CHUNGHWA TELECOM CO., LTD. AND JPMORGAN CHASE BANK, N.A. As Depositary AND HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS Amended and Restated Deposit Agreement Dated as of November , 2007
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CHUNGHWA
TELECOM CO., LTD.
AND
JPMORGAN
CHASE BANK, N.A.
As
Depositary
AND
HOLDERS
AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of November , 2007
==============================================================
AMENDED
AND RESTATED DEPOSIT AGREEMENT
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of November , 2007 among CHUNGHWA
TELECOM CO., LTD., a company incorporated under the laws of the Republic of
China (herein called the “Company”), JPMORGAN CHASE BANK, N.A., a national
banking association organized under the laws of the United States (herein called
the “Depositary”), and all Holders and Beneficial Owners from time to time of
American Depositary Receipts issued hereunder.
WITNESSETH
:
WHEREAS,
the Company and The Bank of New York entered into a Deposit Agreement dated
as
of July 17, 2003 (the "Old Deposit Agreement") to provide for the deposit of
Shares of the Company with the Bank of New York or with the Custodian as agent
of the Bank of New York for the purposes set forth in such Old Deposit
Agreement, for the creation of American depositary shares representing the
Shares so deposited and for the execution and delivery of American depositary
receipts ("Old Receipts") evidencing the American depositary
shares;
WHEREAS,
pursuant to the terms of Section 5.4 of the Old Deposit Agreement, the Company
has removed The Bank of New York as depositary and has appointed JPMorgan Chase
Bank, N.A. as successor depositary thereunder;
WHEREAS,
the Company and JPMorgan Chase Bank, N.A., in its capacity as successor
depositary under the Old Deposit Agreement, now wish to amend and restate the
Old Deposit Agreement and the Old Receipts;
WHEREAS,
the Company desires to provide, as hereinafter set forth in this Deposit
Agreement, for the deposit of Shares (as hereinafter defined) of the Company
from time to time with the Depositary or with the Custodian (as hereinafter
defined) as agent of the Depositary for the purposes set forth in this Deposit
Agreement, for the creation of American Depositary Shares representing the
Shares so deposited and for the execution and delivery of American Depositary
Receipts evidencing the American Depositary Shares; and
WHEREAS,
the American Depositary Receipts (as hereinafter defined) are to be
substantially in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement;
NOW,
THEREFORE, in consideration of the premises, it is agreed by and between the
parties hereto as follows:
1
ARTICLE
1.
DEFINITIONS
The
following definitions shall for all purposes, unless otherwise clearly
indicated, apply to the respective terms used in this Deposit
Agreement:
SECTION
1.1 American
Depositary Shares; ADSs.
The
terms
"American Depositary Shares" or "ADSs" shall mean the securities representing
the interests in the Deposited Securities (as hereinafter defined) and evidenced
by the Receipts issued hereunder and shall include Temporary ADSs unless the
context otherwise requires. Each American Depositary Share shall represent
the number of Shares specified on Exhibit A annexed hereto, until there shall
occur a distribution upon Deposited Securities covered by Section 4.03 or a
change in Deposited Securities covered by Section 4.08 with respect to which
additional Receipts are not executed and delivered, and thereafter American
Depositary Shares shall evidence the amount of Shares or Deposited Securities
specified in such Sections.
SECTION
1.2 Beneficial
Owner.
The
term
"Beneficial Owner" shall mean each person owning from time to time any
beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION
1.3 Certificate
of Payment.
The
term
"Certificate of Payment" shall mean the Certificate of Payment, which may be
delivered by the Company from time to time, evidencing the irrevocable right
to
receive definitive share certificates representing the Shares delivered by
or on
behalf of the Company in connection with an offering of Shares by the Company
and registered in the name of the Depositary. The Company shall instruct
the Depositary in writing whenever such an offering occurs, the Shares of which
may be evidenced by Certificates of Payment.
SECTION
1.4 Commission.
The
term
"Commission" shall mean the Securities and Exchange Commission of the United
States or any successor governmental agency in the United States.
