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ADVANCED SEMICONDUCTOR ENGINEERING, INC.
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED THEREUNDER AND
OUTSTANDING UNDER THE AMENDED AND RESTATED
DEPOSIT AGREEMENT, DATED AS OF SEPTEMBER 29, 2000
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Amendment No. 2
to
Amended and Restated
Deposit Agreement
----------------------------------------------------------
Dated as of ________________, 2006
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS....................................................................2
SECTION 1.01. Definitions..................................................3
SECTION 1.02. Effective Date...............................................3
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT................................................3
SECTION 2.01. Deposit Agreement............................................3
SECTION 2.02. Amendments Binding on all Holders and Beneficial Owners......3
SECTION 2.03. Change of Fees of the Depositary.............................3
SECTION 2.04. Additional Change of Fees of the Depositary
SECTION 2.05. Direct Registration System...................................5
ARTICLE III
AMENDMENTS TO THE FORM OF ADR..................................................9
SECTION 3.01. ADR Amendment................................................9
SECTION 3.02. Change of Feesof the Depositary.............................12
ARTICLE IV
AMENDMENTS TO THE FEE SCHEDULE................................................13
SECTION 4.01. Amendment to Fee Schedule...................................13
ARTICLE V
FORM OF CERTIFICATION UPON WITHDRAWAL.........................................13
SECTION 5.01. Form of Certification Upon Withdrawal.......................13
ARTICLE VI
REPRESENTATIONS AND WARRANTIES................................................13
SECTION 6.01. Representations and Warranties..............................13
ARTICLE VII
MISCELLANEOUS.................................................................14
SECTION 7.01. New ADRs....................................................14
SECTION 7.02. Notice of Amendment to Holders of ADSs......................14
SECTION 7.03. [Reserved]..................................................14
SECTION 7.04. Ratification................................................15
SECTION 7.05. Governing Law...............................................15
SECTION 7.06. Counterparts................................................15
EXHIBIT A
[FORM OF RECEIPT]............................................................A-1
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Table of Contents
(continued)
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EXHIBIT B
FEE SCHEDULE DEPOSITARY FEES AND RELATED CHARGES............................B-1
EXHIBIT C
FORM OF CERTIFICATION UPON WITHDRAWAL........................................C-1
ii
AMENDMENT NO. 2 TO THE AMENDED AND RESTATED DEPOSIT AGREEMENT
AMENDMENT NO. 2 TO THE AMENDED AND RESTATED DEPOSIT AGREEMENT, dated as of
_____________, 2006 (the "Amendment"), by and among (i) Advanced Semiconductor
Engineering, Inc., a company organized and existing under the laws of the
Republic of China (the "Company"), (ii) Citibank, N.A., a national banking
association organized under the laws of the United States of America (the
"Depositary"), and (iii) all Holders and Beneficial Owners from time to time of
American Depositary Shares evidenced by American Depositary Receipts issued and
outstanding under the Amended and Restated Deposit Agreement, dated as of
September 29, 2000, as amended and supplemented from time to time.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Amended
and Restated Deposit Agreement, dated as of September 29, 2000, as supplemented
by a letter agreement, dated as of February 1, 2001, by and between the Company
and the Depositary, and as further supplemented by a letter agreement, dated as
of September 25, 2003, by and between the Company and the Depositary, and as
amended by Amendment No. 1 to the Amended and Restated Deposit Agreement, dated
as of April 6, 2006, by and between the Company and the Depositary (such amended
and restated deposit agreement, as so supplemented and amended, the "Deposit
Agreement"), for the creation of American Depositary Shares ("ADSs")
representing the Shares (as defined in the Deposit Agreement) so deposited and
for the execution and delivery of American Depositary Receipts ("ADRs") in
respect of the American Depositary Shares;
WHEREAS, the ADSs are listed for trading on The New York Stock Exchange
("NYSE") and the NYSE (i) has eliminated the restrictions it previously imposed
on depositary banks' fees, and (ii) will require that securities listed on the
NYSE become eligible for the Direct Registration System (the "DRS");
WHEREAS, the Company and the Depositary desire to replace the existing
certification attached as part of the Deposit Agreement to be delivered by a
Holder of ADSs upon withdrawal of Deposited Securities to allow for the
electronic submission of such certification in certain circumstances;
WHEREAS, the Company and the Depositary desire to (i) amend the Deposit
Agreement, the ADRs currently outstanding, the form of ADR annexed to the
Deposit Agreement as Exhibit A thereto, and the Fee Schedule annexed to the
Deposit Agreement as Exhibit B thereto to enable the Depositary to charge
certain additional fees in respect of the ADSs, (ii) amend the Deposit
Agreement, the ADRs currently outstanding and the form of ADR annexed to the
Deposit Agreement as Exhibit A thereto to allow ADSs to be eligible for the DRS,
(iii) replace the Form of Certification Upon Withdrawal annexed to the Deposit
Agreement as Exhibit C thereto to allow for the electronic submission of such
certification in certain circumstances, and (iv) to give notice thereof to all
Holders of ADSs; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement, the ADRs currently outstanding, the
form of ADR annexed as Exhibit A to the Deposit Agreement, the Fee Schedule
annexed to the Deposit Agreement as Exhibit B thereto and to replace the Form of
Certification Upon Withdrawal annexed to the Deposit Agreement as Exhibit C
thereto as follows:
ARTICLE I
DEFINITIONS
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SECTION 1.01. Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used, but not defined, herein shall have the meanings
given to such terms in the Deposit Agreement.
SECTION 1.02. Effective Date. The term "Effective Date" shall mean the
later to occur of (i) the expiration of 30 days after notice of this Amendment
has been given to Holders of outstanding ADRs, or (ii) the date upon which the
Commission declares effective the applicable Post-Effective Amendment to F-6
Registration Statement pursuant to which this Amendment has been filed with the
Commission.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
to the terms "Deposit Agreement" shall, as of the Effective Date, refer to the
Deposit Agreement, as defined hereunder, as amended by this Amendment, and as
further amended and supplemented from time to time after the Effective Date in
accordance with the terms of the Deposit Agreement.
SECTION 2.02. Amendments Binding on all Holders and Beneficial Owners.
From and after the Effective Date, the amendments to the Deposit Agreement
effected hereby shall be binding on all Holders and Beneficial Owners of ADSs
issued and outstanding as of the Effective Date and on all Holders and
Beneficial Owners of ADSs issued after the Effective Date.
SECTION 2.03. Change of Fees of the Depositary. All references made in the
Deposit Agreement to the fees of the Depositary shall, as of the Effective Date,
refer to the fees set forth in the Fee Schedule annexed as Exhibit B to this
Amendment.
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SECTION 2.04. Additional Change of Fees of the Depositary. To reflect the
change in fees, the Deposit Agreement is hereby amended as of the Effective Date
by deleting Section 5.9 in its entirety and inserting the following in its
stead:
"Section 5.9 Fees and Charges of Depositary. The Company, the
Holders, the 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.
Depositary Fees payable upon (i) deposit of Shares against issuance
of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of
Deposited Securities will be charged by the Depositary to the person to
whom the ADSs so issued are delivered (in the case of ADS issuances) and
to the person who delivers the ADSs for cancellation to the Depositary (in
the case of ADS cancellations). In the case of ADSs issued by the
Depositary into DTC or presented to the Depositary via DTC, the ADS
issuance and cancellation fees will be payable to the Depositary by the
DTC Participant(s) receiving the ADSs from the Depositary or the DTC
Participant(s) surrendering the ADSs to the Depositary for cancellation,
as the case may be, on behalf of the Beneficial Owner(s) and will be
charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the
DTC participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the
Depositary by Holders as of the applicable ADS Record Date established by
the Depositary. In the case of distributions of cash, the amount of the
applicable Depositary fees is deducted by the Depositary from the funds
being distributed. In the case of distributions other than cash and the
Depositary service fee, the Depositary will invoice the applicable Holders
as of the ADS Record Date established by the Depositary. For ADSs held
through DTC, the Depositary fees for distributions other than cash and the
Depositary service fee are charged by the Depositary to the DTC
Participants in accordance with the procedures and practices prescribed by
DTC from time to time and the DTC Participants in turn charge the amount
of such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may remit to the Company all or a portion of the
Depositary fees charged for the reimbursement of certain expenses incurred
by the Company in respect of the ADR program established pursuant to this
Deposit Agreement upon such terms and conditions as the Company and the
Depositary may agree from time to time. The Company agrees to promptly pay
to the Depositary such fees and charges and reimburse the Depositary for
such out-of-pocket expenses as the Depositary and the Company may agree
from time to time. Responsibility for payment of such charges and
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reimbursements 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."
