the Articles of Incorporation of the Company that may
be relevant or pertain to such notice of meeting or be the subject of a vote
thereat. The Depositary shall arrange, at the request of the Company and at the
Company's expense, for the mailing of copies thereof to all Holders or make such
notices, reports and other communications available to all Holders on a basis
similar to that for holders of Deposited Securities or on such other basis as
the Company may advise the Depositary or as may be required by any applicable
law, regulation or stock exchange requirement. The Company has delivered to the
Depositary and the Custodian a copy of the Company's Articles of Incorporation
along with the provisions of or governing the Deposited Securities, and promptly
upon any amendment thereto or change therein, the Company shall deliver to the
Depositary and the Custodian a copy of such amendment thereto or change therein.
The Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The Depositary will, at the expense of the Company, make available a
copy of any such notices, reports or communications issued by the Company and
delivered to the Depositary for inspection by the Holders of the Receipts
evidencing the American Depositary Shares governed by such provisions at the
Depositary's Principal Office, at the office of the Custodian and at any other
designated transfer office.
Section 5.7 Issuance of Additional Eligible Securities, ADSs, etc. The
Company agrees that in the event it or any of its Affiliates proposes (i) an
issuance, sale or distribution of additional Eligible Securities (ii) an
offering of rights to subscribe for Eligible Securities, (iii) an issuance of
securities convertible into or exchangeable for Eligible Securities, (iv) an
issuance of rights to subscribe for securities convertible into or exchangeable
for Eligible Securities, (v) an elective dividend of cash or Eligible
Securities, (vi) a redemption of Deposited Securities, (vii) a meeting of
holders of Deposited Securities, or solicitation of consents or proxies,
relating to any reclassification of securities, merger or consolidation or
transfer of assets, or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain legal advice and take all steps necessary
to ensure that the application of the proposed transaction to Holders and
Beneficial Owners does not violate the laws and regulations of the Republic of
China and the registration provisions of the Securities Act, or any other
applicable laws (including, without limitation, the Investment Company Act of
1940, as amended, the Exchange Act or the securities laws of the states of the
United States). In support of the foregoing, the Company will, at the request of
the Depositary, furnish to the Depositary (a) a written opinion of U.S. counsel
(reasonably satisfactory to the Depositary) stating whether or not application
of such transaction to Holders and Beneficial Owners (1) requires a registration
statement under the Securities Act to be in effect or (2) is exempt from the
registration requirements of the Securities Act and (b) an opinion of ROC
counsel stating that (1) making the transaction available to Holders and
Beneficial Owners does not violate the laws or regulations of the Republic of
China; provided however, that no such opinion shall be required in the event of
an issuance of Eligible Securities as a bonus, share split or similar event or
(2) all requisite regulatory consents and approvals have been obtained in the
Republic of China. If the filing of a registration statement is required, the
Depositary shall not have any obligation to proceed with the transaction unless
it shall have received evidence
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reasonably satisfactory to it that such registration statement has been declared
effective. If, being so advised by counsel, the Company determines that a
transaction is required to be registered under the Securities Act, the Company
will either (i) register such transaction to the extent necessary, (ii) alter
the terms of the transaction to avoid the registration requirements of the
Securities Act or (iii) direct the Depositary to take specific measures, in each
case as contemplated in this Deposit Agreement, to prevent such transaction from
violating the registration requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any
of its Affiliates will at any time (i) deposit any Eligible Securities, either
upon original issuance or upon a sale of Eligible Securities previously issued
and reacquired by the Company or by any such Affiliate, or (ii) issue additional
Eligible Securities, rights to subscribe for such Eligible Securities,
securities convertible into or exchangeable for Eligible Securities or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the Securities
Act and, if applicable, the Exchange Act or have been registered under the
Securities Act and, if applicable, the Exchange Act (and such registration
statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
Section 5.8 Indemnification. The Depositary agrees to indemnify the
Company and its directors, officers, employees, agents and Affiliates against,
and hold each of them harmless from, any direct loss, liability, tax, charge or
expense of any kind whatsoever (including, but not limited to, the reasonable
fees and expenses of counsel) which may arise out of acts performed or omitted
by the Depositary under the terms hereof due to the negligence or bad faith of
the Depositary.
The Company agrees to indemnify the Depositary, the Custodian and any
of their respective directors, officers, employees, agents and Affiliates
against, and hold each of them harmless from, any direct loss, liability, tax,
charge or expense of any kind whatsoever (including, but not limited to, the
reasonable fees and expenses of counsel) that may arise (a) out of or in
connection with any offer, issuance, sale, resale, transfer, deposit or
withdrawal of Receipts, American Depositary Shares, the Eligible Securities or
Deposited Securities, as the case may be, (b) out of or as a result of any
offering documents in respect thereof or (c) out of acts performed or omitted,
including, but not limited to, any delivery by the Depositary on behalf of the
Company of information regarding the Company in connection with this Deposit
Agreement, the Receipts, the American Depositary Shares, the Eligible
Securities, or any Deposited Securities, in any such case (i) by the Depositary,
the Custodian or any of their respective directors, officers, employees, agents
and Affiliates, except to the extent such loss, liability, tax, charge or
expense is due to the negligence or bad faith of any of them, or (ii) by the
Company or any of its directors, officers, employees, agents and Affiliates
except to the extent
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that such liability or expense arises out of or is based upon an untrue
statement of material fact or omission that is made in reliance upon and in
conformity with information relating to the Depositary or the Custodian, as the
case may be, furnished in writing to the Company by the Depositary or the
Custodian expressly for use in any document relating to the ADSs.
The obligations set forth in this Section shall survive the termination
of this Deposit Agreement and the succession or substitution of any party
hereto.
Any person seeking indemnification hereunder (an "indemnified person")
shall notify the person from whom it is seeking indemnification (the
"indemnifying person") of the commencement of any indemnifiable action or claim
promptly after such indemnified person becomes aware of such commencement
(provided that the failure to make such notification shall not affect such
indemnified person's rights to seek indemnification except to the extent the
indemnifying person is materially prejudiced by such failure) and shall consult
in good faith with the indemnifying person as to the conduct of the defense of
such action or claim that may give rise to an indemnity hereunder, which defense
shall be reasonable in the circumstances. No indemnified person shall compromise
or settle any action or claim that may give rise to an indemnity hereunder
without the consent of the indemnifying person, which consent shall not be
unreasonably withheld.
Section 5.9 Fees and Charges of Depositary. Holders, Beneficial Owners
and persons depositing Eligible Securities or surrendering ADSs for cancellation
and withdrawal of Deposited Securities shall be required to pay to the
Depositary the Depositary's fees and related charges identified as payable by
them respectively in the Fee Schedule attached hereto as Exhibit B. All fees and
charges so payable may, at any time and from time to time, be changed by
agreement between the Depositary and the Company, but, in the case of fees and
charges payable by Holders and Beneficial Owners, only in the manner
contemplated in Section 6.1. The Depositary shall provide, without charge, a
copy of its latest fee schedule to anyone upon request.
The Company agrees to promptly pay to the Depositary such other fees
and charges and to reimburse the Depositary for such reasonable out-of-pocket
expenses as the Depositary and the Company may agree to in writing from time to
time. Responsibility for payment of such charges may at any time and from time
to time be changed by agreement between the Company and the Depositary. Unless
otherwise agreed, the Depositary shall present its statement for such expenses
and fees or charges to the Company once every three months. The charges and
expenses of the Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for those
fees, charges and expenses incurred prior to the effectiveness of such
resignation or removal.
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Section 5.10 Pre-Release Transactions. Subject to the further terms and
provisions of this Section 5.10, the Depositary, its Affiliates and their
agents, on their own behalf, may own and deal in any class of securities of the
Company and its Affiliates and in ADSs. In its capacity as Depositary, the
Depositary shall not lend Deposited Securities or ADSs; provided, however, that,
subject to Republic of China law and regulations, the Depositary may (i) issue
ADSs prior to the receipt of Eligible Securities pursuant to Section 2.3 and
(ii) deliver Deposited Securities upon the receipt of ADSs for cancellation upon
withdrawal of Deposited Securities pursuant to Section 2.7, including ADSs which
were issued under (i) above but for which Eligible Securities may not have been
received (each such transaction a "Pre-Release Transaction"). The Depositary may
receive ADSs in lieu of Eligible Securities under (i) above. Each Pre-Release
Transaction will be (a) subject to a written agreement whereby the person or
entity (the "Applicant") to whom ADSs are to be delivered (w) represents that at
the time of the Pre-Release Transaction the Applicant or its customer owns the
Eligible Securities that are to be delivered by the Applicant under such
Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of such
Eligible Securities in its records and to hold such Eligible Securities in trust
for the Depositary until such Eligible Securities or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Eligible Securities or ADSs,
and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
United States government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days' notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Eligible Securities involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs
and Eligible Securities involved in Pre-Release Transactions with any one person
on a case by case basis as it deems appropriate. The Depositary may retain for
its own account any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not the earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant). Neither Temporary ADSs nor any interest in any Payment Certificate
shall be eligible for Pre-Release Transactions hereunder.
Section 5.11 Restricted Securities Owners. The Company agrees to advise
in writing each of the persons or entities who, to the knowledge of the Company,
holds Restricted Securities that, except as contemplated by Section 2.13 hereof,
such Restricted Securities are ineligible for deposit hereunder and, to the
extent practicable, shall require each of such persons to represent in writing
that such person will not deposit Restricted Securities hereunder.
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ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.1 Amendment/Supplement. The Receipts outstanding at any time,
the provisions of this Deposit Agreement and the form of Receipt attached hereto
and to be issued under the terms hereof may at any time and from time to time be
amended or supplemented by written agreement between the Company and the
Depositary in any respect which they may deem necessary or desirable without the
prior written consent of the Holders or Beneficial Owners. Any amendment or
supplement which shall impose or increase any fees or charges (other than
charges in connection with foreign exchange control regulations, and taxes and
other governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
American Depositary Shares to be registered on Form F-6 under the Securities Act
or (b) the American Depositary Share(s) to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such American Depositary Share(s), to
consent and agree to such amendment or supplement and to be bound by this
Deposit Agreement and the Receipt as amended and supplemented thereby. In no
event shall any amendment or supplement impair the right of the Holder to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable law.
Notwithstanding the foregoing, if any governmental body should adopt new laws,
rules or regulations which would require an amendment or supplement of this
Deposit Agreement to ensure compliance therewith, the Company and the Depositary
may amend or supplement this Deposit Agreement and the Receipts at any time in
accordance with such changed laws, rules or regulations. Such amendment or
supplement to this Deposit Agreement and the Receipts in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for compliance with such
laws, rules or regulations.