SECTION
1.5 Company.
The
term
"Company" shall mean Chunghwa Telecom Co., Ltd., a company limited by shares
organized under the laws of the R.O.C., and its successors.
2
SECTION
1.6 Custodian.
The
term
"Custodian" shall mean Taipei, Taiwan office of the JPMorgan
Chase Bank, N.A.,
a bank
organized under the laws of the R.O.C., as agent of the Depositary for the
purposes of this Deposit Agreement, and any other firm or corporation which
may
hereafter be appointed by the Depositary pursuant to the terms of Section 5.05,
as substitute or additional custodian or custodians hereunder, as the context
shall require and shall also mean all of them collectively.
SECTION
1.7 Deliver,
Deposit, Surrender, Transfer or Withdrawal.
The
terms
“deliver”, “deposit”, “surrender”, “transfer” or “withdraw”, when used (i) with
respect to Shares: (a) in the case of book-entry Shares, shall refer to an
entry or entries in an account or accounts maintained by institutions authorized
under applicable law to effect transfers of securities, or (b) in the case
of
certificated Shares, to the physical delivery, deposit, withdrawal or transfer
of certificates representing the Shares and (ii) with respect to American
Depositary Shares evidenced by Receipts, (a) in the case of American Depositary
Shares available in book-entry form, shall refer to appropriate adjustments
in
the records maintained by (1) the Depositary, (2) The Depository Trust Company
(“DTC”) or its nominee, or (3) institutions that have accounts with DTC, as
applicable, or (b) otherwise, shall refer to the physical delivery, deposit,
surrender, transfer or withdrawal of such American Depositary Shares evidenced
by Receipts.
SECTION
1.8 Deposit
Agreement.
The
term
"Deposit Agreement" shall mean this Agreement, as the same may be amended from
time to time in accordance with the provisions hereof.
SECTION
1.9 Depositary;
Depositary's Office.
The
term
"Depositary" shall mean JPMorgan Chase Bank, N.A., a national banking
association organized under the laws of the United States. The term
"Depositary's Office", when used with respect to the Depositary, shall mean
the
office of the Depositary which at the date of this Agreement is ▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
SECTION
1.10 Deposited
Securities.
The
term
"Deposited Securities" as of any time shall mean Shares at such time deposited
or deemed to be deposited under this Deposit Agreement and any and all other
securities, property and cash received by the Depositary or the Custodian in
respect thereof and at such time held hereunder, subject as to cash to the
provisions of Section 4.05.
3
SECTION
1.11 Direct
Registration System
The
term
"Direct
Registration System"
means
the system for the uncertificated registration of ownership of securities
established by The Depository Trust Company ("DTC") and utilized by the
Depositary pursuant to which the Depositary may record the ownership of
ADRs
without the issuance of a certificate, which ownership shall be evidenced
by
periodic statements issued by the Depositary to the Holders entitled thereto.
For purposes hereof, the Direct Registration System shall include access
to the
Profile Modification System maintained by DTC which provides for automated
transfer of ownership between DTC and the Depositary.
SECTION
1.12 Dollars;
NT$ or NT Dollars
The
term
“US$” or "Dollars" shall mean United States dollars. The term "NT$” or “NT
Dollars" shall mean New Taiwan Dollars.
SECTION
1.13 Foreign
Registrar.
The
term
"Foreign Registrar" shall mean the entity that presently carries out the
duties
of registrar for the Shares or any successor as registrar for the Shares
and any
other appointed agent of the Company for the transfer and registration
of
Shares.
SECTION
1.14 Holder.
The
term
"Holder" shall mean the person in whose name a Receipt is registered on
the
books of the Depositary maintained for such purpose.
SECTION
1.15 Receipts;
ADRs.
The
terms
"Receipts" or "ADRs" shall mean the American Depositary Receipts issued
hereunder evidencing American Depositary Shares and shall include Temporary
ADRs
unless the context requires otherwise. ADRs
may
be either in physical certificated form or Direct Registration ADRs. ADRs
in
physical certificated form, and the terms and conditions governing the
Direct
Registration ADRs (as hereinafter defined), shall be substantially in the
form
of Receipt annexed hereto in Exhibit A. The term "Direct Registration ADR"
means
an ADR, the ownership of which is recorded on the Direct Registration System.