SECTION 2.05. Direct Registration System. In order to make the ADSs
eligible for the DRS, the Deposit Agreement is hereby amended as of the
Effective Date by:
(a) deleting the first two sentences of Section 1.2 thereof in its
entirety and inserting the following in its stead:
"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, if issued as
Certificated ADS(s) (as hereinafter defined), 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. ADS(s) may be issued under the terms
of this Deposit Agreement in the form of (a) Certificated ADS(s), in which
case the ADS(s) are evidenced by ADR(s), or (b) Uncertificated ADS(s) (as
hereinafter defined), in which case the ADS(s) are not evidenced by ADR(s)
but are reflected on the direct registration system maintained by the
Depositary for such purposes under the terms of Section 2.14. Unless
otherwise specified in this Deposit Agreement or in any ADR, or unless the
context otherwise requires, any reference to ADS(s) shall include
Certificated ADS(s) and Uncertificated ADS(s), individually or
collectively, as the context may require."
(b) adding the following new Section 1.8:
"Section 1.8 "Certificated ADS(s)" shall have the meaning set forth
in Section 2.14."
(c) adding the following to the end of Section 1.23 thereof:
"Any reference to Holders of ADR(s) or ADS(s) in this Deposit
Agreement shall, in the context of the Uncertificated ADSs, refer to the
5
person(s) in whose name the Uncertificated ADSs are registered on the
books of the Depositary maintained for such purpose."
(d) renumbering Section 1.8 thereof through and including Section 1.32
thereof, starting with Section 1.9 and continuing sequentially until ending with
Section 1.33.
(e) deleting the first sentence of Section 1.33 thereof in its entirety
and inserting the following in its stead:
"Section 1.34 "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 in the form of Certificated ADS(s), as
such Receipts may be amended from time to time in accordance with the
provisions of this Deposit Agreement."
(f) renumbering Section 1.34 thereof through and including Section 1.46
thereof, starting with Section 1.35 and continuing sequentially until ending
with Section 1.47.
(g) adding the following as a new Section 1.48:
"Section 1.48 "Uncertificated ADS(s)" shall have the meaning set
forth in Section 2.14."
(h) renumbering Section 1.47 thereof as Section 1.49.
(i) deleting the first sentence of Section 2.2(a) thereof in its entirety
and inserting the following in its stead:
"Certificated ADSs shall be evidenced by definitive Receipts which
shall be engraved, printed, lithographed or produced in such other manner
as may be agreed upon by the Company and the Depositary."
(j) deleting the fifth sentence of Section 2.2(a) thereof in its entirety
and inserting the following in its stead:
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"No Receipt and no Certificated 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."
(k) deleting the first sentence of Section 2.2(c) thereof in its entirety
and inserting the following in its stead:
"Subject to the limitations contained herein and in the Receipt,
title to a Receipt (and to each Certificated ADS evidenced thereby) shall
be transferable upon the same terms as a certificated security under the
laws of the State of New York, provided that, in the case of Certificated
ADSs, such Receipt has been properly endorsed or is accompanied by
properly executed instruments of transfer."
(l) deleting the second sentence of Section 2.2(d) thereof in its entirety
and inserting the following in its stead:
"Unless issued by the Depositary as Uncertificated ADSs, a single
ADR in the form of a "Balance Certificate" will (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."
(m) adding the following new Section 2.14:
"Section 2.14 Certificated/Uncertificated ADSs. Notwithstanding any
other provision of this Deposit Agreement, the Depositary may, at any time
and from time to time, issue ADSs that are not evidenced by ADRs (such
ADSs, the "Uncertificated ADS(s)" and the ADS(s) evidenced by ADR(s), the
"Certificated ADS(s)"). When issuing and maintaining Uncertificated ADS(s)
under this Deposit Agreement, the Depositary shall at all times be subject
to (a) the standards applicable to registrars and transfer agents
maintaining direct registration systems for equity securities in New York
and issuing uncertificated securities under New York law, and (b) the
terms of New York law applicable to uncertificated equity securities.
Uncertificated ADSs shall not be represented by any instruments but shall
be evidenced by registration in the books of the Depositary maintained for
such purpose. Holders of Uncertificated ADSs, that are not subject to any
registered pledges, liens, restrictions or adverse claims of which the
Depositary has written notice at such time, shall at all times have the
right to exchange the Uncertificated ADS(s) for Certificated ADS(s) of the
same type and class, subject in each case to applicable laws and any rules
and regulations the Depositary may have established in respect of the
Uncertificated ADSs. Holders of Certificated ADSs shall, if the Depositary
maintains a direct registration system for the ADSs, have the right to
exchange the Certificated ADSs for Uncertificated ADSs upon (i) the due
surrender of the Certificated ADS(s) to the Depositary for such purpose
and (ii) the presentation of a written request to that effect to the
Depositary, subject in each case to (w) all liens and restrictions noted
7
on the ADR evidencing the Certificated ADS(s) and all adverse claims of
which the Depositary then has written notice, (x) the terms of this
Deposit Agreement and the rules and regulations that the Depositary may
establish for such purposes hereunder, (y) applicable law, and (z) payment
of the Depositary fees and expenses applicable to such exchange of
Certificated ADS(s) for Uncertificated ADS(s). Uncertificated ADSs shall
in all material respects be identical to Certificated ADS(s) of the same
type and class, except that (1) no ADR(s) shall be, or shall need to be,
issued to evidence Uncertificated ADS(s), (2) Uncertificated ADS(s) shall,
subject to the terms of this Deposit Agreement, be transferable upon the
same terms and conditions as uncertificated securities under New York law,
(3) the ownership of Uncertificated ADS(s) shall be recorded on the books
of the Depositary maintained for such purpose and evidence of such
ownership shall be reflected in periodic statements provided by the
Depositary to the Holder(s) in accordance with applicable New York law,
(4) the Depositary may from time to time, upon notice to the Holders of
Uncertificated ADSs affected thereby, establish rules and regulations, and
amend or supplement existing rules and regulations, as may be deemed
reasonably necessary to maintain Uncertificated ADS(s) on behalf of
Holders, provided that such rules and regulations do not conflict with the
terms of this Deposit Agreement and applicable law, (5) the Uncertificated
ADS(s) shall not be entitled to any benefits under this Deposit Agreement
or be valid or enforceable for any purpose against the Depositary or the
Company unless such Uncertificated ADS(s) is/are registered on the books
of the Depositary maintained for such purpose, (6) the Depositary may, in
connection with any deposit of Shares resulting in the issuance of
Uncertificated ADSs and with any transfer, pledge, release and
cancellation of Uncertificated ADSs, require the prior receipt of such
documentation as the Depositary may deem reasonably appropriate, and (7)
upon termination of this Deposit Agreement, the Depositary shall not
require Holders of Uncertificated ADSs to affirmatively instruct the
Depositary before remitting proceeds from the sale of the Deposited
Securities represented by such Holders' Uncertificated ADSs under the
terms of Section 6.2 of this Deposit Agreement. When issuing ADSs under
the terms of this Deposit Agreement, including, without limitation,
issuances pursuant to Sections 2.5, 4.2, 4.3, 4.4, 4.5 and 4.11, the
Depositary may in its discretion determine to issue Uncertificated ADSs
rather than Certificated ADSs, unless otherwise specifically instructed by
the applicable Holder to issue Certificated ADSs. All provisions and
conditions of this Deposit Agreement shall apply to Uncertificated ADSs to
the same extent as to Certificated ADSs, except as contemplated by this
Section 2.14. The Depositary is authorized and directed to take any and
all actions and establish any and all procedures deemed reasonably
necessary to give effect to the terms of this Section 2.14. Any references
in this Deposit Agreement or any ADR(s) to the terms "American Depositary
Share(s)" or "ADS(s)" shall, unless the context otherwise requires,
8
include Certificated ADS(s) and Uncertificated ADS(s). Except as set forth
in this Section 2.14 and except as required by applicable law, the
Uncertificated ADSs shall be treated as ADSs issued and outstanding under
the terms of this Deposit Agreement. In the event that, in determining the
rights and obligations of parties hereto with respect to any
Uncertificated ADSs, any conflict arises between (I) the terms of this
Deposit Agreement (other than this Section 2.14) and (II) the terms of
this Section 2.14, the terms and conditions set forth in this Section 2.14
shall be controlling and shall govern the rights and obligations of the
parties to this Deposit Agreement pertaining to the Uncertificated ADSs."
ARTICLE III
AMENDMENTS TO THE FORM OF ADR
SECTION 3.01. ADR Amendment. The form of ADR attached as Exhibit A to the
Deposit Agreement and each of the ADRs issued and outstanding under the terms of
the Deposit Agreement is hereby amended as of the Effective Date by:
(a) deleting the first sentence of paragraph (1) thereof in its entirety
and inserting the following in its stead:
"This American Depositary Receipt is one of an issue of American
Depositary Receipts ("Receipts" or "ADRs"), all issued and to be issued
upon the terms and conditions set forth in the Amended and Restated
Deposit Agreement, dated as of September 29, 2000, by and among the
Company, the Depositary and all Holders and Beneficial Owners from time to
time of American Depositary Shares ("ADSs") evidenced by ADRs, as
supplemented by a letter agreement, dated as of February 1, 2001, by and
between the Company and the Depositary, and as further supplemented by a
letter agreement, dated as of September 25, 2003, by and between the
Company and the Depositary, and as amended by Amendment No. 1 to the
Amended and Restated Deposit Agreement, dated as of April 6, 2006, by and
between the Company and the Depositary, and as further amended by
Amendment No. 2 to the Amended and Restated Deposit Agreement, dated as of
[DATE], by and between the Company and the Depositary (as so amended and
supplemented and as further amended and supplemented from time to time,
the "Deposit Agreement"), with each Holder and Beneficial Owner from time
to time of ADSs evidenced by ADRs, by accepting an ADS, becoming bound by
all the terms and provisions thereof."