Section 6.2 Termination. The Depositary shall, at any time at the
written direction of the Company, terminate this Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 30 days prior to the date fixed in such notice for such termination. If 60
days shall have expired after (i) the Depositary shall have delivered to the
Company a written notice of its election to resign, or (ii) the Company shall
have delivered to the Depositary a written notice of the removal of the
Depositary, and in either case a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.4, the
Depositary may terminate this Deposit Agreement by mailing notice of such
termination
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to the Holders of all Receipts then outstanding at least 30 days prior to the
date fixed for such termination. On and after the date of termination of this
Deposit Agreement, the Holder of a Receipt will, upon surrender of such Receipt
at the Principal Office of the Depositary, upon the payment of the charges of
the Depositary for the surrender of Receipts referred to in Section 2.7 and
subject to the conditions and restrictions set forth therein and subject always
to the restrictions on withdrawal as may be in effect under the laws and
regulations of the Republic of China, and upon payment of any applicable taxes
or governmental charges, be entitled to Delivery, to him or upon his order, of
the amount of Deposited Securities represented by such Receipt. If any Receipts
shall remain outstanding after the date of termination of this Deposit
Agreement, the Registrar thereafter shall discontinue the registration of
transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights as provided in this
Deposit Agreement, and shall continue to deliver Deposited Securities, subject
to the conditions and restrictions set forth in Section 2.7, together with any
dividends or other distributions received with respect thereto and the net
proceeds of the sale of any rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, or charging, as the case may be,
in each case, the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments).
At any time after the expiration of six months from the date of
termination of this Deposit Agreement, the Depositary may sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered, such Holders thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under this Deposit Agreement with respect to
the Receipts, the Deposited Securities and the American Depositary Shares,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of this Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of this Deposit Agreement, the Company shall be discharged from all obligations
under this Deposit Agreement except for its obligations to the Depositary under
Sections 5.8, 5.9 and 7.6 hereof.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Counterparts. This Deposit Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
such counterparts together
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shall constitute one and the same agreement. Copies of this Deposit Agreement
shall be maintained with the Depositary and shall be open to inspection by any
Holder during business hours.
Section 7.2 No Third-Party Beneficiaries. This Deposit Agreement is for
the exclusive benefit of the parties hereto (and their successors) and shall not
be deemed to give any legal or equitable right, remedy or claim whatsoever to
any other person, except to the extent specifically set forth in this Deposit
Agreement. Nothing in this Deposit Agreement shall be deemed to give rise to a
partnership or joint venture among the parties nor establish a fiduciary or
similar relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple banking
relationships with the Company and its Affiliates, (ii) the Depositary and its
Affiliates may be engaged at any time in transactions in which parties adverse
to the Company or the Holders or Beneficial Owners may have interests and (iii)
nothing contained in this Agreement shall (a) preclude the Depositary or any of
its Affiliates from engaging in such transactions or establishing or maintaining
such relationships, (b) obligate the Depositary or any of its Affiliates to
disclose such transactions or relationships or to account for any profit made or
payment received in such transactions or relationships.
Section 7.3 Severability. In case any one or more of the provisions
contained in this Deposit Agreement or in the Receipts should be or become
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein or therein shall in
no way be affected, prejudiced or disturbed thereby.
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to the Deposit Agreement and shall be bound by all of
the terms and conditions thereof and of any Receipt by acceptance thereof of any
beneficial interest therein. Holders and Beneficial Owners of International GDSs
issued under the Original Deposit Agreement as heretofore in effect shall, from
and after the date hereof, have all the rights and be subject to all the
obligations of Holders and Beneficial Owners of ADSs hereunder.
Section 7.5 Notices. Any and all notices to be given to the Company
shall be deemed to have been duly given if personally delivered or sent by mail,
air courier or cable, telex or facsimile transmission, confirmed by letter,
addressed to Advanced Semiconductor Engineering, Inc., 00 Xxxx Xxxxx Xxxx,
Xxxxxx Export Processing Zone, Nantze Kaohsiung, the Republic of China,
Attention: Chairman of the Board of Directors (facsimile number:
011-8867-361-3094), or to any other address which the Company may specify in
writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X. Attention: ADR
Department, or to any other address which the Depositary may specify in writing
to the Company.
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Any and all notices to be given to the Custodian shall be deemed to
have been duly given if personally delivered or sent by mail, air courier or
cable, telex or facsimile transmission, confirmed by letter, addressed to
Citibank, N.A. - Taipei Branch, Citicorp Center, 52 Min Sheng East Road, Section
4, Taipei, the Republic of China or to any other address which the Custodian may
specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission, confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address specified in such request. Notice to Holders shall be deemed to
be notice to Beneficial Owners for all purposes of this Deposit Agreement.
Delivery of a notice sent by mail, air courier or cable, telex or
facsimile transmission shall be deemed to be effective at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case of a
cable, telex or facsimile transmission) is deposited, postage prepaid, in a
post-office letter box or delivered to an air courier service. The Depositary or
the Company may, however, act upon any cable, telex or facsimile transmission
received by it from the other or from any Holder, notwithstanding that such
cable, telex or facsimile transmission shall not subsequently be confirmed by
letter as aforesaid.
Section 7.6 Governing Law and Jurisdiction. This Deposit Agreement and
the Receipts shall be interpreted in accordance with, and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by, the laws
of the State of New York without reference to the principles of choice of law
thereof. Notwithstanding anything contained in this Deposit Agreement, any
Receipt or any present or future provisions of the laws of the State of New
York, the rights of holders of Deposited Securities and the obligations and
duties of the Company in respect of the holders of Deposited Securities, as
such, shall be governed by the laws of the Republic of China (or, if applicable,
such other laws as may govern the Deposited Securities).
Except as set forth in the following paragraph of this Section 7.6, the
Company and the Depositary agree that the federal or state courts in The City of
New York shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or in
connection with this Deposit Agreement and, for such purposes, each irrevocably
submits to the non-exclusive jurisdiction of such courts. The Company hereby
irrevocably designates, appoints and empowers CT Corporation System Inc. (the
"Agent") with offices currently at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
as its authorized agent to receive and accept for and on its behalf, and on
behalf of its properties, assets and revenues, service by mail of any and all
legal process, summons, notices and documents that may be served in any suit,
action or proceeding brought against the Company in any federal or state court
as described in the preceding sentence or in the next paragraph of this Section
7.6. If for any reason
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the Agent shall cease to be available to act as such, the Company agrees to
designate a new agent in New York on the terms and for the purposes of this
Section 7.6 reasonably satisfactory to the Depositary. The Company further
hereby irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
against the Company, by service by mail of a copy thereof upon the Agent
(whether or not the appointment of such Agent shall for any reason prove to be
ineffective or such Agent shall fail to accept or acknowledge such service),
with a copy mailed to the Company by registered or certified air mail, postage
prepaid, to its address provided in Section 7.5 hereof. The Company agrees that
the failure of the Agent to give any notice of such service to it shall not
impair or affect in any way the validity of such service or any judgment
rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner brings
a suit, action or proceeding against (a) the Company, (b) the Depositary in its
capacity as Depositary under this Deposit Agreement or (c) against both the
Company and the Depositary, in any such case, in any state or federal court of
the United States, and the Depositary or the Company have any claim, for
indemnification or otherwise, against each other arising out of the subject
matter of such suit, action or proceeding, then the Company and the Depositary
may pursue such claim against each other in the state or federal court in the
United States in which such suit, action, or proceeding is pending and, for such
purposes, the Company and the Depositary irrevocably submit to the non-exclusive
jurisdiction of such courts. The Company agrees that service of process upon the
Agent in the manner set forth in the preceding paragraph shall be effective
service upon it for any suit, action or proceeding brought against it as
described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court as
provided in this Section 7.6, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of immunity
from legal action, suit or proceeding, from set off or counterclaim, from the
jurisdiction of any court, from service of process, from attachment upon or
prior to judgment, from attachment in aid of execution or judgment, from
execution of judgment, or from any other legal process or proceeding for the
giving of any relief or for the enforcement of any judgment, and consents to
such relief and enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of, or in
connection with, the Deposit Agreement, any Receipt or the Deposited Securities.
No disclaimer of liability under the Securities Act is intended by any
provision of the Deposit Agreement. The provisions of this Section 7.6 shall
survive any termination of this Deposit Agreement, in whole or in part.
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Section 7.7 Assignment. Subject to the provisions of Section 5.4
hereof, this Deposit Agreement may not be assigned by either the Company or the
Depositary.
Section 7.8 Compliance with U.S. Securities Laws. Notwithstanding
anything in this Deposit Agreement to the contrary, the withdrawal or delivery
of Deposited Securities will not be suspended by the Company or the Depositary
except as would be permitted by Instruction I.A.(1) of the General Instructions
to Form F-6 Registration Statement, as amended from time to time, under the
Securities Act.
Section 7.9 Titles and References. All references in this Deposit
Agreement to exhibits, articles, sections, subsections, and other subdivisions
refer to the exhibits, articles, sections, subsections and other subdivisions of
this Deposit Agreement unless expressly provided otherwise. The words "this
Deposit Agreement", "herein", "hereof", "hereby", "hereunder", and words of
similar import refer to the Deposit Agreement as a whole as in effect between
the Company, the Depositary and the Holders and Beneficial Owners of ADSs and
not to any particular subdivision unless expressly so limited. Pronouns in
masculine, feminine and neuter gender shall be construed to include any other
gender, and words in the singular form shall be construed to include the plural
and vice versa unless the context otherwise requires. Titles to sections of this
Deposit Agreement are included for convenience only and shall be disregarded in
construing the language contained in this Deposit Agreement. References to
applicable laws and regulations shall refer to the applicable laws and
regulations in effect at the relevant time of determination, unless otherwise
required by such laws or regulations.
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54
IN WITNESS WHEREOF, ADVANCED SEMICONDUCTOR ENGINEERING, INC. and
CITIBANK, N.A. have duly executed this Deposit Agreement as of the day and year
first above set forth and all Holders and Beneficial Owners shall become parties
hereto upon acceptance by them of American Depositary Shares evidenced by
Receipts issued in accordance with the terms hereof, or upon acquisition of any
beneficial interest therein.
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
By:_______________________________
Name:
Title:
CITIBANK, N.A.