References to "ADRs" shall include certificated ADRs and Direct Registration
ADRs, unless the context otherwise requires.
SECTION
1.16 Registrar.
The
term
"Registrar" shall mean any bank or trust company having an office in the
Borough
of Manhattan, The City of New York, which shall be appointed by the Depositary
to register Receipts and transfers of Receipts as herein provided.
4
SECTION
1.17 Restricted
Securities.
The
term
"Restricted Securities" shall mean Shares, or Receipts representing such
Shares,
which are acquired directly or indirectly from the Company or its affiliates
(as
defined in Rule 144 under the Securities Act of 1933) in a transaction
or chain
of transactions not involving any public offering or which are subject
to resale
limitations under Regulation D under that Act or both, or which are held
by an
officer, director (or persons performing similar functions) or other affiliate
of the Company, or which would require registration under the Securities
Act in
connection with the offer and sale thereof in the United States, or which
are
subject to other restrictions on sale or deposit under the laws of the
United
States or the R.O.C., or under a shareholder agreement or the Articles
of
Incorporation of the Company.
SECTION
1.18 R.O.C.
or Taiwan.
The
terms
"R.O.C." or "Taiwan" shall mean the Republic of China.
SECTION
1.19 Securities
Act of 1933.
The
term
"Securities Act of 1933" shall mean the United States Securities Act of
1933, as
from time to time amended.
SECTION
1.20 Shares.
The
term
"Shares" shall mean common shares of the Company, heretofore validly issued
and
outstanding and fully paid, nonassessable and free of any pre-emptive rights
of
the holders of outstanding Shares or hereafter validly issued and outstanding
and fully paid, nonassessable and free of any pre-emptive rights of the
holders
of outstanding Shares.
SECTION
1.21 Temporary
ADRs.
The
term
“Temporary ADRs”, as defined in Section 2.10, shall mean the Temporary American
Depositary Receipts issued hereunder evidencing Temporary ADSs.
SECTION
1.22 Temporary
ADSs.
The
term
“Temporary ADSs”, as defined in Section 2.10, shall mean the securities
representing interests in Certificates of Payment.
5
ARTICLE
2.
FORM
OF
RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER AND SURRENDER
OF
RECEIPTS
SECTION
2.1 Form
and Transferability of Receipts.
Definitive
Receipts shall be substantially in the form set forth in Exhibit A annexed
to
this Deposit Agreement with appropriate insertions, modifications and omissions,
as hereinafter provided. Receipts in certificated form shall be executed
by the Depositary by the manual or facsimile signature of a duly authorized
officer of the Depositary. Receipts in certificated form bearing the facsimile
signature of anyone who was at the time of execution a duly authorized
officer
of the Depositary shall bind the Depositary, notwithstanding that such
officer
has ceased to hold such office prior to the delivery of such Receipts.
The
Depositary shall maintain books and records on which each Receipt so executed
and delivered as hereinafter provided and the transfer of each such Receipt
shall be registered. Direct Registration ADRs shall, subject to the terms
of this Deposit Agreement, be transferable upon the same terms and conditions
as
uncertificated securities under New York law. The Depositary may from time
to
time, upon notice to the Holders of Direct Registration ADRs affected thereby
and the Company, establish rules and amend or supplement existing rules,
as may
be deemed reasonably necessary to maintain the Direct Registration System
and
for the issuance of Direct Registration ADRs on behalf of Holders, provided
that
such rules do not conflict with the terms of this Deposit Agreement and
applicable law. Notwithstanding anything herein to the contrary, the Depositary
shall not issue Temporary ADRs in physical certificated form and Holders
of
Temporary ADRs shall not be entitled to receive definitive Temporary ADRs,
except as may be required by any book-entry settlement system in which
the
Temporary ADSs are accepted for settlement.