(b) deleting paragraph (10) thereof in its entirety and inserting the
following in its stead:
"(10) Charges of Depositary. The Depositary shall charge the
following fees:
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(i) Issuance Fee: to any person depositing Shares or to whom ADSs are
issued upon the deposit of Shares, a fee not in excess of U.S. $5.00
per 100 ADSs (or fraction thereof) so issued under the terms of the
Deposit Agreement (excluding issuances pursuant to paragraph (iv)
below);
(ii) Cancellation Fee: to any person surrendering ADSs for cancellation
and withdrawal of Deposited Securities, a fee not in excess of U.S.
$5.00 per 100 ADSs (or fraction thereof) so surrendered;
(iii) Cash Distribution Fee: to any Holder of ADS(s), a fee not in excess
of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the
distribution of cash dividends or other cash distributions (i.e.,
upon the sale of rights and other entitlements), unless prohibited
by the exchange upon which the ADSs are listed;
(iv) Stock Distribution/Rights Exercise Fee: to any Holder of ADS(s), a
fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof)
held for the distribution of stock dividends or other free stock
distributions or upon the exercise of rights to purchase additional
ADSs, unless prohibited by the exchange upon which the ADSs are
listed;
(v) Other Distribution Fee: to any Holder of ADS(s), a fee not in excess
of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the
distribution of securities other than ADSs or rights to purchase
additional ADSs;
(vi) Depositary Services Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held on the
applicable record date(s) established by the Depositary, unless
prohibited by the exchange upon which the ADSs are listed; and
(vii) ADR Transfer Fee: to any person presenting an ADR for transfer, a
fee not in excess of U.S. $1.50 per ADR so presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares and
persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
(b) such registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities on the share
register and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or
any nominees upon the making of deposits and withdrawals,
respectively;
(c) such cable, telex and facsimile transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the
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expense of the person depositing or withdrawing Shares or Holders
and Beneficial Owners of ADSs;
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(e) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations and
other regulatory requirements applicable to Shares, Deposited
Securities, ADSs and ADRs; and
(f) the fees and expenses incurred by the Depositary, the Custodian, or
any nominee in connection with the delivery or servicing of
Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (22) of this ADR and as contemplated in the Deposit
Agreement. 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.
Depositary fees payable upon (i) deposit of Shares against issuance of
ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable ADS Record Date established by the Depositary. In
the case of distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the ADS Record Date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs.
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The Depositary may remit to the Company all or a portion of the
Depositary fees charged for the reimbursement of certain expenses incurred
by the Company in respect of the ADR program established pursuant to the
Deposit Agreement upon such terms and conditions as the Company and the
Depositary may agree from time to time. The Company agrees to promptly pay
to the Depositary such fees and charges and reimburse the Depositary for
such out-of-pocket expenses as the Depositary and the Company agree from
time to time. Responsibility for payment of such charges and
reimbursements 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 the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 of the Deposit Agreement, such
right shall extend for those fees, charges and expenses incurred prior to
the effectiveness of such resignation or removal."
(c) deleting the first sentence of paragraph (11) thereof in its entirety
and inserting the following in its stead:
"It is a condition of this Receipt, and every successive Holder of
this Receipt by accepting or holding the same consents and agrees, that
title to this Receipt (and to each Certificated ADS evidenced hereby)
shall be transferable upon the same terms as a certificated security under
the laws of the State of New York, provided that, in the case of
Certificated ADSs, the Receipt has been properly endorsed or is
accompanied by proper instruments of transfer."
SECTION 3.02. Change of Fees and Charges of the Depositary. All references
to the fees and charges of the Depositary made in the form of ADR attached as
Exhibit A to the Deposit Agreement and in each of the ADRs outstanding, as of
the Effective Date, under the terms of the Deposit Agreement shall, as of the
Effective Date, refer to the fees and charges of the Depositary set forth in
paragraph (10) of the Form of ADR attached as Exhibit A to the Deposit Agreement
and the Fee Schedule attached as Exhibit B to this Amendment.
12
ARTICLE IV
AMENDMENTS TO THE FEE SCHEDULE
SECTION 4.01. Amendment to Fee Schedule. The Fee Schedule annexed to the
Deposit Agreement as Exhibit B thereto is hereby amended by deleting it in its
entirety and inserting Exhibit B to this Amendment in its stead.
ARTICLE V
FORM OF CERTIFICATION UPON WITHDRAWAL
SECTION 5.01. Form of Certification Upon Withdrawal. The form
Certification of Withdrawal annexed to the Deposit Agreement as Exhibit C
thereto is hereby replaced by deleting it in its entirety and inserting Exhibit
C to this Amendment in its stead.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and the
Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly and
validly authorized, executed and delivered by the Company, and constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and any other document furnished hereunder or thereunder in the
13
Republic of China, neither of such agreements need to be filed or recorded with
any court or other authority in the Republic of China, nor does any stamp or
similar tax need be paid in Republic of China on or in respect of such
agreements.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. New ADRs. From and after the Effective Date, the Depositary
shall arrange to have new ADRs printed or amended that reflect the changes to
the form of ADR effected by this Amendment. All ADRs issued after the Effective
Date, once such new ADRs are available, whether upon the deposit of Shares or
other Deposited Securities or upon the transfer, combination or split up of
existing ADRs, shall be substantially in the form of the specimen ADR attached
as Exhibit A hereto. However, ADRs issued prior or subsequent to the date
hereof, which do not reflect the changes to the form of ADR effected hereby, do
not need to be called in for exchange and may remain outstanding until such time
as the Holders thereof choose to surrender them for any reason under the Deposit
Agreement. The Depositary is authorized and directed to take any and all actions
deemed necessary to effect the foregoing.
SECTION 7.02. Notice of Amendment to Holders of ADSs. The Depositary is
hereby directed to send notices informing the Holders of ADSs (i) of the terms
of this Amendment, (ii) of the Effective Date of this Amendment, (iii) that the
Holder of ADRs shall be given the opportunity, but that it is unnecessary, to
substitute their ADRs with new ADRs reflecting the changes effected by this
Amendment, as provided in Section 7.01 hereof, and (iv) that copies of this
Amendment may be retrieved from the Commission's website at xxx.xxx.xxx and may
be obtained from the Depositary and the Company upon request.
SECTION 7.03. [Reserved].
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SECTION 7.04. Ratification. Except as expressly amended hereby, the terms,
covenants and conditions of the Deposit Agreement as originally executed shall
remain in full force and effect.
SECTION 7.05. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York without reference
to its principles of choice of law.
SECTION 7.06. Counterparts. This Amendment may be executed in any number
of counterparts, each of which shall be deemed an original, and all of such
counterparts together shall be deemed an original, and all such counterparts
together shall constitute one and the same instrument.
15
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
By:
------------------------------------
Name:
Title:
CITIBANK, N.A., as Depositary
By:
------------------------------------
Name:
Title:
- S-1 -
EXHIBIT A
[FORM OF RECEIPT]
Number _____________ CUSIP NUMBER: _______
[American Depositary Shares (each
American Depositary Share
representing five (5) Fully Paid
common shares, each having a par
value of NT$10.00 per share)]
[Temporary American Depositary
Shares (each Temporary American
Depositary Share representing an
undivided interest if a global
certificate of payment, each
interest representing the
irrevocable right to receive five
(5) common shares, each having a par
value of NT$10.00 per share)]
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
[DEPOSITED [COMMON SHARES]]
[INTERESTS IN THE DEPOSITED CERTIFICATE OF PAYMENT]
of
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
(Incorporated under the laws of The Republic of China)
CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that _____________is the owner of ______________
American Depositary Shares (hereinafter "ADS"), representing deposited [common
shares] [interests in a global Certificate of Payment representing the
irrevocable right to receive common shares], par value NT$10.00 per share,
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
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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 Xxxxxxxxx
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" or "ADRs"), all issued
and to be issued upon the terms and conditions set forth in the Amended and
Restated Deposit Agreement, dated as of September 29, 2000, by and among the
Company, the Depositary and all Holders and Beneficial Owners from time to time
of American Depositary Shares ("ADSs") evidenced by ADRs, as supplemented by a
letter agreement, dated as of February 1, 2001, by and between the Company and
the Depositary, and as further supplemented by a letter agreement, dated as of
September 25, 2003, by and between the Company and the Depositary, and as
amended by Amendment No. 1 to the Amended and Restated Deposit Agreement, dated
as of April 6, 2006, by and between the Company and the Depositary, and as
further amended by Amendment No. 2 to the Amended and Restated Deposit
Agreement, dated as of [DATE], by and between the Company and the Depositary (as
so amended and supplemented and as further amended and supplemented from time to
time, the "Deposit Agreement"), with each Holder and Beneficial Owner from time
to time of ADSs evidenced by ADRs, by accepting an ADS, becoming bound by all
the terms and provisions thereof. The Deposit Agreement sets forth the rights
and obligations of Holders and Beneficial Owners of Receipts and the rights and
duties of the Depositary in respect of the Eligible Securities deposited
thereunder and any and all other securities, property and cash from time to time
received in respect of such Eligible Securities and held thereunder (such
Eligible Securities, securities, property and cash are herein called "Deposited
Securities"). Copies of the Deposit Agreement are on file at the Principal
Office of the Depositary and with the Custodian.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Incorporation of the Company (as in effect on the date of the signing of the
Deposit Agreement) and are qualified by and subject to the detailed provisions
of the Deposit Agreement and the Articles of Incorporation, to which reference
is hereby made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through
DTC must rely on the procedures of DTC and the DTC Participants to exercise and
be entitled to any rights attributable to such ADSs.