By:_______________________________
Name:
Title:
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EXHIBIT A
[FORM OF RECEIPT]
Number _____________ CUSIP NUMBER: _______
[American Depositary Shares (each
American Depositary Share representing
[FIVE (5)] Fully Paid common shares, each
having a par value of NT$10.00 per
share)]
[Temporary American Depositary Shares
(each Temporary American Depositary Share
representing an undivided interest if a
global certificate of payment, each
interest representing the irrevocable
right to receive [five (5)] common
shares, each having a par value of
NT$10.00 per share)]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
[DEPOSITED [COMMON SHARES]
[INTERESTS IN THE DEPOSITED CERTIFICATE OF PAYMENT
of
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
(Incorporated under the laws of The Republic of China)
CITIBANK, N.A., a national banking association organized and existing
under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter
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"ADS"), representing deposited [COMMON SHARES] [INTERESTS IN A GLOBAL
CERTIFICATE OF PAYMENT REPRESENTING THE IRREVOCABLE RIGHT TO RECEIVE COMMON
SHARES], par value NT$10.00 per share, including evidence of rights to receive
such [COMMON SHARES (THE "SHARES")] [INTERESTS IN THE CERTIFICATE OF PAYMENT
(THE "CERTIFICATE OF PAYMENT)] (such [SHARES][CERTIFICATE OF PAYMENT] are
hereafter called "Eligible Securities") of Advanced Semiconductor Engineering,
Inc., a corporation incorporated under the laws of The Republic of China (the
"Company"). As of the date of the Deposit Agreement (as hereinafter defined),
each ADS represents [FIVE (5)][AN INTEREST IN A GLOBAL CERTIFICATE OF PAYMENT,
EACH INTEREST REPRESENTING THE IRREVOCABLE RIGHT TO RECEIVE FIVE (5) SHARES]
deposited under the Deposit Agreement with the Custodian, which at the date of
execution of the Deposit Agreement is Citibank, N.A., Taipei Branch (the
"Custodian"). The ratio of American Depositary Shares to Eligible Securities is
subject to amendment as provided in Article IV of the Deposit Agreement. The
Depositary's Principal Office is located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
(1) The Deposit Agreement. This American Depositary Receipt is one of
an issue of American Depositary Receipts ("Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Deposit Agreement, dated
as of [DATE], 2000 (as amended from time to time, the "Deposit Agreement"), by
and among the Company, the Depositary, and all Holders and Beneficial Owners
from time to time of American Depositary Shares ("ADSs") evidenced by Receipts
issued thereunder, each of whom by accepting an ADS (or an interest therein)
agrees to become a party thereto and becomes bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights and obligations
of Holders and Beneficial Owners of Receipts and the rights and duties of the
Depositary in respect of the Eligible Securities deposited thereunder and any
and all other securities, property and cash from time to time received in
respect of such Eligible Securities and held thereunder (such Eligible
Securities, securities, property and cash are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Principal
Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Incorporation of the Company (as in effect on the date of the signing of the
Deposit Agreement) and are qualified by and subject to the detailed provisions
of the Deposit Agreement and the Articles of Incorporation, to which reference
is hereby made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through
DTC must rely on the procedures of DTC and the DTC Participants to exercise and
be entitled to any rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal of Deposited Securities.
(a) ROC Requirements. The Depositary and the Company have been advised
that under ROC law, as in effect as of the date hereof, a Holder wishing to
withdraw Deposited Securities from the ADR facility is required to appoint an
eligible agent in the Republic of China to open a
A-2
57
securities trading account with a local brokerage firm after receiving an
approval from the TSE and a bank account (the securities trading account and the
bank account, collectively, the "Accounts"), to pay ROC taxes, remit funds,
exercise stockholders' rights and perform such other functions as may be
designated by such withdrawing Holder. In addition, such withdrawing Holder is
also required to appoint a custodian bank to hold the securities in safekeeping,
make confirmations and settle trades and report all relevant information.
Without making such appointment and the opening of such Accounts, the
withdrawing Holder would be unable to hold or subsequently sell the Deposited
Securities withdrawn from the ADR Facilities on the TSE or otherwise. The laws
of the Republic of China applicable to the withdrawal of Deposited Securities
may change from time to time. There can be no assurance that current law will
remain in effect or that future changes of Republic of China law will not
adversely affect the ability of Holders to withdraw Deposited Securities
hereunder.
(b) Sale of Deposited Securities. Upon surrender of Receipts
at the Principal Office and upon payment of any fees, reasonable expenses, taxes
or other governmental charges as provided hereunder, subject to the terms of
this Deposit Agreement and the Company's Articles of Incorporation, and the
transfer restrictions applicable to the Deposited Securities, if any, Holders
may request that the Deposited Securities represented by such Holders' Receipts
be sold on such Holder's behalf. Any Holder requesting a sale of Deposited
Securities may be required by the Depositary to deliver, or cause to be
delivered, to the Depositary a written order requesting the Depositary to sell,
or cause to be sold, such Deposited Securities. Any such sale of Deposited
Securities will be conducted in accordance with applicable ROC law through a
securities company in the ROC on the TSE or in such other manner as is or may be
permitted under applicable ROC law. Any such sale of Deposited Securities will
be at the expense and risk of the Holder requesting such sale. Any Holder
requesting the Depositary to sell the Deposited Securities represented by such
Holder's ADSs may be required to enter into a separate agreement to cover the
terms of the sale of such Deposited Securities.
Upon receipt of any proceeds form any such sale, the Depositary shall,
subject to any restrictions imposed by ROC law and regulations, and as provided
hereunder and under the Deposit Agreement, convert or cause to be converted any
such proceeds into U.S. dollars and distribute any such proceeds to the Holders
entitled thereto after deduction or payment of any fees, reasonable expenses,
taxes or governmental charges (including, without limitation, any ROC and U.S.
taxes) incurred in connection with such sale, as provided under the Deposit
Agreement. Any such sale may be subject to ROC taxation on capital gains, if
any, and will be subject to a securities transaction tax in the ROC. The ROC
does not, as of the date hereof, impose tax on capital gains arising from ROC
securities transactions, but there can be no assurance that a capital gains tax
on ROC securities transactions will not be imposed in the future or as to the
manner in which any ROC capital gains tax in respect of a sale of Deposited
Securities would be imposed or calculated.
(c) Withdrawal of Deposited Securities. The Holder of ADSs
shall be entitled to Delivery (at the Custodian's designated office) of the
Deposited Securities at the time represented
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58
by the ADS(s) upon satisfaction of each of the following conditions: (i) the
Holder (or a duly authorized attorney of the Holder) has duly Delivered ADSs to
the Depositary at its Principal Office (and if applicable, the Receipts
evidencing such ADSs) for the purpose of withdrawal of the Deposited Securities
represented thereby, (ii) if so required by the Depositary, the Receipts
Delivered to the Depositary for such purpose have been properly endorsed in
blank or are accompanied by proper instruments of transfer in blank (including
signature guarantees in accordance with standard securities industry practice),
(iii) if so required by the Depositary, the Holder of the ADSs has executed and
delivered to the Depositary a written order directing the Depositary to cause
the Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, (iv) the Holder has delivered
to the Depositary the certification contemplated in Exhibit C to the Deposit
Agreement, duly completed by or on behalf of the Beneficial Owner(s) of the ADSs
surrendered for withdrawal (unless the Depositary is otherwise instructed by the
Company), and (v) all applicable fees and charges of, and reasonable expenses
incurred by, the Depositary and all applicable taxes and governmental charges
(as are set forth in Section 5.9 of, and Exhibit B to, the Deposit Agreement)
have been paid, subject, however, in each case, to the terms and conditions of
the Receipts evidencing the surrendered ADSs, of the Deposit Agreement, of the
Company's Articles of Incorporation and of any applicable laws and regulations
of the Republic of China and the United States and the rules of the Taiwan
Securities Central Depository, and to any provisions of or governing the
Deposited Securities, in each case as in effect at the time thereof.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipts evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so canceled together with any certificate or
other document of title for the Deposited Securities, or evidence of the
electronic transfer thereof (if available), as the case may be, to or upon the
written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of the Receipts evidencing the ADSs so
canceled, of the Articles of Incorporation of the Company, of applicable laws
and regulations of the Republic of China and of the United States and of the
rules of the Taiwan Securities Central Depositary, and to the terms and
conditions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than a whole number of Eligible Securities. In the case of the Delivery to it of
ADSs representing a number other than a whole number of Eligible Securities, the
Depositary shall cause ownership of the appropriate whole number of Eligible
Securities to be Delivered in accordance with the terms hereof, and shall, at
the discretion of the Depositary, either (i) return to the person surrendering
such ADSs the number of ADSs representing any remaining fractional Eligible
Security, or (ii) sell or cause to be sold the fractional Eligible Security
represented by the ADS(s) so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses
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59
incurred by, the Depositary and (b) taxes withheld) to the person surrendering
the ADSs. In addition, trading restrictions on the TSE may result in the price
per Eligible Security or on any lot of any type of Eligible Security other than
an integral multiple of 1,000 Eligible Securities being lower than the price of
Eligible Securities in lots of integral multiples of 1,000 Eligible Securities.
Notwithstanding anything else contained in any Receipt or the Deposit
Agreement, the Depositary may make delivery at the Principal Office of the
Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds
from the sale of any distributions of Securities or rights, which are at the
time held by the Depositary in respect of the Deposited Securities represented
by the ADSs surrendered for cancellation and withdrawal. At the request, risk
and expense of any Holder so surrendering ADSs, and for the account of such
Holder, the Depositary shall direct the Custodian to forward (to the extent
permitted by law) any cash or other property (other than securities) held by the
Custodian in respect of the Deposited Securities represented by such ADSs to the
Depositary for delivery at the Principal Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of Receipts. The Registrar shall
promptly register the transfer of this Receipt (and of the ADSs represented
thereby) on the transfer books maintained for such purpose and the Depositary
shall promptly cancel this Receipt and execute new Receipts evidencing the same
aggregate number and type of ADSs as those evidenced by this Receipt when
canceled, shall cause the Registrar to countersign such new Receipts, and shall
promptly Deliver such new Receipts to or upon the order of the person entitled
thereto, if each of the following conditions has been satisfied: (i) this
Receipt has been duly Delivered by the Holder (or by a duly authorized attorney
of the Holder) to the Depositary at its Principal Office for the purpose of
effecting a transfer thereof, (ii) this Receipt has been properly endorsed or is
accompanied by proper instruments of transfer (including signature guarantees in
accordance with standard securities industry practice), (iii) this Receipt has
been duly stamped (if required by the laws of the State of New York or of the
United States), and (iv) all applicable fees and charges of, and reasonable
expenses incurred by, the Depositary and all applicable taxes and governmental
charges (as are set forth in Section 5.9 of, and Exhibit B to, the Deposit
Agreement) have been paid, subject, however, in each case, to the terms and
conditions of this Receipt, of the Deposit Agreement and of applicable law, in
each case as in effect at the time thereof.
The Registrar shall register the split-up or combination of this
Receipt (and of the ADSs represented hereby) on the books maintained for such
purpose and the Depositary shall cancel this Receipt and execute new Receipts
for the number of ADSs requested, but in the aggregate not exceeding the number
of the same type of ADSs evidenced by this Receipt (when canceled), shall cause
the Registrar to countersign such new Receipts, and shall Deliver such new
Receipts to or upon the order of the Holder thereof, if each of the following
conditions has been satisfied: (i) this Receipt has been duly Delivered by the
Holder (or by a duly authorized attorney of the
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60
Holder) to the Depositary at its Principal Office for the purpose of effecting a
split-up or combination hereof, and (ii) all applicable fees and charges of, and
reasonable expenses incurred by, the Depositary and all applicable taxes and
government charges (as are set forth in Section 5.9 of, and Exhibit B to, the
Deposit Agreement) have been paid, subject, however, in each case, to the terms
and conditions of this Receipt, of the Deposit Agreement and of applicable law,
in each case as in effect at the time thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt, the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Eligible Securities or
presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charges and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with respect to
Eligible Securities being deposited or withdrawn) and payment of any applicable
fees and charges of the Depositary as provided in the Deposit Agreement and in
this Receipt, (ii) the production of proof satisfactory to it as to the identity
and genuineness of any signature or any other matters contemplated in the
Deposit Agreement, and (iii) compliance with (A) any laws or governmental
regulations relating to the execution and delivery of Receipts or ADSs or to the
withdrawal of Deposited Securities and (B) such reasonable regulations as the
Depositary or the Company may establish consistent with the provisions of this
Receipt and the Deposit Agreement and applicable law.