Notwithstanding
anything in this Deposit Agreement or in any Receipt to the contrary, ADSs
shall
be evidenced by Direct Registration ADRs, unless certificated ADRs are
specifically requested by the Holder.
On
or
before the date which is three months from the date of an offering of Shares,
each Temporary ADR representing an interest in a Certificate of Payment
shall
bear the following legend:
PURSUANT
TO THE LAWS OF THE REPUBLIC OF CHINA, THE TEMPORARY AMERICAN DEPOSITARY
SHARES
REPRESENTING CERTIFICATES OF PAYMENT EVIDENCED BY THIS TEMPORARY AMERICAN
DEPOSITARY RECEIPT MAY NOT BE SURRENDERED PURSUANT TO SECTION 2.05 OF THE
DEPOSIT AGREEMENT, AND SHARES, INCLUDING EVIDENCES OF THE RIGHT TO RECEIVE
SHARES, MAY NOT BE WITHDRAWN. ON THE DATE WHICH IS THREE MONTHS FROM THE
DATE OF THE OFFERING OF SHARES IN CONNECTION WITH WHICH THIS TEMPORARY
AMERICAN
DEPOSITARY RECEIPT REPRESENTING AN INTEREST IN A CERTIFICATE OF PAYMENT
WAS
ISSUED, AND AFTER RECEIPT BY THE CUSTODIAN OF CERTIFICATES REPRESENTING
COMMON
SHARES, AND ALL TIMES SUBSEQUENT THERETO, HOLDERS AND BENEFICIAL OWNERS
OF THIS
TEMPORARY ADR SHALL THEREAFTER BE HOLDERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY RECEIPTS ("ADRs") ISSUED HEREUNDER AND SHALL HAVE ALL OF THE
RIGHTS
AND OBLIGATIONS SET FORTH UNDER THIS DEPOSIT AGREEMENT AND THE
ADRs.
6
TEMPORARY
ADRs REPRESENTING CERTIFICATES OF PAYMENT AND THE TEMPORARY ADSs EVIDENCED
THEREBY ARE IDENTICAL TO AND CONFER ALL OF THE RIGHTS AND OBLIGATIONS SET
FORTH
IN THE DEPOSIT AGREEMENT RELATING TO RECEIPTS AND AMERICAN DEPOSITARY SHARES
EVIDENCED THEREBY; PROVIDED, HOWEVER, THAT (1) HOLDERS OF TEMPORARY ADRs
REPRESENTING CERTIFICATES OF PAYMENT WILL NOT BE ABLE TO SURRENDER SUCH
TEMPORARY ADRs FOR THE PURPOSE OF WITHDRAWAL OF THE UNDERLYING DEPOSITED
SECURITIES AND (2) TEMPORARY ADRs SHALL BEAR ONE OR MORE SEPARATE CUSIP
NUMBERS
THAT IS DIFFERENT FROM ANY CUSIP NUMBER THAT IS OR MAY BE ASSIGNED TO THE
ADRs.
In
addition to the foregoing, the Receipts may be endorsed with or have
incorporated in the text thereof such legends or recitals or modifications
not
inconsistent with the provisions of this Deposit Agreement as may be required
by
the Depositary or required to comply with any applicable law or regulations
thereunder or with the rules and regulations of any securities exchange
upon
which American Depositary Shares may be listed or to conform with any usage
with
respect thereto, or to indicate any special limitations or restrictions
to which
any particular Receipts are subject by reason of the date of issuance of
the
underlying Deposited Securities or otherwise.
Title
to
a certificated Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in
the case
of a negotiable instrument under the laws of the State of New York; provided,
however,
that
the Depositary, notwithstanding any notice to the contrary, may treat the
Holder
thereof as the absolute owner thereof for the purpose of determining the
person
entitled to distribution of dividends or other distributions or to any
notice
provided for in this Deposit Agreement and for all other purposes.
SECTION
2.2 Deposit
of Shares.