(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 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
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other functions as may be designated by such withdrawing Holder. In addition,
such withdrawing Holder is also required to appoint a custodian bank to hold the
securities in safekeeping, make confirmations and settle trades and report all
relevant information. Without making such appointment and the opening of such
Accounts, the withdrawing Holder would be unable to hold or subsequently sell
the Deposited Securities withdrawn from the ADR Facilities on the TSE or
otherwise. The laws of the Republic of China applicable to the withdrawal of
Deposited Securities may change from time to time. There can be no assurance
that current law will remain in effect or that future changes of Republic of
China law will not adversely affect the ability of Holders to withdraw Deposited
Securities hereunder.
(b) Sale of Deposited Securities. Upon surrender of Receipts at the
Principal Office and upon payment of any fees, reasonable expenses, taxes or
other governmental charges as provided hereunder, subject to the terms of this
Deposit Agreement and the Company's Articles of Incorporation, and the transfer
restrictions applicable to the Deposited Securities, if any, Holders may request
that the Deposited Securities represented by such Holders' Receipts be sold on
such Holder's behalf. Any Holder requesting a sale of Deposited Securities may
be required by the Depositary to deliver, or cause to be delivered, to the
Depositary a written order requesting the Depositary to sell, or cause to be
sold, such Deposited Securities. Any such sale of Deposited Securities will be
conducted in accordance with applicable ROC law through a securities company in
the ROC on the TSE or in such other manner as is or may be permitted under
applicable ROC law. Any such sale of Deposited Securities will be at the expense
and risk of the Holder requesting such sale. Any Holder requesting the
Depositary to sell the Deposited Securities represented by such Holder's ADSs
may be required to enter into a separate agreement to cover the terms of the
sale of such Deposited Securities.
Upon receipt of any proceeds from any such sale, the Depositary
shall, subject to any restrictions imposed by ROC law and regulations, and as
provided hereunder and under the Deposit Agreement, convert or cause to be
converted any such proceeds into U.S. dollars and distribute any such proceeds
to the Holders entitled thereto after deduction or payment of any fees,
reasonable expenses, taxes or governmental charges (including, without
limitation, any ROC and U.S. taxes) incurred in connection with such sale, as
provided under the Deposit Agreement. Any such sale may be subject to ROC
taxation on capital gains, if any, and will be subject to a securities
transaction tax in the ROC. The ROC does not, as of the date hereof, impose tax
on capital gains arising from ROC securities transactions, but there can be no
assurance that a capital gains tax on ROC securities transactions will not be
imposed in the future or as to the manner in which any ROC capital gains tax in
respect of a sale of Deposited Securities would be imposed or calculated.
(c) Withdrawal of Deposited Securities. The Holder of ADSs shall be
entitled to Delivery (at the Custodian's designated office) of the 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
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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 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
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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 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
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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).
(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
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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
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
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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:
(i) Issuance Fee: to any person depositing Shares or to whom ADSs
are issued upon the deposit of Shares, a fee not in excess of
U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under
the terms of the Deposit Agreement (excluding issuances
pursuant to paragraph (iv) below);
(ii) Cancellation Fee: to any person surrendering ADSs for
cancellation and withdrawal of Deposited Securities, a fee not
in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so
surrendered;
(iii) Cash Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of cash dividends or other cash
distributions (i.e., upon the sale of rights and other
entitlements), unless prohibited by the exchange upon which
the ADSs are listed;
(iv) Stock Distribution/Rights Exercise Fee: to any Holder of
ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or
fraction thereof) held for the distribution of stock dividends
or other free stock distributions or upon the exercise of
rights to purchase additional ADSs, unless prohibited by the
exchange upon which the ADSs are listed;
(v) Other Distribution Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
for the distribution of securities other than ADSs or rights
to purchase additional ADSs;
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(vi) Depositary Services Fee: to any Holder of ADS(s), a fee not in
excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held
on the applicable record date(s) established by the
Depositary, unless prohibited by the exchange upon which the
ADSs are listed; and
(vii) ADR Transfer Fee: to any person presenting an ADR for
transfer, a fee not in excess of U.S. $1.50 per ADR so
presented for transfer.
In addition, Holders, Beneficial Owners, persons depositing Shares
and persons surrendering ADSs for cancellation and withdrawal of Deposited
Securities will be required to pay the following charges:
(a) taxes (including applicable interest and penalties) and other
governmental charges;
(b) such registration fees as may from time to time be in effect
for the registration of Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other Deposited Securities to or from the name of the
Custodian, the Depositary or any nominees upon the making of
deposits and withdrawals, respectively;
(c) 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
Shares or Holders and Beneficial Owners of ADSs;
(d) the expenses and charges incurred by the Depositary in the
conversion of foreign currency;
(e) such fees and expenses as are incurred by the Depositary in
connection with compliance with exchange control regulations
and other regulatory requirements applicable to Shares,
Deposited Securities, ADSs and ADRs; and
(f) the fees and expenses incurred by the Depositary, the
Custodian, or any nominee in connection with the delivery or
servicing of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by paragraph (22) of this ADR and as contemplated in the Deposit
Agreement. The Depositary will provide, without charge, a copy of its latest fee
schedule to anyone upon request. The charges and expenses of the Custodian are
for the sole account of the Depositary.
A-9
Depositary fees payable upon (i) deposit of Shares against issuance
of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited
Securities will be charged by the Depositary to the person to whom the ADSs so
issued are delivered (in the case of ADS issuances) and to the person who
delivers the ADSs for cancellation to the Depositary (in the case of ADS
cancellations). In the case of ADSs issued by the Depositary into DTC or
presented to the Depositary via DTC, the ADS issuance and cancellation fees will
be payable to the Depositary by the DTC Participant(s) receiving the ADSs from
the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary
for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and
will be charged by the DTC Participant(s) to the account(s) of the applicable
Beneficial Owner(s) in accordance with the procedures and practices of the DTC
participant(s) as in effect at the time. Depositary fees in respect of
distributions and the Depositary services fee are payable to the Depositary by
Holders as of the applicable ADS Record Date established by the Depositary. In
the case of distributions of cash, the amount of the applicable Depositary fees
is deducted by the Depositary from the funds being distributed. In the case of
distributions other than cash and the Depositary service fee, the Depositary
will invoice the applicable Holders as of the ADS Record Date established by the
Depositary. For ADSs held through DTC, the Depositary fees for distributions
other than cash and the Depositary service fee are charged by the Depositary to
the DTC Participants in accordance with the procedures and practices prescribed
by DTC from time to time and the DTC Participants in turn charge the amount of
such fees to the Beneficial Owners for whom they hold ADSs.
The Depositary may remit to the Company all or a portion of the
Depositary fees charged for the reimbursement of certain expenses incurred by
the Company in respect of the ADR program established pursuant to the Deposit
Agreement upon such terms and conditions as the Company and the Depositary may
agree from time to time. The Company agrees to promptly pay to the Depositary
such fees and charges and reimburse the Depositary for such out-of-pocket
expenses as the Depositary and the Company agree from time to time.
Responsibility for payment of such charges and reimbursements 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 the Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 of the Deposit Agreement, such right
shall extend for those fees, charges and expenses incurred prior to the
effectiveness of such resignation or removal.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each Certificated ADS evidenced
hereby) shall be transferable upon the same terms as a certificated security
under the laws of the State of New York, provided that, in the case of
Certificated ADSs, the Receipt has been properly endorsed or is accompanied by
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
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Depositary nor the Company shall have any obligation nor be subject to any
liability under the Deposit Agreement or this Receipt to any holder of this
Receipt or any Beneficial Owner unless such holder is the Holder of this Receipt
registered on the books of the Depositary or, in the case of a Beneficial Owner,
such Beneficial Owner or the Beneficial Owner's representative is the Holder
registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the ADSs represented
hereby) shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose against the Depositary or the Company
unless this Receipt has been (i) dated, (ii) signed by the manual or facsimile
signature of a duly authorized signatory of the Depositary, (iii) countersigned
by the manual or facsimile signature of a duly authorized signatory of the
Registrar, and (iv) registered in the books maintained by the Registrar for the
registration of issuances and transfers of Receipts. Receipts bearing the
facsimile signature of a duly-authorized signatory of the Depositary or the
Registrar, who at the time of signature was a duly authorized signatory of the
Depositary or the Registrar, as the case may be, shall bind the Depositary,
notwithstanding the fact that such signatory has ceased to be so authorized
prior to the delivery of such Receipt by the Depositary.