The issuance of ADSs against deposits of Eligible Securities generally
or against deposits of particular Eligible Securities may be suspended, or the
deposit of particular Eligible Securities may be refused, or the registration of
transfer of Receipts in particular instances may be refused, or the registration
of transfer of outstanding Receipts generally may be suspended, during any
period when the transfer books of the Company, the Depositary, a Registrar or
the Eligible Securities Registrar are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange upon which the
Eligible Securities or ADSs are listed, or under any provision of the Deposit
Agreement or this Receipt, or under any provision of, or governing, the
Deposited Securities, or because of a meeting of shareholders of the Company or
for any other reason, subject in all cases to Article (24) hereof.
Notwithstanding any provision of the Deposit Agreement or this Receipt to the
contrary, Holders are entitled to surrender outstanding ADSs to withdraw the
Deposited Securities at any time subject only to (i) Temporary delays caused by
closing the transfer books of the Depositary or the Company or the deposit of
Eligible Securities in connection with voting at a shareholders' meeting or the
payment of dividends, (ii) the payment of fees, taxes and similar charges, (iii)
compliance with any U.S. or foreign laws or governmental regulations relating to
the Receipts or to the withdrawal of the Deposited Securities, and (iv) other
circumstances specifically contemplated by Section I.A.(l) of the General
Instructions to Form F-6 (as such General Instructions may be amended from time
to time).
A-6
61
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to applicable U.S. and Republic of China laws or regulations,
the rules and requirements of the TSE, and of any stock exchange on which
Eligible Securities or ADSs are, or will be, registered, traded or listed, or
the Articles of Incorporation of the Company, which are made to provide
information, inter alia, as to the capacity in which such Holder or Beneficial
Owner owns ADSs (and Eligible Securities or Deposited Securities, as the case
may be) and regarding the identity of any other person(s) interested in such
ADSs and the nature of such interest and various other matters, whether or not
they are Holders and/or Beneficial Owners at the time of such request.
(6) Ownership Restrictions. Notwithstanding any provision of this
Receipt or of the Deposit Agreement, the Company may restrict transfers of the
Shares, Eligible Securities or securities convertible into Shares where the
Company informs the Depositary that such transfer might result in ownership of
Shares exceeding limits imposed by applicable law, the SFC, the TSE or Articles
of Incorporation of the Company. The Company may also restrict, in such manner
as it deems appropriate, transfers of ADSs where such transfer may result in the
total number of Shares, Deposited Securities or securities convertible into
Shares represented by the ADSs owned by a single Holder or Beneficial Owner to
exceed any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including but not limited to, the imposition of
restrictions on the transfer of ADSs, the removal or limitation of voting rights
or the mandatory sale or disposition on behalf of a Holder or Beneficial Owner
of the Deposited Securities represented by the ADSs held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Incorporation of
the Company.
(7) Liability of Holder for Taxes and Other Charges. If any tax or
other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Receipt or any Deposited Securities or ADSs, such
tax or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or Depositary may
withhold or deduct from any distributions made in respect of Deposited
Securities and may sell for the account of a Holder and/or Beneficial Owner any
or all of the Deposited Securities and apply such distributions and sale
proceeds in payment of such taxes (including applicable interest and penalties)
or charges, the Holder and the Beneficial Owner hereof remaining liable for any
deficiency. The Custodian may refuse the deposit of Eligible Securities and the
Depositary may refuse to issue ADSs, to deliver ADRs, register the transfer,
split-up or combination of ADRs and (subject to Article (24) hereof) the
withdrawal of Deposited Securities until payment in full of such tax, charge,
penalty or interest is received. Every Holder and Beneficial Owner agrees to
indemnify the Depositary, the Company, the Custodian, and any of their agents,
employees and Affiliates for, and hold each of then harmless from, any claims
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with respect to taxes (including applicable interest and penalties thereon)
arising from any tax benefit obtained for such Holder and/or Beneficial Owner.
(8) Representations and Warranties of Depositors. Each person
depositing Eligible Securities under the Deposit Agreement shall be deemed
thereby to represent and warrant that (i) such Eligible Securities and the
certificates therefor are duly authorized, validly issued, fully paid,
non-assessable and legally obtained by such person, (ii) all preemptive (and
similar) rights, if any, with respect to such Eligible Securities have been
validly waived or exercised, (iii) the person making such deposit is duly
authorized so to do, (iv) the Eligible Securities presented for deposit are free
and clear of any lien, encumbrance, security interest, charge, mortgage or
adverse claim and are not, and the ADSs issuable upon such deposit will not be,
Restricted Securities, and (v) the Eligible Securities presented for deposit
have not been stripped of any rights or entitlements. Such representations and
warranties shall survive the deposit and withdrawal of Eligible Securities, the
issuance and cancellation of ADSs in respect thereof and the transfer of such
ADSs.
If any such representations or warranties are false in any way, the
Company and Depositary shall be authorized, at the cost and expense of the
person depositing Eligible Securities, to take any and all actions necessary to
correct the consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Eligible Securities for deposit, and any Holder and any Beneficial
Owner may be required, and every Holder and Beneficial Owner agrees, from time
to time to provide to the Depositary and the Custodian such proof of citizenship
or residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control approval, legal or beneficial ownership
of ADSs and Deposited Securities, compliance with applicable laws and the terms
of the Deposit Agreement and the provisions of, or governing, the Deposited
Securities, to execute such certifications and to make such representations and
warranties, and to provide such other information and documentation (or, in the
case of Eligible Securities in registered form presented for deposit, such
information relating to the registration of Eligible Securities on the books of
the Eligible Securities Registrar) as the Depositary or the Custodian may deem
necessary or proper or as the Company may reasonably require by written request
to the Depositary consistent with its obligations under the Deposit Agreement
and this Receipt. The Depositary and the Registrar, as applicable, may, and at
the reasonable written request of the Company shall, withhold the execution or
delivery or registration of transfer of any Receipt or the distribution or sale
of any dividend or other distribution of rights or of the proceeds thereof or,
to the extent not limited by Article (24) hereof, the delivery of any Deposited
Securities, or may refuse to adjust its records, until such proof or other
information is filed or such certificates are executed, or such representations
are made or such information and documentation are provided, in each case to the
Depositary's, the Registrar's and the Company's satisfaction.
(10) Charges of Depositary. The Depositary shall charge the following
fees for the services performed under the terms of the Deposit Agreement:
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(i) to any person to whom ADSs are issued upon the
deposit of Eligible Securities, a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or portion thereof) so
issued under the terms of the Deposit Agreement
(excluding issuances pursuant to paragraphs (iii) and
(iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in
excess of U.S. $ 5.00 per 100 ADSs (or portion
thereof) so surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S. $
2.00 per 100 ADSs (or portion thereof) held for the
distribution of cash proceeds (i.e., upon the sale of
unexercised rights and other entitlements); no fee
shall be payable for the distribution of cash
dividends or the distribution of Eligible Securities
pursuant to stock dividends or other free
distributions of Eligible Securities as long as such
fees are prohibited by the exchange upon which the
ADSs are listed; and
(iv) to any Holder of ADRs, a fee not in excess of U.S. $
5.00 per 100 ADSs (or portion thereof) issued
pursuant to stock dividends or other free stock
distributions or upon the exercise of rights.
In addition, Holders, Beneficial Owners, person depositing Eligible
Securities for deposit and persons surrendering ADSs for cancellation and
withdrawal of Deposited Securities will be required to pay the following
charges:
(i) taxes (including applicable interest and penalties)
and other governmental charges;
(ii) such registration fees as may from time to time be in
effect for the registration of Deposited Securities
on the share register and applicable to transfers of
Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the
making of deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and
delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of the person
depositing or withdrawing Deposited Securities or
Holders and Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary
in the conversion of foreign currency;
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(v) such fees and expenses as are incurred by the
Depositary in connection with compliance with
exchange control regulations and other regulatory
requirements applicable to Eligible Securities,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable upon the same terms as a certificated security under the laws of
the State of New York, provided that the Receipt has been properly endorsed or
is accompanied by proper instruments of transfer. Notwithstanding any notice to
the contrary, the Depositary and the Company may deem and treat the Holder of
this Receipt (that is, the person in whose name this Receipt is registered on
the books of the Depositary) as the absolute owner thereof for all purposes.
Neither the Depositary nor the Company shall have any obligation nor be subject
to any liability under the Deposit Agreement or this Receipt to any holder of
this Receipt or any Beneficial Owner unless such holder is the Holder of this
Receipt registered on the books of the Depositary or, in the case of a
Beneficial Owner, such Beneficial Owner or the Beneficial Owner's representative
is the Holder registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of Receipts. Receipts bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such Receipt by the Depositary.
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(13) Available Information; Reports; Inspection of Transfer Books. The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These reports and
documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, 000 Xxxxx Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000 and at the Commission's New York City office located at
Seven World Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The Depositary
shall make available for inspection by Holders at its Principal Office any
reports and communications, including any proxy soliciting materials, received
from the Company which are both (a) received by the Depositary, the Custodian,
or the nominee of either of them as the holder of the Deposited Securities and
(b) made generally available to the holders of such Deposited Securities by the
Company.
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Article (24) hereof.
Dated: CITIBANK, N.A.,
as Depositary
CITIBANK, N.A.
Transfer Agent and Registrar
By:_________________________
Authorized Signatory
By:_______________________
Authorized Signatory
The address of the Principal Office of the Depositary is 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Eligible Securities, etc.
Subject always to the laws and regulations of the Republic of China, whenever
the Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Deposited Securities, rights securities or any
entitlements held in respect of Deposited Securities under the Deposit
Agreement, the Depositary will (i) if at the time of receipt thereof any amounts
received in a Foreign Currency can, in the judgment of the Depositary (upon the
terms of the Deposit Agreement), be converted on a practicable basis into
Dollars transferable to the United States, promptly convert or cause to be
converted such cash dividend, distribution or proceeds into Dollars (upon the
terms of the Deposit Agreement), (ii) if applicable, establish the ADS Record
Date upon the terms described in Article (16) hereof and in Section 4.9 of the
Deposit Agreement, and (iii) will distribute promptly the amount thus received
(net of (a) applicable fees and charges of, and reasonable expenses incurred by,
the Depositary and (b) taxes withheld) to the Holders entitled thereto as of the
ADS Record Date (if applicable) in proportion to the number of ADS representing
such Deposited Securities held as of the ADS Record Date (if applicable). The
Depositary shall distribute only such amount, however, as can be distributed
without attributing to any Holder a fraction of one cent, and any balance not so
distributed shall be held by the Depositary (without liability for interest
thereon) and shall be added to and become part of the next sum received by the
Depositary for distribution to Holders of ADSs then outstanding at the time of
the next distribution. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced accordingly.