The
deposit of Shares in connection with an offering of Shares will be made
on
behalf of the Company by delivery to the Custodian on behalf of the Depositary
of a Certificate of Payment, in form and substance satisfactory to the
Depositary, evidencing the irrevocable right to receive physical share
certificates representing Shares registered in the name of the Depositary
or its
nominee. The Company agrees to issue and deliver the physical share
certificates represented by such Certificate of Payment in respect of such
deposit on or before three months from the date of issuance of such Shares
pursuant to the applicable offering.
7
Subject
to the limitations on the issuance of additional ADSs described below,
and
subject terms and conditions of this Deposit Agreement, Shares or evidence
of
rights to receive Shares may be deposited by delivery thereof to any Custodian
hereunder, accompanied by any appropriate instrument or instruments of
transfer,
or endorsement, in form satisfactory to the Custodian, together with all
such
certifications as may be required by the Depositary or the Custodian in
accordance with the provisions of this Deposit Agreement, and, if the Depositary
requires, together with a written order directing the Depositary to execute
and
deliver to, or upon the written order of, the person or persons stated
in such
order, a Receipt or Receipts through the Direct Registration System (or,
if
specifically requested, certificated Receipts for the number of American
Depositary Shares representing such deposit. No Share shall be accepted
for deposit unless accompanied by evidence reasonably satisfactory to the
Depositary (which may be an opinion of counsel) that any necessary approval
has
been granted by any governmental body in the R.O.C. If required by the
Depositary, Shares presented for deposit at any time, whether or not the
transfer books of the Company or the Foreign Registrar, if applicable,
are
closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the
Shares
are or have been recorded may thereafter receive upon or in respect of
such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
The
Depositary and the Company have been advised that under current R.O.C.
law, no
deposits of Shares may be made in the depositary receipt facility, and
no ADSs
may be issued against such deposits, without specific approval of the R.O.C.
Financial Supervisory Commission (the “FSC”) except in connection with the
offering and the issuance of additional ADSs in connection with (i) dividends
on
or free distributions of Shares, (ii) the exercise by Holders of their
pre-emptive rights applicable to Shares evidenced by ADSs in the event
of
capital increases for cash or (iii) as permitted hereunder, the purchase
directly by any person or through the Depositary of Shares on the Taiwan
Stock
Exchange for deposit in the depositary receipt facility, provided
that the
total number of ADSs outstanding after an issuance described in clause
(iii)
does not exceed the number of issues ADSs previously approved by the FSC
(plus
any ADSs created pursuant to clauses (i) and (ii) above). The Depositary
and the Company have been advised that under current R.O.C. law, issuances
under
clause (iii) above will be permitted only to the extent that previously
issued
ADSs have been canceled and the underlying Shares have been withdrawn from
the
depositary receipt facility. The Depositary may not accept any Shares for
deposit pursuant to clause (iii) unless it receives evidence satisfactory
(which
may be in the form of opinions of R.O.C. and U.S. counsel) to the effect
that
such Shares may lawfully be deposited pursuant to the Deposit Agreement
and are
not Restricted Securities. The laws of the R.O.C. applicable to the
deposit of Shares may change from time to time. There can be no assurance
that current laws will continue in effect or that future changes of R.O.C.
law
will not adversely affect the ability to deposit Shares hereunder.
8
The
Depositary and the Custodian will each refuse to accept for deposit Shares
or
other securities that it reasonably believes to be Restricted Securities.
Persons depositing Shares, other than in connection with an issuance
approved by the FSC or by the Company depositing Shares constituting a
free
distribution of Shares by way of dividend or stock split, will be required
to
present appropriate evidence (including opinions of counsel if requested)
satisfactory to the Depositary and the Custodian that such Shares and the
issuance of the ADRs evidencing the ADSs issuable upon such deposit are
not
Restricted Securities.
At
the
request and risk and expense of any person proposing to deposit Shares,
and for
the account of such person, the Depositary may receive certificates for
Shares
to be deposited, together with the other instruments herein specified,
for the
purpose of forwarding such Share certificates to the Custodian for deposit
hereunder.