(13) Available Information; Reports; Inspection of Transfer Books.
The Company is subject to the periodic reporting requirements of the Exchange
Act and accordingly files certain information with the Commission. These reports
and documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Xxxxxxxxx Xxxxx, 000 X Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 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
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The address of the Principal Office of the Depositary is 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-12
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(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, 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,
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each ADS issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interest in the
additional integral number of Eligible Securities distributed upon the Deposited
Securities represented thereby (subject, however, in each case, to the laws and
regulations of the Republic of China and net (a) of the applicable fees and
charges of, and the reasonable expenses incurred by, the Depositary, and (b)
taxes). In lieu of delivering fractional ADSs, the Depositary shall sell the
number of Eligible Securities or ADSs, as the case may be, represented by the
aggregate of such fractions and distribute the net proceeds upon the terms set
forth in the Deposit Agreement.
In the event that (x) the Depositary determines that any
distribution in property (including Eligible Securities) is subject to any tax
or other governmental charges which the Depositary is obligated to withhold, or
(y) if the Company in the fulfillment of its obligations under the Deposit
Agreement, has furnished an opinion of U.S. counsel determining that Eligible
Securities must be registered under the Securities Act or other laws in order to
be distributed to Holders (and no such registration statement has been declared
effective) or (z) the deposit of Eligible Securities is not permitted under the
laws or regulations of the Republic of China, the Depositary may dispose of all
or a portion of such property (including Eligible Securities and rights to
subscribe therefor) in such amounts and in such manner, including by public or
private sale, as the Depositary deems necessary and practicable and the
Depositary shall distribute the net proceeds of any such sale (after deduction
of (a) taxes and fees and (b) charges of, and reasonable expenses incurred by,
the Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold balance of
such property in accordance with the provisions of the Deposit Agreement.
Upon timely receipt of a notice indicating that the Company wishes
an elective distribution to be made available to Holders upon the terms
described in the Deposit Agreement, the Company and the Depositary shall
determine whether such distribution is lawful and reasonably practicable. If so,
the Depositary shall, subject to the terms and conditions of the Deposit
Agreement, establish an ADS record date according to Article (16) hereof and
establish procedures to enable the Holder hereof to elect to receive the
proposed distribution in cash or in additional ADSs. If a Holder elects to
receive the distribution in cash, the dividend shall be distributed as in the
case of a distribution in cash. If the Holder hereof elects to receive the
distribution in additional ADSs, the distribution shall be distributed as in the
case of a distribution in Eligible Securities. If such elective distribution is
not lawful or not reasonably practicable, the Depositary shall, to the extent
permitted by law, distribute to Holders, on the basis of the same determination
as is made in the Republic of China in respect of the Deposited Securities for
which no election is made, either (x) cash or (y) additional ADSs representing
such additional Eligible Securities, in each case, upon the terms described in
the Deposit Agreement. Nothing herein or in the Deposit Agreement shall obligate
the Depositary to make available to the Holder hereof a method to receive the
elective distribution in Eligible Securities (rather than ADSs). There can be no
assurance that the Holder hereof will be given the opportunity to receive
elective distributions on the same terms and conditions as the holders of
Deposited Securities.
Upon timely receipt by the Depositary of a notice indicating that
the Company wishes rights to subscribe for additional Eligible Securities to be
made available to Holders of ADSs, the Depositary upon consultation with the
Company, shall determine, whether it is lawful and reasonably practicable to
make such rights available to the Holders. The Depositary shall make such rights
available to any Holders only if (i) the Company shall have timely requested
that such rights be made available to Holders, (ii) the Depositary shall have
received the documentation contemplated in the Deposit Agreement, and (iii) the
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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 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
A-15
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 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
A-16
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 evidencing
the irrevocable right to receive Shares) is entitled to one vote for each Share
held, except that the number of votes of a holder of more than 3% of the total
outstanding Shares is discounted by the Company by a factor of 0.1% of that
portion of the Shares held in excess of 3% (e.g., a holder of 10% of the total
outstanding Shares would be permitted to exercise voting rights only with
respect of a 9.93% of such Shares), (ii) the election of directors and
supervisors takes place by means of cumulative voting, and (iii) a shareholder
must, as to all matters subject to a vote of shareholders (other than the
election of directors and supervisors), exercise the voting rights for all
Shares held by such shareholder in the same manner (e.g., a holder of 1,000
Shares cannot split his/her votes but must vote all 1,000 Shares in the same
manner except in the event of cumulative voting for an election of directors and
supervisors). The voting rights attaching to the Deposited Securities must be
exercised by, or on behalf of, the Depositary, as representative of the Holders,
collectively in the same manner, including the election of directors and
supervisors. Deposited Securities which have been withdrawn from the ADR
Facilities and timely transferred on the Company's register of shareholders to a
person other than the Depositary may be voted by the registered holder(s)
thereof directly, subject, in each case, to the limitations of ROC law and the
Articles of Incorporation of the Company. Holders may not receive sufficient
A-17
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), 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.
A-18
(c) Voting of Deposited Securities Upon ADS Holders' Instructions.
If Holders of ADSs together holding at least 51% of all the ADSs (including
Temporary ADSs) outstanding as of the relevant ADS Record Date shall instruct
the Depositary, prior to the date established for such purpose by the
Depositary, to vote in the same manner in respect of one or more resolutions to
be proposed at a shareholders' meeting (including resolutions for the election
of directors and/or supervisors), the Depositary shall notify to the Chairman of
the Company (or his/her designate) and appoint the Chairman of the Company (or
his/her designate) as the representative of the Depositary and the Registered
Holders to attend such shareholders' meeting and vote all Deposited Securities
evidenced by ADSs then outstanding (including Temporary ADSs) in the manner so
instructed by such Holders. If voting instructions are received by the
Depositary on or before the date established by the Depositary for the receipt
of such instructions from any Holder as of the ADS Record Date, which are signed
but without further indication as to voting instructions, the Depositary shall
deem such Holder to have instructed a vote in favor of the items set forth in
such instructions. The Depositary and Custodian shall not have any obligation to
monitor, and shall not incur any liability for, the actions, or the failure to
act, of the Chairman of the Company (or his/her designate) as representative of
the Registered Holder.
(d) Management Proxy. If, for any reason (other than a failure by
the Company to supply the requisite number of Shareholder Notices to the
Depositary within the requisite time period provided in the Deposit Agreement,
the Depositary has not, prior to the date established for such purpose by the
Depositary received instructions from Holders together holding at least 51% of
all ADSs (including Temporary ADSs) outstanding at the relevant ADS Record Date,
to vote in the same manner in respect of any resolution (including resolutions
for the election of directors and/or supervisors), then, subject to the
following paragraph, the Holders shall be deemed to have authorized and directed
the Depositary to give a discretionary proxy (a "Management Proxy") to the
Chairman of the Company (or his/her designate) as the representative of the
Registered Holder to attend and vote at such meeting all the Deposited
Securities represented by ADSs then outstanding (including Temporary ADSs) in
his or her discretion. In such circumstances, the Chairman of the Company (or
his or her designate) shall be free to exercise the votes attaching to the
Deposited Securities in any manner he or she wishes, which may not be in the
interests of the Holders.
The Depositary's grant of a Management Proxy in the manner and
circumstances described in the preceding paragraph shall be subject to the
receipt by the Depositary prior to each shareholders' meeting of an opinion of
ROC counsel addressed to, and in form and substance satisfactory to, the
Depositary. In the event the Depositary does not receive such opinion, the
Depositary will not grant the Management Proxy but will cause the Deposited
Securities to be present at the shareholders' meeting to the extent practicable
and permitted by applicable law but will not cause the Deposited Securities to
be voted or the Management Proxy to be granted.
The Depositary shall not, and the Depositary shall ensure that the
Custodian and its nominees do not, vote or attempt to exercise the right to vote
that attaches to the Shares or other Deposited Securities, other than in
accordance with instructions given in accordance with Section 4.10 of the
Deposit Agreement. The terms Section 4.10 of the Deposit Agreement may be
amended from time to time in accordance with the terms of this Deposit
Agreement. By continuing to hold ADSs after the effective time of such amendment
A-19
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
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes) for the account of the Holders
otherwise entitled to such securities and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to the Deposit Agreement. The Depositary shall not be responsible
for (i) any failure to determine that it may be lawful or feasible to make such
securities available to Holders in general or any Holder in particular, (ii) any
foreign exchange exposure or loss incurred in connection with such sale, or
(iii) any liability to the purchaser of such securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty or restraint on account of, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement and this
Receipt, by reason of any provision of any present or future law or regulation
of the United States, the Republic of China or any other country, or of any
other governmental authority or regulatory authority or stock exchange, or by
reason of any provision, present or future of the Articles of Incorporation of
the Company or any provision of or governing any Deposited Securities, or by
reason of any act of God or war or other circumstances beyond its control
(including, without limitation, nationalization, expropriation, currency
restrictions, work stoppage, strikes, civil unrest, revolutions, rebellions,
explosions and computer failure), (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement or in the
Articles of Incorporation of the Company or provisions of or governing Deposited
Securities, (iii) for any action or inaction in reliance upon the advice of or
A-20
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 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
A-21
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 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.