Such withheld amounts shall be forwarded by the Company to the relevant
governmental authority.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Eligible Securities, the Company shall or
cause such Eligible Securities to be deposited with the Custodian and
registered, as the case may be, in the name of the Depositary, the Custodian or
their respective nominees. Upon receipt of confirmation of such deposit from the
Custodian, the Depositary shall, subject to and in accordance with the Deposit
Agreement and the laws and regulations of the Republic of China, establish the
ADS Record Date and either (i) the Depositary shall distribute to the Holders as
of the ADS Record Date in proportion to the number of ADSs held as of the ADS
Record Date, additional ADSs (or the applicable series), which represent in
aggregate the number of Eligible Securities received as such dividend, or free
distribution, subject, however, in each case, to the terms of the Deposit
Agreement (including,
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without limitation, the limitations set forth on the face of this Receipt and in
Article II of the Deposit Agreement and (a) the applicable fees and charges of,
and reasonable expenses incurred by, the Depositary and (b) taxes), or (ii) if
additional ADSs are not so distributed, each ADS issued and outstanding after
the ADS Record Date shall, to the extent permissible by law, thenceforth also
represent rights and interest in the additional integral number of Eligible
Securities distributed upon the Deposited Securities represented thereby
(subject, however, in each case, to the laws and regulations of the Republic of
China and net (a) of the applicable fees and charges of, and the reasonable
expenses incurred by, the Depositary, and (b) taxes). In lieu of delivering
fractional ADSs, the Depositary shall sell the number of Eligible Securities or
ADSs, as the case may be, represented by the aggregate of such fractions and
distribute the net proceeds upon the terms set forth in the Deposit Agreement.
In the event that (X) the Depositary determines that any distribution
in property (including Eligible Securities) is subject to any tax or other
governmental charges which the Depositary is obligated to withhold, or (Y) if
the Company in the fulfillment of its obligations under the Deposit Agreement,
has furnished an opinion of U.S. counsel determining that Eligible Securities
must be registered under the Securities Act or other laws in order to be
distributed to Holders (and no such registration statement has been declared
effective) or (Z) the deposit of Eligible Securities is not permitted under the
laws or regulations of the Republic of China, the Depositary may dispose of all
or a portion of such property (including Eligible Securities and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of (a) taxes and fees and (b) charges of, and reasonable expenses incurred by,
the Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes an
elective distribution to be made available to Holders upon the terms described
in the Deposit Agreement, the Company and the Depositary shall determine whether
such distribution is lawful and reasonably practicable. If so, the Depositary
shall, subject to the terms and conditions of the Deposit Agreement, establish
and ADS record date according to Article (16) hereof and establish procedures to
enable the Holder hereof to elect to receive the proposed distribution in cash
or in additional ADSs. If a Holder elects to receive the distribution in cash,
the dividend shall be distributed as in the case of a distribution in cash. If
the Holder hereof elects to receive the distribution in additional ADSs, the
distribution shall be distributed as in the case of a distribution in Eligible
Securities. If such elective distribution is not lawful or not reasonably
practicable, the Depositary shall, to the extent permitted by law, distribute to
Holders, on the basis of the same determination as is made in the Republic of
China in respect of the Deposited Securities for which no election is made,
either (x) cash or (y) additional ADSs representing such additional Eligible
Securities, in each case, upon the terms described in the Deposit Agreement.
Nothing herein or in the Deposit Agreement shall obligate the Depositary to make
available to the Holder hereof a method to receive the elective distribution in
Eligible Securities (rather than
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ADSs). There can be no assurance that the Holder hereof will be given the
opportunity to receive elective distributions on the same terms and conditions
as the holders of Deposited Securities.
Upon timely receipt by the Depositary of a notice indicating that the
Company wishes rights to subscribe for additional Eligible Securities to be made
available to Holders of ADSs, the Depositary upon consultation with the Company,
shall determine, whether it is lawful and reasonably practicable to make such
rights available to the Holders. The Depositary shall make such rights available
to any Holders only if (i) the Company shall have timely requested that such
rights be made available to Holders, (ii) the Depositary shall have received the
documentation contemplated in the Deposit Agreement, and (iii) the Depositary
shall have determined that such distribution of rights is reasonably
practicable. If such conditions are not satisfied, the Depositary shall sell the
rights as described below. In the event all conditions set forth above are
satisfied, the Depositary shall establish an ADS Record Date (upon the terms
described in the Deposit Agreement) and establish procedures (x) to distribute
rights to purchase additional ADSs (by means of warrants or otherwise), (y) to
enable the Holders to exercise the rights (upon payment of the subscription
price and of the applicable (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes), and (z) to deliver ADSs upon the
valid exercise of such rights. Nothing herein or in the Deposit Agreement shall
obligate the Depositary to make available to the Holders a method to exercise
rights to subscribe for Eligible Securities (rather than ADSs). If (i) the
Company does not timely request the Depositary to make the rights available to
Holders or if the Company requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive the documentation required by the
Deposit Agreement or determines it is not reasonably practicable to make the
rights available to Holders, or (iii) any rights made available are not
exercised and appear to be about to lapse, the Depositary shall determine
whether it is lawful and reasonably practicable to sell such rights, in a
riskless principal capacity, at such place and upon such terms (including public
and private sale) as it may deem proper. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of applicable fees and charges
of, and reasonable expenses incurred by, the Depositary and taxes) upon the
terms hereof and of the Deposit Agreement. If the Depositary is unable to make
any rights available to Holders or to arrange for the sale of the rights upon
the terms described above, the Depositary shall allow such rights to lapse. The
Depositary shall not be responsible for (i) any failure to determine that it may
be lawful or feasible to make such rights available to Holders in general or any
Holders in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale or exercise, or (iii) the content of any materials
forwarded to the ADR Holders on behalf of the Company in connection with the
rights distribution.
Notwithstanding anything herein or in the Deposit Agreement to the
contrary, if registration (under the Securities Act or any other applicable law)
of the rights or the securities to which any rights relate may be required in
order for the Company to offer such rights or such securities to Holders and to
sell the securities represented by such rights, the Depositary will not
distribute such rights to the Holders (i) unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect or (ii) unless the Company furnishes the Depositary with
opinions of counsel for the Company in the United
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States and counsel to the Company in any other applicable country in which
rights would be distributed, in each case satisfactory to the Depositary, to the
effect that the offering and sale of such securities to Holders and Beneficial
Owners are exempt from, or do not require registration under, the provisions of
the Securities Act or any other applicable laws. In the event that the Company,
the Depositary or the Custodian shall be required to withhold and does withhold
from any distribution of property (including rights) an amount on account of
taxes or other governmental charges, the amount distributed to the Holders of
ADSs representing such Deposited Securities shall be reduced accordingly. In the
event that the Depositary determines that any distribution in property
(including Eligible Securities and rights to subscribe therefor) is subject to
any tax or other governmental charges which the Depositary is obligated to
withhold, the Depositary may dispose of all or a portion of such property
(including Eligible Securities and rights to subscribe therefor) in such amounts
and in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to exercise rights on the same terms
and conditions as the holders of Eligible Securities or to exercise such rights.
Nothing herein or in the Deposit Agreement shall obligate the Company to file
any registration statement in respect of any rights or Eligible Securities or
other securities to be acquired upon the exercise of such rights.
Upon receipt of a notice indicating that the Company wishes property
other than cash, Eligible Securities or rights to purchase additional Eligible
Securities, to be made to Holders of ADSs, the Depositary shall determine
whether such distribution to Holders is lawful and reasonably practicable. The
Depositary shall not make such distribution unless (i) the Company shall have
requested the Depositary to make such distribution to Holders, (ii) the
Depositary shall have received the documentation contemplated in the Deposit
Agreement, and (iii) the Depositary shall have determined that such distribution
is lawful and reasonably practicable. Upon satisfaction of such conditions, the
Depositary shall distribute the property so received to the Holders of record,
as of the ADS Record Date, in proportion to the number of ADSs held by them
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and reasonable expenses incurred by, the
Depositary, and (ii) net of any taxes withheld. The Depositary may dispose of
all or a portion of the property so distributed and deposited, in such amounts
and in such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the distribution.
If the conditions above are not satisfied, the Depositary shall sell or
cause such property to be sold in a public or private sale, at such place or
places and upon such terms as it may deem proper and shall (i) cause the
proceeds of such sale, if any, to be converted into Dollars and (ii) distribute
the proceeds of such conversion received by the Depositary (net of (a)
applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes) to the Holders upon the terms hereof and of the
Deposit Agreement. If the Depositary is unable to sell such
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property, the Depositary may dispose of such property in any way it deems
reasonably practicable under the circumstances.
(15) Redemption. Subject always to the laws and regulations of the
Republic of China, upon timely receipt of notice from the Company that it
intends to exercise its right of redemption in respect of any of the Deposited
Securities, and a satisfactory opinion of counsel, and upon determining that
such proposed redemption is practicable, the Depositary shall (to the extent
practicable) deliver to each Holder a notice setting forth the Company's
intention to exercise the redemption rights and any other particulars set forth
in the Company's notice to the Depositary. Upon receipt of confirmation that the
redemption has taken place and that funds representing the redemption price have
been received, the Depositary shall convert, transfer, distribute the proceeds
(net of applicable (a) fees and charges of, and reasonable expenses incurred by,
the Depositary, and (b) taxes), retire ADSs and cancel ADRs upon delivery of
such ADSs by Holders thereof upon the terms of the Deposit Agreement. If less
than all outstanding Deposited Securities are redeemed, the ADSs to be retired
will be selected by lot or on a pro rata basis, as may be determined by the
Depositary. The redemption price per ADS shall be the dollar equivalent of
per-Deposited Security amount received by the Depositary upon the redemption of
the Deposited Securities represented by American Depositary Shares (subject to
the terms of the Deposit Agreement and the applicable fees and charges of, and
reasonable expenses incurred by, the Depositary, and taxes) multiplied by the
number of Units or Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive
notice of the fixing of a record date by the Company for the determination of
holders of Deposited Securities entitled to receive any distribution (whether in
cash, Eligible Securities, rights or other distribution), or whenever for any
reason the Depositary causes a change in the number of Deposited Securities that
are represented by each ADS, or whenever the Depositary shall receive notice of
any meeting of, or solicitation of consents or proxies of, holders of Deposited
Securities, or whenever the Depositary shall find it necessary or convenient in
connection with the giving of any notice, or any other matter, the Depositary
shall fix a record date ("ADS Record Date") for the determination of the Holders
of Receipts who shall be entitled to receive such distribution, to give
instructions for the exercise of voting rights at any such meeting, or to give
or withhold such consent, or to receive such notice or solicitation or to
otherwise take action, or to exercise the rights of Holders with respect to such
changed number of Deposited Securities represented by each ADS. Subject to
applicable law and the terms and conditions of this Receipt and the Deposit
Agreement, only the Holders of Receipts at the close of business in New York on
such ADS Record Date shall be entitled to receive such distributions, to give
such instructions, to receive such notice or solicitation, or otherwise take
action.