Upon
each
delivery to a Custodian of a certificate or certificates for Shares to
be
deposited hereunder, together with the other documents above specified,
such
Custodian shall, as soon as transfer and recordation can be accomplished,
present such certificate or certificates to the Company or the Foreign
Registrar, if applicable, for transfer and recordation of the Shares being
deposited in the name of the Depositary or its nominee or such Custodian
or its
nominee.
Deposited
Securities shall be held by the Depositary or by a Custodian for the account
and
to the order of the Depositary or at such other place or places as the
Depositary shall determine.
SECTION
2.3 Execution
and Delivery of Receipts.
Upon
receipt by any Custodian of any deposit pursuant to Section 2.02 hereunder
(and
in addition, if the transfer books of the Company or the Foreign Registrar,
if
applicable, are open, the Depositary may in its sole discretion require
a proper
acknowledgment or other evidence from the Company that any Deposited Securities
have been recorded upon the books of the Company or the Foreign Registrar,
if
applicable, in the name of the Depositary or its nominee or such Custodian
or
its nominee), together with the other documents required as above specified,
such Custodian shall notify the Depositary of such deposit and the person
or
persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares
to
be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex
or
facsimile transmission. Upon receiving such notice from such Custodian, or
upon the receipt of Shares by the Depositary, the Depositary, subject to
the
terms and conditions of this Deposit Agreement, shall deliver at its
Depositary's Office, to or upon the order of the person or persons entitled
thereto, a Direct Registration Receipt or Receipts, registered in the name
or
names and evidencing any authorized number of American Depositary Shares
requested by such person or persons, but only upon payment to the Depositary
of
the fees and expenses of the Depositary for the execution and delivery
of such
Receipt or Receipts as provided in Section 5.09, and of all taxes and
governmental charges and fees payable in connection with such deposit and
the
transfer of the Deposited Securities.
9
Notwithstanding
anything in this Section 2.03 to the contrary, the Depositary shall execute
and
deliver Temporary ADRs evidencing Temporary ADSs only in respect of a deposit
of
a Certificate of Payment in connection with an offering of Shares.
SECTION
2.4 Transfer
of Receipts; Combination and Split-up of Receipts.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
register transfers of Receipts on its transfer books from time to time,
upon any
surrender of a Receipt, by the Holder in person or by a duly authorized
attorney, properly endorsed or accompanied by proper instruments of transfer,
and duly stamped as may be required by the laws of the State of New York
and of
the United States of America. Thereupon the Depositary shall execute a new
Receipt or Receipts and deliver the same to or upon the order of the person
entitled thereto.
The
Depositary, subject to the terms and conditions of this Deposit Agreement,
shall
upon surrender of a Receipt or Receipts for the purpose of effecting a
split-up
or combination of such Receipt or Receipts, execute and deliver a new Receipt
or
Receipts for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as the
Receipt or Receipts surrendered.
At
the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated Receipt with a Direct Registration Receipt, or vice versa,
execute
and deliver a certificated Receipt or a Direct Registration Receipt, as
the case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or Direct Registration Receipt, as
the
case may be, substituted. Holders
of Direct Registration ADRs 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
Direct
Registration ADRs (or any portion thereof) for certificated ADRs of the
same
type and class, subject in each case to the terms of this Deposit Agreement,
applicable laws and any rules the Depositary may establish from time to
time in
respect of the Direct Registration ADRs. Holders of certificated ADRs shall
have
the right to exchange the certificated ADRs (or any portion thereof) for
Direct
Registration ADRs of the same type and class upon (i) the due surrender of
the certificated ADRs to the Depositary for such purpose, and (ii) the
presentation of a written request to such effect to the Depositary, subject
in
each case to (a) all liens and restrictions noted on the certificated
ADR(s) and all adverse claims of which the Depositary then has written
notice,
(b) the terms of this Deposit Agreement and the rules that the Depositary
may establish from time to time for such purposes thereunder, and
(c) applicable law.