A-22
(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 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
A-23
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (25) and Section 5.10 of the
Deposit Agreement, the Depositary, its Affiliates and their agents, on their own
behalf, may own and deal in any class of securities of the Company and its
Affiliates and in ADSs. In its capacity as Depositary, the Depositary shall not
lend Deposited Securities or ADSs; provided, however, that, subject to Republic
of China law and regulations, the Depositary may (i) issue ADSs prior to the
receipt of Eligible Securities pursuant to Section 2.3 of the Deposit Agreement
and (ii) deliver Deposited Securities upon the receipt of ADSs for cancellation
upon withdrawal of Deposited Securities pursuant to Section 2.7 of the Deposit
Agreement, including ADSs which were issued under (i) above but for which
Eligible Securities may not have been received (each such transaction under (i)
above, a "Pre-Release Transaction"). The Depositary may receive ADSs in lieu of
Eligible Securities under (i) above. Each such Pre-Release Transaction will be
(a) subject to a written agreement whereby the person or entity (the
"Applicant") to whom ADSs are to be delivered (w) represents that at the time of
the Pre-Release Transaction the Applicant or its customer owns the Eligible
Securities that are to be delivered by the Applicant under such Pre-Release
Transaction, (x) agrees to indicate the Depositary as owner of such Eligible
Securities in its records and to hold such Eligible Securities in trust for the
Depositary until such Eligible Securities or ADSs are delivered to the
Depositary or the Custodian, (y) unconditionally guarantees to deliver to the
Depositary or the Custodian, as applicable, such Eligible Securities or ADSs,
and (z) agrees to any additional restrictions or requirements that the
Depositary deems appropriate, (b) at all times fully collateralized with cash,
United States government securities or such other collateral as the Depositary
deems appropriate, (c) terminable by the Depositary on not more than five (5)
business days' notice and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will normally
limit the number of ADSs and Eligible Securities involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate.
The Depositary may also set limits with respect to the number of
ADSs and Eligible Securities involved in Pre-Release Transactions with any one
person on a case by case basis as it deems appropriate. The Depositary may
retain for its own account any compensation received by it in conjunction with
the foregoing. Collateral provided pursuant to (b) above, but not the earnings
thereon, shall be held for the benefit of the Holders (other than the
Applicant). Temporary ADSs and interests in any Certificate of Payment shall not
be eligible for Pre-Release Transactions hereunder.
(26) Right to Submit Proposals at Annual Ordinary Meeting of
Shareholders. (a) Proposals by Shareholders. The Company has informed the
Depositary that under ROC Company Law, as in effect as of the date of the
Deposit Agreement, holders of one percent (1%) or more of the total issued and
outstanding Shares of the Company as of the applicable record date for
determining holders of Shares with the right to vote at an annual ordinary
meeting of the Company's shareholders (the "Shareholder Proposal Record Date"),
are entitled to submit one (1) written proposal (the "Proposal") each year for
consideration at the annual ordinary meeting of the Company's shareholders,
A-24
provided that: (i) the Proposal is in the Chinese language and does not exceed
300 Chinese characters (including the reason(s) for the Proposal and all
punctuation marks) in length, (ii) the Proposal is submitted to the Company
prior to the expiration of the period for submission of Proposals (the
"Submission Period") announced by the Company (which Submission Period and the
place for eligible shareholders to submit the Proposal the Company undertakes to
announce publicly each year in a report on Form 6-K submitted to the Commission
prior to the commencement of the 60 days closed period prior to the annual
ordinary meeting of the Company's shareholders), (iii) only one (1) matter for
consideration at the annual ordinary meeting of the Company's shareholders shall
be allowed in each Proposal, and (iv) the proposing shareholder shall attend, in
person or by a proxy, such annual ordinary meeting of the Company's shareholders
whereat his or her or its Proposal is to be discussed and such proposing
shareholder, or his or her or its proxy, shall take part in the discussion of
such Proposal. As the holder of the Deposited Securities, the Depositary or its
nominee is entitled, provided the conditions of ROC law are satisfied, to submit
only one (1) Proposal each year in respect of all of the Shares held on deposit
as of the applicable Shareholder Proposal Record Date. Holders and Beneficial
Owners of ADSs do not under ROC law have individual rights to submit Proposals
to the Company for consideration at the annual ordinary meeting of the Company's
shareholders but may be able to submit Proposals to the Company for
consideration at the annual ordinary meeting of the Company's shareholders if
the Beneficial Owners (i) timely present their ADSs to the Depositary for
cancellation pursuant to the terms of the Deposit Agreement and become holders
of Shares in the ROC prior to the expiration of the Submission Period and prior
to the applicable Shareholder Proposal Record Date, and (ii) otherwise satisfy
the conditions of ROC law applicable to the submission of Proposals to the
Company for consideration at an annual ordinary meeting of the Company's
shareholders. Beneficial Owners of ADSs may not receive sufficient advance
notice of an annual ordinary meeting of the Company's shareholders to enable the
timely withdrawal of Shares to make a Proposal to the Company and may not be
able to re-deposit under the Deposit Agreement the Shares so withdrawn. The
Company has informed the Depositary that a Proposal shall only be voted upon at
the annual ordinary meeting of the Company's shareholders if the Proposal is
accepted by the board of directors of the Company as eligible in accordance with
Article 172-1 of the ROC Company Law and the Company's Articles of Incorporation
for consideration at an annual ordinary meeting of the Company's shareholders.
(b) Single Proposal by Depositary or its Nominee on behalf of
Beneficial Owners. Holders and Beneficial Owners of ADSs do not have individual
proposal rights. The Depositary will, if so requested by (a) Beneficial Owner(s)
as of the applicable ADS Record Date that own(s), individually or as a group, at
least 51% of the ADSs outstanding as of the applicable ADS Record Date (such
Beneficial Owner(s), the "Submitting Holder(s)"), submit to the Company for
consideration at the annual ordinary meeting of the Company's shareholders one
(1) Proposal each year, provided that: (i) the Proposal submitted to the
Depositary by the Submitting Holder(s) is in the Chinese language and does not
exceed 300 Chinese characters (including the reason(s) for the Proposal and all
punctuation marks) in length, (ii) the Proposal from the Submitting Holder(s) is
received by the Depositary at least two (2) Business Days prior to the
expiration of the Submission Period, (iii) the Proposal is accompanied by a
written certificate signed by each Submitting Holder, addressed to the
Depositary and the Company and in a form satisfactory to the Depositary and the
Company (the "First Proposal Certificate"), certifying, inter alia, (w) that
each Submitting Holder has only certified the said Proposal, (x) that the
Submitting Holder(s) own(s), individually or in the aggregate, at least 51% of
the ADSs outstanding as of the date the Proposal is submitted by the Submitting
Holder(s) to the Depositary (the "Proposal Submission Date"), (y) if the
Proposal Submission Date is (i) on or after the applicable ADS Record Date, that
the Submitting Holder(s) owned at least 51% of the ADSs outstanding as of the
applicable ADS Record Date, and (ii) prior to the applicable ADS Record Date,
that the Submitting Holder(s) will continue to own at least 51% of the ADSs
A-25
outstanding as of the applicable ADS Record Date and will provide the Second
Proposal Certificate, as defined below, and (z) the name(s) and address(es) of
the Submitting Holder(s) and the number of ADSs owned by each Submitting Holder
(together with certified evidence of each Submitting Holder's ownership of the
applicable ADSs as of the Proposal Submission Date, in the case of (y)(ii)
above, and the applicable ADS Record Date, in the case of (y)(i) above)), (iv)
if the Proposal Submission Date is prior to the applicable ADS Record Date, the
Depositary must also receive from the Submitting Holder(s), within five (5)
Business Days after the applicable ADS Record Date, a second written certificate
signed by each Submitting Holder, addressed to the Depositary and the Company
and in a form satisfactory to the Depositary and the Company (the "Second
Proposal Certificate"), certifying, inter alia, that the Submitting Holder(s)
continued to own at least 51% of the ADSs outstanding as of the applicable ADS
Record Date (together with certified evidence of each Submitting Holder's
ownership of the applicable ADSs as of such applicable ADS Record Date), (v) the
Proposal is accompanied by a joint and several irrevocable undertaking of all
Submitting Holders (which undertaking may be contained in the First Proposal
Certificate or the Second Proposal Certificate) that each such Submitting Holder
shall pay all fees and expenses incurred in relation to the submission of the
Proposal for voting at the annual ordinary meeting of the Company's shareholders
(including, but not limited to, the costs and expenses of the Submitting
Holder(s), or his, her, its or their representative, to attend the annual
ordinary meeting of the Company's shareholders), (vi) the Shares registered in
the name of the Depositary or its nominee as representative of the Holders and
Beneficial Owners constitute one percent (1%) or more of the total issued and
outstanding Shares of the Company as of the Shareholder Proposal Record Date,
(vii) such Proposal contains only one (1) matter for consideration at the annual
ordinary meeting of the Company's shareholders, and (viii) the Submitting
Holder(s), or his, her, its or their representative, upon the authorization by
the Depositary, attend(s) the annual ordinary meeting of the Company's
shareholders and take(s) part in the discussions of the Proposal in the Chinese
language, provided further that only one (1) individual may attend, and take
part in the discussion of the Proposal at such annual ordinary meeting on behalf
of a Submitting Holder or a group of Submitting Holders. Each Beneficial Owner
hereby agrees and acknowledges that (i) the chairman of the annual ordinary
meeting of the Company's Shareholders will treat the Proposal in accordance with
the Company Law and the rules governing the proceeding of such meeting,
including but not limited to, having such Proposal discussed and voted at such
meeting, regardless of whether the Submitting Holder(s) attends such meeting,
and (ii) in no event shall a Submitting Holder's, or his, her, its or their
representative's, presence at an annual ordinary meeting of the Company's
shareholders entitle such Submitting Holder(s), or his, her, its or their
representative, to vote the Shares represented by such Submitting Holder's ADSs
(or any other ADSs) at such annual ordinary meeting of the Company's
shareholders.