(17) Voting of Deposited Securities. (a) Voting by Shareholders. The
following is a summary of certain rights of holders of Shares to vote at
shareholders' meetings under ROC Company Law and the Articles of Incorporation
of the Company, in each case, as in effect on the date hereof: (i) a holder of
Shares (including holders of interests in any Certificate of Payment
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evidencing the irrevocable right to receive Shares) is entitled to one vote for
each Share held, except that the number of votes of a holder of more than 3% of
the total outstanding Shares is discounted by the Company by a factor of 1% of
that portion of the Shares held in excess of 3% (e.g., a holder of 10% of the
total outstanding Shares would be permitted to exercise voting rights only with
respect of a 9.93% of such Shares), (ii) the election of directors and
supervisors takes place by means of cumulative voting, and (iii) a shareholder
must, as to all matters subject to a vote of shareholders (other than the
election of directors and supervisors), exercise the voting rights for all
Shares held by such shareholder in the same manner (e.g., a holder of 1,000
Shares cannot split his/her votes but must vote all 1,000 Shares in the same
manner except in the event of cumulative voting for an election of directors and
supervisors). The voting rights attaching to the Deposited Securities must be
exercised by, or on behalf of, the Depositary, as representative of the Holders,
collectively in the same manner, including the election of directors and
supervisors. Deposited Securities which have been withdrawn from the ADR
Facilities and timely transferred on the Company's register of shareholders to a
person other than the Depositary may be voted by the registered holder(s)
thereof directly, subject, in each case, to the limitations of ROC law and the
Articles of Incorporation of the Company. Holders may not receive sufficient
advance notice of shareholders' meetings to enable them to timely withdraw the
Deposited Securities and vote at such meetings and may not be able to re-deposit
the withdrawn securities under the terms of the Deposit Agreement.
(b) Voting by ADS Holders. Holders of ADSs have no individual
voting rights with respect to the Deposited Securities represented by their
ADSs. Each Holder shall be deemed, by acceptance of ADSs or acquisition of any
beneficial interest therein, to have authorized and directed the Depositary,
without liability, to appoint the Chairman of the Company (or his/her
designate), as representative of the Depositary, the Custodian or the nominee
who is registered in the ROC as representative of the Holders in respect of the
Deposited Securities (the "Registered Holder"), to vote the Deposited Securities
in accordance with the terms hereof.
The Company agrees to timely notify the Depositary of any
proposed shareholders' meeting and to timely provide to the Depositary in New
York sufficient copies as the Depositary may reasonably request of English
language translations of the Company's notice of shareholders' meeting and the
agenda of the materials to be voted on (in the form the Company generally makes
available to holders of Eligible Securities in the ROC), including, without
limitation, a list of candidates proposed by the Company for an election of
directors or supervisors (such materials collectively, the "Shareholder
Notice"). As soon as practicable after receipt by the Depositary of the
requisite number of Shareholder Notices, the Depositary shall establish the ADS
Record Date (upon the terms of Article (16) hereof and Section 4.9 of the
Deposit Agreement) and shall, at the Company's expense and provided no U.S.
legal prohibitions exist, deliver to Holders as of the applicable ADS Record
Date, (i) the Shareholder Notice, (ii) a depositary notice setting forth the
manner in which Holders of ADSs may instruct the Depositary to cause the
Deposited Securities represented by their ADSs to be voted under the terms of
this Deposit Agreement including, a description of the Management Proxy (as
defined below),
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together with a form of voting instructions and/or other means to provide voting
instructions (the depositary notice and the related materials prepared by the
Depositary collectively, the "Depositary Notice"). The Depositary is under no
obligation to mail the Shareholder Notice and the Depositary Notice to Holders
if the Company has failed to provide to the Depositary in New York the requisite
number of Shareholder Notices at least 24 calendar days prior to the date of any
shareholders' meeting. If the Depositary has not delivered the Shareholder
Notice or Depositary Notice to Holders, it will endeavor to cause all Deposited
Securities represented by ADRs to be present at the relevant Shareholders'
meeting insofar as practicable and permitted under applicable law but will not
cause the Deposited Securities to be voted; provided, however, that the
Depositary may determine, at its sole discretion, to send such Shareholder
Notice and Depositary Notice to Holders and/or cause the Deposited Securities to
be voted as it deems appropriate. There can be no assurance that Holders
generally or any Holder in particular will receive Shareholder Notices and
Depositary Notices with sufficient time to enable the return of voting
instructions to the Depositary in a timely manner.
Notwithstanding anything else contained in the Deposit
Agreement, the Depositary shall not have any obligation to take any action with
respect to any meeting, or solicitation of consents or proxies, of holders of
Deposited Securities if the taking of such action would violate U.S. laws.
(c) Voting of Deposited Securities Upon ADS Holders'
Instructions. If Holders of ADSs together holding at least 51% of all the ADSs
(including Temporary ADSs) outstanding as of the relevant ADS Record Date shall
instruct the Depositary, prior to the date established for such purpose by the
Depositary, to vote in the same manner in respect of one or more resolutions to
be proposed at a shareholders' meeting (including resolutions for the election
directors and/or supervisors), the Depositary shall notify to the Chairman of
the Company (or his/her designate) and appoint the Chairman of the Company (or
his/her designate) as the representative of the Depositary and the Registered
Holders to attend such shareholders' meeting and vote all Deposited Securities
evidenced by ADSs then outstanding (including Temporary ADSs) in the manner so
instructed by such Holders. If voting instructions are received by the
Depositary on or before the date established by the Depositary for the receipt
of such instructions from any Holder as of the ADS Record Date, which are signed
but without further indication as to voting instructions, the Depositary shall
deem such Holder to have instructed a vote in favor of the items set forth in
such instructions. The Depositary and Custodian shall not have any obligation to
monitor, and shall not incur any liability for, the actions, or the failure to
act, of the Chairman of the Company (or his/her designate) as representative of
the Registered Holder.
(d) Management Proxy. If, for any reason (other than a failure
by the Company to supply the requisite number of Shareholder Notices to the
Depositary within the requisite time period provided in the Deposit Agreement,
the Depositary has not, prior to the date established for such purpose by the
Depositary received instructions from Holders together holding at least 51% of
all ADSs (including Temporary ADSs) outstanding at the relevant ADS Record Date,
to vote in the same manner in respect of any resolution (including resolutions
for the election of directors and/or supervisors), then, subject to the
following paragraph, the Holders
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shall be deemed to have authorized and directed the Depositary to give a
discretionary proxy (a "Management Proxy") to the Chairman of the Company (or
his/her designate) as the representative of the Registered Holder to attend and
vote at such meeting all the Deposited Securities represented by ADSs then
outstanding (including Temporary ADSs) in his or her discretion. In such
circumstances, the Chairman of the Company (or his or her designate) shall be
free to exercise the votes attaching to the Deposited Securities in any manner
he or she wishes, which may not be in the interests of the Holders.
The Depositary's grant of a Management Proxy in the manner and
circumstances described in the preceding paragraph shall be subject to the
receipt by the Depositary prior to each shareholders' meeting of an opinion of
ROC counsel addressed to, and in form and substance satisfactory to, the
Depositary. In the event the Depositary does not receive such opinion, the
Depositary will not grant the Management Proxy but will cause the Deposited
Securities to be present at the shareholders' meeting to the extent practicable
and permitted by applicable law but will not cause the Deposited Securities to
be voted or the Management Proxy to be granted.
The Depositary shall not, and the Depositary shall ensure that
the Custodian and its nominees do not, vote or attempt to exercise the right to
vote that attaches to the Shares or other Deposited Securities, other than in
accordance with instructions given in accordance with Section 4.10 of the
Deposit Agreement. The terms Section 4.10 of the Deposit Agreement may be
amended from time to time in accordance with the terms of this Deposit
Agreement. By continuing to hold ADSs after the effective time of such amendment
all Holders and Beneficial Owners shall be deemed to have agreed to the terms of
the Deposit Agreement as so amended.
(18) Changes Affecting Deposited Securities. Upon any change in nominal
or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional securities. The Depositary may, with the Company's approval, and
shall, if the Company shall so request, subject to the terms of the Deposit
Agreement and receipt of satisfactory documentation contemplated by the Deposit
Agreement, execute and deliver additional Receipts as in the case of a dividend
in Eligible Securities, or call for the surrender of outstanding Receipts to be
exchanged for new Receipts, in either case, as well as in the event of newly
deposited Eligible Securities, with necessary modifications to the form of
Receipt contained herein, specifically describing such new Deposited Securities
or corporate change. Notwithstanding the foregoing, in the event that any
security so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, and shall if the Company requests,
subject to receipt of satisfactory legal documentation contemplated in the
X-00
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Xxxxxxx Xxxxxxxxx, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes) for the account of the Holders
otherwise entitled to such securities and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to the Deposit Agreement. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, the Republic of China or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or by
reason of any provision, present or future of the Articles of Incorporation of
the Company or any provision of or governing any Deposited Securities, or by
reason of any act of God or war or other circumstances beyond its control
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement or in the
Articles of Incorporation of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
information from legal counsel, accountants, any person presenting Eligible
Securities for deposit, any Holder, any Beneficial Owner or authorized
representative thereof, or any other person believed by it in good faith to be
competent to give such advice or information, (iv) for any inability by a Holder
or Beneficial Owner to benefit from any distribution, offering, right or other
benefit which is made available to holders of Deposited Securities but is not,
under the terms of this Deposit Agreement, made available to Holders of ADS or
(v) for any consequential or punitive damages for any breach of the terms of
this Deposit Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request or other document
believed by it to be genuine and to have been signed or presented by the proper
party or parties. No disclaimer of liability under the Securities Act is
intended by any provision of the Deposit Agreement or this Receipt.
(20) Standard of Care. The Company and its agents assume no obligation
and shall not be subject to any liability under this Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except that the
Company and its agents agree to perform their obligations specifically set forth
in this Deposit Agreement without negligence or bad faith. The Depositary and
its agents assume no obligation and shall not be subject to any liability under
this Deposit Agreement or the Receipts to Holders or Beneficial Owners or other
persons, except that
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the Depositary and its agents agree to perform their obligations specifically
set forth in this Deposit Agreement without negligence or bad faith. The
Depositary and the Company undertake to perform such duties and only such duties
as are specifically set forth in the Deposit Agreement, and no implied covenants
and obligations should be read into the Deposit Agreement or this Receipt
against the Depositary or the Company or their respective agents. The Depositary
and its agents shall not be liable for any failure to carry out any instructions
to vote any of the Deposited Securities, or for the manner in which any vote is
cast or the effect of any vote, provided that any such action or omission is in
good faith and in accordance with the terms of this Deposit Agreement. The
Depositary shall not incur any liability for any failure to determine that any
distribution or action may be lawful or reasonably practicable, for the content
of any information submitted to it by the Company for distribution to the
Holders or for any inaccuracy of any translation thereof, for any investment
risk associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of this Deposit Agreement, for the failure or timeliness of any notice
from the Company or for the failure of the Company to exchange any Certificate
of Payment into Shares. The Depositary shall not be obligated in any way to
monitor or enforce the obligations of the Company, including, without
limitation, in respect of any Certificate of Payment, the conversion of such
Certificate of Payment into Shares.