10
The
Depositary may appoint one or more co-transfer agents for the purpose of
effecting transfers, combinations and split-ups of Receipts at designated
transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer agent may require evidence of authority and compliance
with applicable laws and other requirements by Holders or persons entitled
to
Receipts and will be entitled to protection and indemnity to the same extent
as
the Depositary.
SECTION
2.5 Surrender
of Receipts and Withdrawal of Shares.
Provided
that the Company has delivered to the Custodian physical share certificates
represented by the Certificate of Payment in respect of a deposit of Shares
in
connection with an offering, upon receipt
at the Depositary's Office of proper instruments of transfer or upon
surrender
at the Depositary's Office of an ADR for the purpose of withdrawal of the
Deposited Securities represented by the ADSs evidenced by such ADR, upon
payment
of the fee of the Depositary for the surrender and cancellation of ADRs
as
provided in Section 5.09 and payment of all taxes (including any securities
transaction tax) and governmental charges payable in connection with such
surrender and withdrawal of the Deposited Securities, and subject to the
terms
and conditions of this Deposit Agreement and the transfer restrictions
applicable to the Shares, if any, the Holder of such Receipt shall be entitled
to delivery, to him or upon his order, of the amount of Deposited Securities
at
the time represented by the American Depositary Shares evidenced by such
Receipt. Delivery of such Deposited Securities may be made by the delivery
of
(a) certificates in the name of such Holder or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of
transfer
to such Holder or as ordered by him and (b) any other securities, property
and cash to which such Holder is then entitled in respect of such Receipts
to
such Holder or as ordered by him. Such delivery shall be made, as
hereinafter provided, without unreasonable delay.
A
Receipt
surrendered for such purposes may be required by the Depositary to be properly
endorsed in blank,
to the
extent a certificated Receipt is presented, or
accompanied by proper instruments of transfer in blank, and if the Depositary
so
requires, the Holder thereof shall execute and deliver to the Depositary
a
written order directing the Depositary to cause the Deposited Securities
being
withdrawn to be delivered to or upon the written order of a person or persons
designated in such order. Thereupon the Depositary shall direct the
Custodian to deliver at the Taipei, Taiwan office of such Custodian, subject
to
Sections 2.06, 3.01 and 3.02 and to the other terms and conditions of this
Deposit Agreement, to or upon the written order of the person or persons
designated in the order delivered to the Depositary as above provided,
the
number of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt, except that the Depositary may make delivery
to such
person or persons at the Depositary's Office of any dividends or distributions
with respect to the Deposited Securities represented by the American Depositary
Shares evidenced by such Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the Depositary.
11
At
the
request, risk and expense of any Holder so surrendering a Receipt, and
for the
account of such Holder, the Depositary shall direct the Custodian to forward
any
cash or other property (other than rights) comprising, and forward a certificate
or certificates and other proper documents of title for, the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt to the Depositary for delivery at the Depositary's Office. Such
direction shall be given by letter or, at the request, risk and expense
of such
Holder, by cable, telex or facsimile transmission.
The
Depositary shall not deliver Deposited Securities to a Holder in accordance
with
this Section 2.05 unless such Holder presents evidence of payment of any
securities transaction tax which may be imposed under R.O.C. law, unless
the
Company shall have advised the Depositary that no such tax is assessable
in
connection with the withdrawal of Deposited Securities hereunder.
Notwithstanding
anything to the contrary in this Section 2.05, the Holder of Temporary
ADSs
representing an interest in the Certificate of Payment deposited in connection
with an offering shall not be entitled to withdraw any Deposited
Securities.
SECTION
2.6 Limitations
on Execution and Delivery, Transfer and Surrender of Receipts.
As
a
condition precedent to the execution and delivery, registration of transfer,
split-up, combination or surrender of any Receipt or withdrawal of any
Deposited
Securities, the Depositary, Custodian or Registrar may require payment
from the
depositor of Shares or the presenter of the Receipt of a sum sufficient
to
reimburse it for any tax (including any securities transaction tax) or
other
governmental charge and any stock transfer or registration fee with respect
thereto (including any such tax or charge and fee with respect to Shares
being
deposited or withdrawn) and any applicable fees as herein provided, may
require
the production of proof satisfactory to it as to the identity and genuineness
of
any signature and may also require compliance with any reasonable regulations
the Depositary may establish consistent with the provisions of this Deposit
Agreement, including, without limitation, this Section 2.06.