Upon the timely receipt by the Depositary of any Proposal which the
Depositary reasonably believes to be in full compliance with the immediately
preceding paragraph, the Depositary shall submit a copy of such Proposal and of
the other materials received from the Submitting Holder(s) to the Company prior
to the expiration of the Submission Period. Any Proposal so submitted as to
A-26
which the Depositary has not received within five (5) Business Days after the
applicable ADS Record Date any Second Proposal Certificate required under the
immediately preceding paragraph shall be deemed irrevocably withdrawn at the
expiration of such five (5) Business Day period. In the event the Depositary
receives more than one (1) Proposal by a Submitting Holder, or a group of
Submitting Holders, each of which appears to satisfy the requirements set forth
in the immediately preceding paragraph, the Depositary is hereby authorized and
instructed to disregard all Proposals received from such Submitting Holder(s),
except for the first Proposal received by the Depositary from such Submitting
Holder(s) and shall submit such Proposal to the Company for consideration at the
annual ordinary meeting of the Company's shareholders in accordance with the
terms of the Deposit Agreement. The Depositary shall not have any obligation to
verify the accuracy of the information contained in any document submitted to it
by the Submitting Holder(s). Neither the Depositary nor its nominee shall be
obligated to attend and speak at the annual ordinary meeting of the Company's
shareholders on behalf of the Submitting Holder(s).
Notwithstanding anything contained in the Deposit Agreement or any
ADR and except that the Depositary shall arrange, at the request of the Company
and at the Company's expense, for the mailing to Holders of copies of materials
that the Company has made available to the Depositary for such purpose, the
Depositary shall not be obligated to provide to the Holders or Beneficial Owners
of ADSs any notices relating to the proposal rights, including, without
limitation, notice of the Submission Period, or the receipt of any Proposal(s)
from Submitting Holders, or of the holdings of any ADSs by any persons, except
that the Depositary shall, upon a Holder's request, inform such Holder of the
total number of ADSs then issued and outstanding.
A-27
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ______________________________ whose taxpayer identification
number is _______________________ and whose address including postal zip code is
________________, the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated: Name: ________________________________
By:
Title:
NOTICE: The signature of the Holder to
this assignment must correspond with
the name as written upon the face of
the within instrument in every
particular, without alteration or
enlargement or any change whatsoever.
If the endorsement be executed by an
attorney, executor, administrator,
trustee or guardian, the person
executing the endorsement must give
his/her full title in such capacity
and proper evidence of authority to
act in such capacity, if not on file
with the Depositary, must be forwarded
with this Receipt.
All endorsements or assignments of
Receipts must be guaranteed by a
member of a Medallion Signature
Program approved by the Securities
Transfer Association, Inc.
SIGNATURE GUARANTEED
A-28
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].]
A-29
EXHIBIT B
FEE SCHEDULE
DEPOSITARY FEES AND RELATED CHARGES
All capitalized terms used but not otherwise defined herein shall have the
meaning given to such terms in the Deposit Agreement.
(I) Depositary Fees
The Company, the Holders, the Beneficial Owners and the persons
depositing Shares or surrendering ADSs for cancellation agree to pay the
following fees of the Depositary:
-------------------------------------------------------------------------------------------------------------------
Service Rate By Whom Paid
-------------------------------------------------------------------------------------------------------------------
(1) Issuance of ADSs upon deposit Up to U.S. $5.00 per 100 ADSs (or Person depositing Shares or person
of Shares (excluding fraction thereof) issued. receiving ADSs.
issuances as a result of
distributions described in
paragraph (4) below).
-------------------------------------------------------------------------------------------------------------------
(2) Delivery of Deposited Up to U.S. $5.00 per 100 ADSs (or Person surrendering ADSs for
Securities against surrender fraction thereof) surrendered. purpose of withdrawal of Deposited
of ADSs. Securities or person to whom
Deposited Securities are delivered.
-------------------------------------------------------------------------------------------------------------------
(3) Distribution of cash Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
dividends or other cash fraction thereof) held, unless
distributions (i.e., sale of prohibited by the exchange upon
rights and other which the ADSs are listed.
entitlements).
-------------------------------------------------------------------------------------------------------------------
(4) Distribution of ADSs pursuant Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
to (i) stock dividends or fraction thereof) held, unless
other free stock prohibited by the exchange upon
distributions, or which the ADSs are listed.
(ii) exercise of rights to
purchase additional ADSs.
-------------------------------------------------------------------------------------------------------------------
(5) Distribution of securities Up to U.S. $5.00 per 100 ADSs (or Person to whom distribution is made.
other than ADSs or rights to fraction thereof) held.
purchase additional ADSs
(i.e., spin-off shares).
-------------------------------------------------------------------------------------------------------------------
(6) Depositary Services. Up to U.S. $5.00 per 100 ADSs (or Person holding ADSs on applicable
fraction thereof) held, unless record date(s) established by the
prohibited by the exchange upon Depositary.
which the ADSs are listed.
-------------------------------------------------------------------------------------------------------------------
(7) Transfer of ADRs. U.S. $1.50 per certificate Person presenting certificate for
presented for transfer. transfer.
-------------------------------------------------------------------------------------------------------------------
B-1
(II) Charges
Holders, Beneficial Owners, persons depositing Shares 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 Shares or other Deposited Securities
on the share register and applicable to transfers of Shares or
other 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
Shares 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 Shares,
Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary, the
Custodian or any nominee in connection with the servicing or
delivery of Deposited Securities.
B-2
EXHIBIT C
FORM OF CERTIFICATION UPON WITHDRAWAL
EXHIBIT C-1
LONG FORM
Certification and Agreement of Persons Surrendering ADRs
for the Purpose of Withdrawal of Deposited Securities
Pursuant to Section 2.7 of the Deposit Agreement
Citibank, N.A.
Depositary Receipts Department
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Advanced Semiconductor Engineering, Inc.
We refer to the Amended and Restated Deposit Agreement, dated as of
September 29, 2000 (as amended from time to time, the "Deposit Agreement"),
among ADVANCED SEMICONDUCTOR ENGINEERING, INC. (the "Company"), CITIBANK, N.A.,
as Depositary thereunder, and Holders and Beneficial Owners from time to time of
American Depositary Shares (the "ADSs") evidenced by American Depositary
Receipts (the "ADRs") 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 for the purpose of withdrawal of the
Deposited Securities represented by the ADSs pursuant to Section 2.7 of the
Deposit Agreement.
2. We agree (or if we are acting for the account of another person,
such person has confirmed to us that it agrees) to comply with all requests from
the Company pursuant to ROC laws or regulations, the rules and requirements of
the Taiwan Stock Exchange, any other stock exchange on which the ADSs or the
Deposited Securities are, or may be, traded or listed, and the Articles of
Incorporation and Bylaws of the Company, which are made to provide information,
inter alia, as to the capacity in which we (or our client) hold(s) or own(s) the
ADSs or Deposited Securities and regarding the identity of any other person then
or previously interested in such ADSs or Deposited Securities, the nature of
such interest and various related matters, whether or not we (they) are holders
and/or beneficial owners of ADSs or Deposited Securities at the time of such
request.
C-1
3. 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 complete (b) in its
entirety.