(21) Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary under
the Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company, or (ii) upon the appointment of a successor
depositary and its acceptance of such appointment as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company by written
notice of such removal which notice shall be effective on the earlier of (i) the
60th day after delivery thereof to the Depositary, or (ii) upon the appointment
of a successor depositary and its acceptance of such appointment as provided in
the Deposit Agreement. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its best efforts to appoint a
successor depositary, which shall be a bank or trust company having an office in
the Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its immediate predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed (except as required by
applicable law), shall become fully vested with all the rights, powers, duties
and obligations of its immediate predecessor. The immediate predecessor
depositary, upon payment of all sums due it and on the written request of the
Company, shall (i) execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder (other than as
contemplated in the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such
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successor depositary shall promptly mail notice of its appointment to such
Holders. Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(22) Amendment/Supplement. This Receipt and any provisions of the
Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise materially prejudice any substantial existing right of Holders or
Beneficial Owners, shall not, however, become effective as to outstanding
Receipts until the expiration of 30 days after notice of such amendment or
supplement shall have been given to the Holders of outstanding Receipts. The
parties hereto agree that any amendments or supplements which (i) are reasonably
necessary (as agreed by the Company and the Depositary) in order for (a) the
ADSs to be registered on Form F-6 under the Securities Act or (b) the ADSs to be
traded solely in electronic book-entry form and (ii) do not in either such case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to materially prejudice any substantial rights of Holders or Beneficial
Owners. Every Holder and Beneficial Owner at the time any amendment or
supplement so becomes effective shall be deemed, by continuing to hold such
ADS(s), to consent and agree to such amendment or supplement and to be bound by
the Deposit Agreement as amended or supplemented thereby. In no event shall any
amendment or supplement impair the right of the Holder to surrender such Receipt
and receive therefor the Deposited Securities represented thereby, except in
order to comply with mandatory provisions of applicable law. Notwithstanding the
foregoing, if any governmental body should adopt new laws, rules or regulations
which would require amendment or supplement of the Deposit Agreement to ensure
compliance therewith, the Company and the Depositary may amend or supplement the
Deposit Agreement and this Receipt at any time in accordance with such changed
laws, rules or regulations. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided in herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 30 days
prior to
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the date fixed for such termination. On and after the date of termination of the
Deposit Agreement, the Holder will, upon surrender of such Holders' Receipt(s)
at the Principal Office of the Depositary, upon the payment of the charges of
the Depositary for the surrender of ADSs referred to in Article (10) hereof and
in Exhibit B to the Deposit Agreement and subject to the conditions and
restrictions set forth therein and subject always to the restrictions on
withdrawal as may be in effect under the laws and regulations of the Republic of
China, and upon payment of any applicable taxes or governmental charges, be
entitled to Delivery, to him or upon his order, of the amount of Deposited
Securities represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of the Deposit Agreement, the Registrar thereafter
shall discontinue the registration of transfers of Receipts, and the Depositary
shall suspend the distribution of dividends to the Holders thereof, and shall
not give any further notices or perform any further acts under the Deposit
Agreement, except that the Depositary shall continue to collect dividends and
other distributions pertaining to Deposited Securities, shall sell rights as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case the charges of the
Depositary for the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). At any time after
the expiration of six months from the date of termination of the Deposit
Agreement, the Depositary may sell the Deposited Securities then held hereunder
and may thereafter hold uninvested the net proceeds of any such sale, together
with any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the Holders whose
Receipts have not theretofore been surrendered, such Holders thereupon becoming
general creditors of the Depositary with respect to such proceeds. After making
such sale, the Depositary shall be discharged from all obligations under the
Deposit Agreement with respect to the Receipts, the Deposited Securities and the
ADSs, except to account for such net proceeds and other cash (after deducting,
or charging, as the case may be, in each case the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). Upon the termination
of the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except as set forth in the Deposit Agreement.
(24) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (25) and Section 5.10 of the
Deposit Agreement, the Depositary, its
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Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its capacity as
Depositary, the Depositary shall not lend Deposited Securities or ADSs;
provided, however, that, subject to Republic of China law and regulations, the
Depositary may (i) issue ADSs prior to the receipt of Eligible Securities
pursuant to Section 2.3 of the Deposit Agreement and (ii) deliver Deposited
Securities upon the receipt of ADSs for cancellation upon withdrawal of
Deposited Securities pursuant to Section 2.7 of the Deposit Agreement, including
ADSs which were issued under (i) above but for which Eligible Securities may not
have been received (each such transaction a "Pre-Release Transaction"). The
Depositary may receive ADSs in lieu of Eligible Securities under (i) above. Each
such Pre-Release Transaction will be (a) subject to a written agreement whereby
the person or entity (the "Applicant") to whom ADSs are to be delivered (w)
represents that at the time of the Pre-Release Transaction the Applicant or its
customer owns the Eligible Securities that are to be delivered by the Applicant
under such Pre-Release Transaction, (x) agrees to indicate the Depositary as
owner of such Eligible Securities in its records and to hold such Eligible
Securities in trust for the Depositary until such Eligible Securities or ADSs
are delivered to the Depositary or the Custodian, (y) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Eligible
Securities or ADSs, and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
collateral as the Depositary deems appropriate, (c) terminable by the Depositary
on not more than five (5) business days' notice and (d) subject to such further
indemnities and credit regulations as the Depositary deems appropriate. The
Depositary will normally limit the number of ADSs and Eligible Securities
involved in such Pre-Release Transactions at any one time to thirty percent
(30%) of the ADSs outstanding (without giving effect to ADSs outstanding under
(i) above), provided, however, that the Depositary reserves the right to change
or disregard such limit from time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of ADSs
and Eligible Securities involved in Pre-Release Transactions with any one person
on a case by case basis as it deems appropriate. The Depositary may retain for
its own account any compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not the earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant). Temporary ADSs and interests in any Certificate of Payment shall not
be eligible for Pre-Release Transactions hereunder.
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(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
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LEGENDS
[THE RECEIPTS ISSUED IN RESPECT OF PARTIAL ENTITLEMENT AMERICAN
DEPOSITARY SHARES SHALL BEAR THE FOLLOWING LEGEND ON THE FACE OF THE
RECEIPT: "THIS RECEIPT EVIDENCES AMERICAN DEPOSITARY SHARES
REPRESENTING PARTIAL ENTITLEMENT [COMMON SHARES] [INTERESTS IN THE
CERTIFICATE OF PAYMENT] OF ADVANCED SEMICONDUCTOR ENGINEERING, INC.,
AND AS SUCH DO NOT ENTITLE THE HOLDERS THEREOF TO THE SAME PER-SECURITY
ENTITLEMENT AS OTHER [COMMON SHARES] [INTERESTS IN THE CERTIFICATE OF
PAYMENT] (WHICH ARE "FULL ENTITLEMENT" [COMMON SHARES] [INTERESTS IN
THE CERTIFICATE OF PAYMENT]) ISSUED AND OUTSTANDING AT SUCH TIME. THE
AMERICAN DEPOSITARY SHARES REPRESENTED BY THIS RECEIPT SHALL ENTITLE
HOLDERS TO DISTRIBUTIONS AND ENTITLEMENTS IDENTICAL TO OTHER AMERICAN
DEPOSITARY SHARES WHEN THE [COMMON SHARES] [INTERESTS IN THE
CERTIFICATE OF PAYMENT] REPRESENTED BY SUCH AMERICAN DEPOSITARY SHARES
BECOME "FULL ENTITLEMENT" [COMMON SHARES] [INTERESTS IN THE CERTIFICATE
OF PAYMENT].
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EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
I. DEPOSITARY FEES
The Company, the Holders, the Beneficial Owners and the
persons depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
-------------------------------------------------------------------------------------------------------------------
SERVICE RATE BY WHOM PAID
-------------------------------------------------------------------------------------------------------------------
(1) ISSUANCE OF ADSs UPON UP TO $5.00 PER 100 ADSs (OR PERSON FOR WHOM DEPOSITS ARE
DEPOSIT OF ELIGIBLE FRACTION THEREOF) ISSUED. MADE OR PERSON RECEIVING ADSs.
SECURITIES (EXCLUDING
ISSUANCES AS A RESULT OF
DISTRIBUTIONS DESCRIBED
IN PARAGRAPHS 3(b) AND
(5) BELOW).
-------------------------------------------------------------------------------------------------------------------
(2) DELIVERY OF DEPOSITED UP TO $5.00 PER 100 ADSs (OR PERSON SURRENDERING ADSs OR
SECURITIES, PROPERTY AND FRACTION THEREOF) SURRENDERED. MAKING WITHDRAWAL.
CASH AGAINST SURRENDER OF
ADSs.
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(3) DISTRIBUTION OF (a) CASH NO FEE, SO LONG AS PROHIBITED BY PERSON TO WHOM DISTRIBUTION IS
DIVIDENDS OR (b) ADSs THE EXCHANGE UPON WHICH THE MADE.
PURSUANT TO STOCK ADSs ARE LISTED.
DIVIDENDS (OR OTHER
DISTRIBUTION OF STOCK).
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(4) DISTRIBUTION OF CASH UP TO $2.00 PER 100 ADSs (OR PERSON TO WHOM DISTRIBUTION IS
PROCEEDS (i.e., UPON SALE FRACTION THEREOF) HELD. MADE.
OF RIGHTS OR OTHER
ENTITLEMENTS).
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(5) DISTRIBUTION OF ADSs UP TO $5.00 PER 100 ADSs (OR PERSON TO WHOM DISTRIBUTION IS
PURSUANT TO EXERCISE OF FRACTION THEREOF) ISSUED. MADE.
RIGHTS.
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II. CHARGES
Holders, Beneficial Owners, persons depositing Eligible
Securities for deposit and persons surrendering ADSs for cancellation and for
the purpose of withdrawing Deposited Securities shall be responsible for the
following charges:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) such registration fees as may from time to time be in effect for the
registration of Deposited Securities on the share register and
applicable to transfers of Deposited Securities to or from the name of
the Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(iii) such cable, telex and facsimile transmission and delivery expenses as
are expressly provided in the Deposit Agreement to be at the expense of
the person depositing Eligible Securities or Holders and Beneficial
Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
(v) such fees and expenses as are incurred by the Depositary in connection
with compliance with exchange control regulations and other regulatory
requirements applicable to Eligible Securities, Deposited Securities,
ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities.
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FORM OF CERTIFICATION UPON WITHDRAWAL.
EXHIBIT C
Certification and Agreement of Persons Surrendering
ADSs for the Purpose of Withdrawal
Deposited Securities Pursuant to Section 2.7 of the
Deposit Agreement
Citibank, N.A.
ADR Department
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Advanced Semiconductor Engineering, Inc.
We refer to the Deposit Agreement, dated as of [DATE], 2000 (the
"Deposit Agreement"), among ADVANCED SEMICONDUCTOR ENGINEERING, INC. (the
"Company"), CITIBANK, N.A., as Depositary, and Holders and Beneficial Owners
from time to time of American Depositary Shares (the "ADSs") evidenced by
American Depositary Receipts (the "Receipts") issued thereunder. Capitalized
terms used but not defined herein shall have the meanings given them in the
Deposit Agreement. We are providing the information herein to enable the Company
to comply with its reporting obligations under the laws and regulations of the
Republic of China and understand that the Company will rely upon the information
provided herein for such purpose.