(a)(i) Recipient of Deposited Securities withdrawn hereby
("Recipient") is a "Related Person" of the Company (as defined below).
or
(ii) The aggregate number of Deposited Securities to be received by
the Recipient upon the surrender of ADSs for the withdrawal of Deposited
Securities pursuant to Section 2.7 of the Deposit Agreement will exceed ten
percent (10%) of the total number of Deposited Securities currently on deposit
with the Custodian.*
* To determine the number of Deposited Securities on deposit, please visit the
Taiwan Stock Exchange's website at:
xxxx://xxxxx.xxx.xxx.xx/xxxxxx-xxxx/x00xxx00_x?xxxxx0&XXXXXxxxx
AND
(b)(i) Recipient hereby withdraws ____________ Deposited Securities
of the Company,
AND
(ii) Recipient has withdrawn an aggregate of _________ Deposited
Securities of the Company during this calendar month.
AND
(iii) We hereby certify (or if we are acting for the account of
another person, such person has confirmed to us that it certifies) 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: ___________________________
Name of Recipient: _________________________________________________
C-2
Nationality of Recipient: __________________________________________
Identity Number of Recipient (only required if Recipient is a ROC
person): _______________________________________________________________________
Number of ADSs surrendered hereby: _________________________________
Number of Deposited Securities withdrawn hereby: ___________________
The aggregate number of Deposited Securities Recipient has received upon
all withdrawals since execution of the Deposit Agreement: ________________
TDCC Book-Entry Account Number of Recipient: _______________________
TDCC Book-Entry Account Name: ______________________________________
Name of Custodian (only required if Recipient is a non-ROC person): ______
Address of Custodian: ______________________________________________
____________________________________________________________________
Contact Person at Custodian: _______________________________________
Telephone Number of Custodian: _____________________________________
Facsimile Number of Custodian: _____________________________________
Foreign Investor Investment I.D. (only required if Recipient is a
non-ROC person): _______________________________________________________________
____________________________________________________________________
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 information contained in paragraph 3 hereof that is applicable to it.
Date: ____________________
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: _______________________
Name
Title:
--------------------------------------------------------------------------------
C-3
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 general manager of the Company, or is the
spouse or a relative by blood or marriage to the chairman of
the board of directors or general manager of the Company
within the second degree (as defined under the Civil Code of
the Republic of China);
(ii) a foundation of which the funds donated from the Company
exceeds one-third of the foundation's total funds;
(iii) a director, supervisor or general manager, vice-general
manager, assistant general manager, or departmental head of
the Company directly reporting to the general manager of the
Company;
(iv) the spouse of a director, supervisor or general manager of the
Company; or
(v) a relative by blood or marriage to the Company's chairman of
the board of directors or general manager within the second
degree (as defined under the Civil Code of the Republic of
China).
or
(b) A person or entity in which the Company has invested, which investment
is accounted for by the equity method of accounting under generally accepted
accounting principles in the Republic of China (the "Equity Method"), or a
person or entity which uses the Equity Method to account for an investment in
the Company.
C-4
EXHIBIT C-2
SHORT FORM
Certification and Agreement of Persons Surrendering ADRs
for the Purpose of Withdrawal of Deposited Securities
Pursuant to Section 2.7 of the Deposit Agreement
Citibank, N.A.
Depositary Receipts Department
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Advanced Semiconductor Engineering, Inc.
We refer to the Amended and Restated Deposit Agreement, dated as of
September 29, 2000 (as amended from time to time, the "Deposit Agreement"),
among ADVANCED SEMICONDUCTOR ENGINEERING, INC. (the "Company"), CITIBANK, N.A.,
as Depositary thereunder, and Holders and Beneficial Owners from time to time of
American Depositary Shares (the "ADSs") evidenced by American Depositary
Receipts (the "ADRs") 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 for the purpose of withdrawal of the
Deposited Securities represented by the ADSs pursuant to Section 2.7 of the
Deposit Agreement.
2. We agree (or if we are acting for the account of another person,
such person has confirmed to us that it agrees) to comply with all requests from
the Company pursuant to ROC laws or regulations, the rules and requirements of
the Taiwan Stock Exchange, any other stock exchange on which the ADSs or the
Deposited Securities are, or may be, traded or listed, and the Articles of
Incorporation and Bylaws of the Company, which are made to provide information,
inter alia, as to the capacity in which we (or our client) hold(s) or own(s) the
ADSs or Deposited Securities and regarding the identity of any other person then
or previously interested in such ADSs or Deposited Securities, the nature of
such interest and various related matters, whether or not we (they) are holders
and/or beneficial owners of ADSs or Deposited Securities at the time of such
request.
3. We certify (or if we are acting for the account of another
person, such person has confirmed to us that it certifies) that the aggregate
number of Deposited Securities to be received by us (it) upon the surrender of
C-5
ADSs for the withdrawal of Deposited Securities pursuant to the Deposit
Agreement does not exceed ten percent (10%) of the total number of Deposited
Securities currently on deposit with the Custodian.(1)
4. We certify (or if we are acting for the account of another
person, such person has confirmed to us that it certifies) that we are (it is)
not a "Related Person" of the Company (as defined below).(2)
Date: ____________________
Very truly yours,
[NAME OF CERTIFYING ENTITY]
By: _______________________
Name
Title:
----------
(1) PLEASE NOTE THAT IN ORDER TO ASCERTAIN THE TOTAL NUMBER OF DEPOSITED
SECURITIES CURRENTLY ON DEPOSIT WITH THE CUSTODIAN, PLEASE VISIT THE TAIWAN
STOCK EXCHANGE'S WEBSITE AT:
xxxx://xxxxx.xxx.xxx.xx/xxxxxx-xxxx/x00xxx00_x?xxxxx0&XXXXXxxxx
PLEASE FURTHER NOTE THAT IF YOU CANNOT CERTIFY (OR IF YOU ARE ACTING FOR THE
ACCOUNT OF ANOTHER PERSON, SUCH PERSON HAS CONFIRMED TO YOU THAT IT CANNOT
CERTIFY) THAT THE AGGREGATE NUMBER OF DEPOSITED SECURITIES TO BE RECEIVED UPON
THE SURRENDER OF ADSs FOR THE WITHDRAWAL OF DEPOSITED SECURITIES PURSUANT TO THE
DEPOSIT AGREEMENT WILL NOT EXCEED TEN PERCENT (10%) OF THE TOTAL NUMBER OF
DEPOSITED SECURITIES CURRENTLY ON DEPOSIT WITH THE CUSTODIAN, YOU (IT) WILL NOT
BE ABLE TO SURRENDER ADSs IN ORDER TO WITHDRAW DEPOSITED SECURITIES (OR GIVE
INSTRUCTIONS TO DO SO) USING THIS FORM OF WITHDRAWAL CERTIFICATION AND INSTEAD,
YOU (IT) MUST COMPLETE AND DELIVER TO THE DEPOSITARY A LONG FORM OF WITHDRAWAL
CERTIFICATION THAT CAN BE FOUND ON THE DEPOSITARY'S WEBSITE.
(2) PLEASE NOTE THAT IF YOU CANNOT CERTIFY (OR IF YOU ARE ACTING FOR THE ACCOUNT
OF ANOTHER PERSON, SUCH PERSON HAS CONFIRMED TO YOU THAT IT CANNOT CERTIFY) THAT
YOU ARE (IT IS) NOT A "RELATED PERSON" OF THE COMPANY (AS DEFINED BELOW) AS SET
FORTH IN PARAGRAPH 4 ABOVE AND YOU (IT) WISH(ES) TO SURRENDER ADSs OR GIVE
WITHDRAWAL INSTRUCTIONS FOR THE PURPOSE OF WITHDRAWAL OF THE DEPOSITED
SECURITIES PURSUANT TO THE DEPOSIT AGREEMENT, YOU (IT) WILL NOT BE ABLE TO
SURRENDER ADSs IN ORDER TO WITHDRAW DEPOSITED SECURITIES (OR GIVE INSTRUCTIONS
TO DO SO) USING THIS FORM OF WITHDRAWAL CERTIFICATION AND INSTEAD, YOU (IT) MUST
COMPLETE AND DELIVER TO THE DEPOSITARY A LONG FORM OF WITHDRAWAL CERTIFICATION
THAT CAN BE FOUND ON THE DEPOSITARY'S WEBSITE.
C-6
--------------------------------------------------------------------------------
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 general manager of the Company, or is the
spouse or a relative by blood or marriage to the chairman of
the board of directors or general manager of the Company
within the second degree (as defined under the Civil Code of
the Republic of China);
(ii) a foundation of which the funds donated from the Company
exceeds one-third of the foundation's total funds;
(iii) a director, supervisor or general manager, vice-general
manager, assistant general manager, or departmental head of
the Company directly reporting to the general manager of the
Company;
(iv) the spouse of a director, supervisor or general manager of the
Company; or
(v) a relative by blood or marriage to the Company's chairman of
the board of directors or general manager within the second
degree (as defined under the Civil Code of the Republic of
China).
or
(b) A person or entity in which the Company has invested, which investment
is accounted for by the equity method of accounting under generally accepted
accounting principles in the Republic of China (the "Equity Method"), or a
person or entity which uses the Equity Method to account for an investment in
the Company.
C-7