1. We are surrendering ADSs or giving withdrawal instructions through
DTC in accordance with the terms of the Deposit Agreement for the purpose of
withdrawal of the Deposited Securities represented by the ADSs (the "Shares")
pursuant to Section 2.7 of the Deposit Agreement.
2. We certify (or if we are acting for the account of another person,
such person has confirmed to us that it certifies) that:
(PLEASE CHECK THE APPLICABLE BOX IN (a) BELOW AND FILL IN THE
MISSING INFORMATION IN (b) BELOW, AS APPROPRIATE)
[POINTING HAND GRAPHIC]
(a) / / We are (it is) a "Related Person" of the Company (as
defined below).
or
/ / We are (it is) NOT a "Related Person" of the Company (as
defined below).
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84
AND
[POINTING HAND GRAPHIC]
(b)(i) We will own ____________________ Shares of the Company, after
(fill in) cancellation of the ADSs
surrendered hereby (do not
include Shares represented by
ADSs included in (b)(ii)
below);
and
(ii) We will own ____________________ ADSs representing Shares of the
(fill in) Company, after cancellation of
the ADSs surrendered hereby.
3. We certify (or if we are acting for the account of another person,
such person has confirmed to us that it certifies) that:
(i) We are (or the person for the account of which we are acting
is) the Beneficial Owner of the ADSs hereby surrendered to the
Depositary for withdrawal of the Shares represented thereby;
AND
(ii) We hereby certify that the following information is true and
correct:
Name of Beneficial Owner of ADSs:
____________________________________
Address of Beneficial Owner of ADSs:
____________________________________
______________________________________________________________
______________________________________________________________
Nationality of Beneficial Owner of ADSs: ____________________
Number of ADSs surrendered hereby: _________________________
Number of Shares withdrawn hereby: __________________________
Date: _______________________________________________________
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85
4. If we are a broker-dealer, we further certify that we are acting for
the account of our customer and that our customer has confirmed the accuracy of
the representations contained in paragraphs 1 through 3 hereof that are
applicable to it.
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: _____________________________
Name
Title:
___________________________________________________________________
A person or entity is deemed to be a "Related Person" of the Company if the
person or entity is:
(a) (i) a company of which the chairman of the board of
directors or the general manager serves as the
chairman of the board of directors or the chairman of
the Company, or the spouse or member of the immediate
second family of the chairman of the board of
directors or general manager of the Company;
(ii) a non-profit organization of which the funds donated
from the Company exceeds one-third of the non-profit
organization's total funds;
(iii) a director, supervisor or general manager,
vice-general manager, assistant vice-general manager,
or departmental head reporting to the general
manager;
(iv) the spouse of a director, supervisor or general
manager of the Company; or
(v) a member of the immediate or second immediate
families of the Company's chairman of the board of
directors or general manager.
OR
(b) a person or entity that has control or influence over the
Company.
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86
TABLE OF CONTENTS
PAGE
----
ARTICLE I.........................................................................................................2
DEFINITIONS...................................................................................................2
Section 1.1 "Affiliate"...................................................................2
Section 1.2 "American Depositary Share(s)" and "ADS(s)"...................................2
Section 1.3 "ADS Record Date".............................................................3
Section 1.4 "Applicant"...................................................................3
Section 1.5 "Beneficial Owner"............................................................3
Section 1.6 "Business Day"................................................................3
Section 1.8 "Commission"..................................................................3
Section 1.9 "Company".....................................................................3
Section 1.10 "Custodian"...................................................................3
Section 1.11 "Deliver" and "Delivery"......................................................4
Section 1.12 "Deposit Agreement"...........................................................4
Section 1.13 "Depositary"..................................................................4
Section 1.14 "Deposited Securities"........................................................4
Section 1.15 "Dollars" and "$".............................................................4
Section 1.16 "DTC".........................................................................4
Section 1.17 "DTC Participant".............................................................4
Section 1.18 "Eligible Securities".........................................................5
Section 1.19 "Eligible Securities Registrar"...............................................5
Section 1.20 "Exchange Act"................................................................5
Section 1.21 "Foreign Currency"............................................................5
Section 1.22 "Full Entitlement ADS(s)"; "Full Entitlement ADR(s)"
and "Full Entitlement Deposited Securities"...................................5
Section 1.23 "Holder"......................................................................5
Section 1.24 "Initial Deposit".............................................................5
Section 1.25 "International GDSs"..........................................................5
Section 1.26 "NT dollars" and "NT$"........................................................5
Section 1.27 "Offering"....................................................................5
Section 1.28 "Original Deposit Agreement"..................................................6
Section 1.29 "Partial Entitlement ADS(s)"; "Partial Entitlement ADR(s),"
and "Partial Entitlement Deposited Securities"................................6
Section 1.30 "Pre-Release Transaction".....................................................6
Section 1.31 "Principal Office"............................................................6
Section 1.32 "Prospectus"..................................................................6
Section 1.33 "Receipt(s)"; "American Depositary Receipt(s)"
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87
and "ADR(s)"..................................................................6
Section 1.34 "Registrar"...................................................................6
Section 1.35 "Republic of China"; "ROC" and "Taiwan".......................................7
Section 1.36 "Restricted ADRs" and "Restricted ADSs".......................................7
Section 1.37 "Restricted Securities".......................................................7
Section 1.38 "Securities Act"..............................................................7
Section 1.39 "SFC".........................................................................7
Section 1.40 "Shares"......................................................................7
Section 1.41 "Share American Depositary Share(s)" and "Share ADS(s)".......................8
Section 1.42 "Share American Depositary Receipt(s)" and "Share ADR(s)".....................8
Section 1.43 "Taiwan Securities Central Depository"........................................8
Section 1.44 "Taiwan Stock Exchange" and "TSE".............................................8
Section 1.45 "Temporary ADS(s)"............................................................8
Section 1.46 "Temporary ADR(s)"............................................................8
Section 1.47 "United States"...............................................................9
ARTICLE II........................................................................................................9
APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS;
DEPOSIT OF ELIGIBLE SECURITIES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS.........................................................9
Section 2.1 Appointment of Depositary.....................................................9
Section 2.2 Form and Transferability of Receipts..........................................9
(a) Form..................................................................9
(b) Legends..............................................................10
(c) Title................................................................10
(d) Book-Entry Systems...................................................10
Section 2.3 Deposit with Custodian.......................................................11
Section 2.4 Registration and Safekeeping of Deposited Securities.........................13
Section 2.5 Execution and Delivery of Receipts...........................................13
Section 2.6 Transfer, Combination and Split-Up of Receipts...............................14
(a) Transfer.............................................................14
(b) Combination and Split-Up.............................................14
(c) Co-Transfer Agents...................................................15
Section 2.7 Surrender of ADSs and Withdrawal and
Sale of Deposited Securities.................................................15
(a) ROC Requirements........................................................15
(b) Sale of Deposited Securities............................................15
(c) Withdrawal of Deposited Securities......................................16
Section 2.8 Additional Limitations on Execution and Delivery,
Transfer, etc. of Receipts; Suspension of Delivery,
Transfer, etc................................................................17
(a) Additional Requirements..............................................17
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88
(b) Additional Limitations...............................................18
(c) Regulatory Restrictions..............................................18
Section 2.9 Lost Receipts, etc...........................................................18
Section 2.10 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records.......................................................19
Section 2.11 Partial Entitlement ADSs.....................................................19
Section 2.12 Temporary ADSs...............................................................20
Section 2.13 Restricted ADRs and Restricted ADSs..........................................22
ARTICLE III......................................................................................................23
CERTAIN OBLIGATIONS OF HOLDERS
AND BENEFICIAL OWNERS OF ADSs...........................................................................23
Section 3.1 Proofs, Certificates and Other Information...................................23
Section 3.2 Liability for Taxes and Other Charges........................................23
Section 3.3 Representations and Warranties on Deposit of
Eligible Securities..........................................................24
(a) Deposit of Shares.......................................................24
(b) Deposit of Certificate(s) of Payment....................................24
Section 3.4 Compliance with Information Requests.........................................25
Section 3.5 Ownership Restrictions.......................................................25
ARTICLE IV.......................................................................................................25
THE DEPOSITED SECURITIES................................................................................25
Section 4.1 Cash Distributions...........................................................25
Section 4.2 Distribution in Eligible Securities..........................................26
Section 4.3 Elective Distributions in Cash or Eligible Securities........................27
Section 4.4 Distribution of Rights to
Purchase Additional ADSs.....................................................28
(a) Distribution to ADS Holders..........................................28
(b) Sale of Rights.......................................................28
(c) Lapse of Rights......................................................29
Section 4.5 Distributions Other Than Cash, Eligible Securities or Rights to
Purchase Eligible Securities.................................................30
Section 4.6 Distributions with Respect to Deposited Securities
in Bearer Form...............................................................30
Section 4.7 Redemption...................................................................31
Section 4.8 Conversion of Foreign Currency...............................................31
Section 4.9 Fixing of ADS Record Date....................................................32
Section 4.10 Voting of Deposited Securities...............................................33
(a) Voting by Shareholders...............................................33
(b) Voting by ADS Holders................................................33
(c) Voting of Deposited Securities Upon
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89
ADS Holders' Instructions............................................34
(d) Management Proxy.....................................................35
Section 4.11 Changes Affecting Deposited Securities.......................................35
Section 4.12 Available Information........................................................36
Section 4.13 Reports......................................................................36
Section 4.14 List of Holders..............................................................36
Section 4.15 Taxation.....................................................................37
ARTICLE V........................................................................................................38
THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY...........................................................38
Section 5.1 Maintenance of Office and Transfer Books by the Registrar....................38
Section 5.2 Exoneration..................................................................38
Section 5.3 Standard of Care.............................................................39
Section 5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary.........................................................40
Section 5.5 The Custodian................................................................41
Section 5.6 Notices and Reports..........................................................41
Section 5.7 Issuance of Additional Eligible Securities, ADSs, etc........................42
Section 5.8 Indemnification..............................................................43
Section 5.9 Fees and Charges of Depositary...............................................44
Section 5.10 Pre-Release Transactions. ..................................................44
Section 5.11 Restricted Securities Owners.................................................45
ARTICLE VI.......................................................................................................45
AMENDMENT AND TERMINATION...............................................................................45
Section 6.1 Amendment/Supplement.........................................................45
Section 6.2 Termination..................................................................46
ARTICLE VII......................................................................................................47
MISCELLANEOUS...........................................................................................47
Section 7.1 Counterparts.................................................................47
Section 7.2 No Third-Party Beneficiaries.................................................47
Section 7.3 Severability.................................................................48
Section 7.4 Holders and Beneficial Owners as Parties; Binding Effect.....................48
Section 7.5 Notices......................................................................48
Section 7.6 Governing Law and Jurisdiction...............................................49
Section 7.7 Assignment...................................................................50
Section 7.8 Compliance with U.S. Securities Laws.........................................50
Section 7.9 Titles and References........................................................51
EXHIBIT A.......................................................................................................A-1
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90
EXHIBIT B.......................................................................................................B-1
EXHIBIT C.......................................................................................................C-1
v