The
delivery of Receipts against deposit of Shares generally or against deposit
of
particular Shares may be suspended, or the 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 Depositary are closed, or if any such action is deemed necessary
or
advisable by the Depositary or the Company at any time or from time to
time
because of any requirement of law or of any government or governmental
body or
commission, or under any provision of this Deposit Agreement, or for any
other
reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement, the
surrender of outstanding Receipts and withdrawal of Deposited Securities
may not
be suspended subject only to (i) temporary delays caused by closing the
transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting or the payment of dividends, (ii)
the
payment of fees, taxes and similar charges, and (iii) compliance with any
U.S.
or foreign laws or governmental regulations relating to the Receipts or
to the
withdrawal of the Deposited Securities. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under
this
Deposit Agreement any Shares required to be registered under the provisions
of
the Securities Act of 1933, unless a registration statement is in effect
as to
such Shares.
12
SECTION
2.7 Lost
Receipts, etc.
In
case
any certificated
Receipt
shall be mutilated, destroyed, lost or stolen, the Depositary shall execute
and
deliver a new Direct Registration Receipt of like tenor in exchange and
substitution for such mutilated certificated Receipt upon cancellation
thereof,
or in lieu of and in substitution for such destroyed, lost or stolen
certificated Receipt. Before the Depositary shall execute and deliver a
new Direct Registration Receipt in substitution for a destroyed, lost or
stolen
certificated Receipt, the Holder thereof shall have (a) filed with the
Depositary (i) a request for such execution and delivery before the Depositary
has notice that the Receipt has been acquired by a bona fide purchaser
and (ii)
a sufficient indemnity bond and (b) satisfied any other reasonable requirements
imposed by the Depositary.
SECTION
2.8 Cancellation
and Destruction of Surrendered Receipts.
All
Receipts surrendered to the Depositary shall be cancelled by the Depositary.
The Depositary is authorized to destroy Receipts so
cancelled.
SECTION
2.9 Pre-Release
of Receipts.
Notwithstanding
Section 2.03 hereof, the Depositary may execute and deliver Receipts prior
to
the receipt of Shares pursuant to Section 2.02 (a "Pre-Release"). The
Depositary may, pursuant to Section 2.05, deliver Shares upon the receipt
and
cancellation of Receipts which have been Pre-Released, whether or not such
cancellation is prior to the termination of such Pre-Release or the Depositary
knows that such Receipt has been Pre-Released. The Depositary may receive
Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation
from
the person to whom Receipts or Shares are to be delivered, that such person,
or
its customer, owns the Shares or Receipts to be remitted, as the case may
be, (b) at all times fully collateralized with cash, U.S. 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 number of American Depositary Shares which are
outstanding at any time as a result of Pre-Releases will not normally exceed
thirty percent (30%) of the Shares deposited hereunder; provided,
however,
that
the Depositary reserves the right to change or disregard such limit from
time to
time as it deems appropriate.
13
The
Depositary may retain for its own account any compensation received by
it in
connection with the foregoing.
SECTION
2.10 Temporary
ADRs, Temporary ADSs, Exchange of Temporary ADSs for ADSs.
In
the
event the Company or any of its affiliates offers Shares in the form of
ADSs and
such ADSs initially represent Certificates of Payment, such ADSs (hereinafter,
“Temporary ADSs”) shall be assigned a unique CUSIP number until such time as the
Temporary ADSs no longer represent Certificates of Payment. The Company
undertakes to make Shares available in exchange for Certificates of Payment.
The Depositary shall thereupon surrender any Certificates of Payment then
eligible for exchange with the Company and the Company shall deliver Shares
to
the Depositary in exchange therefor. Upon receipt by the Depositary or the
Custodian of Shares in exchange for Certificates of Payment, the Depositary
will
instruct DTC to transfer the number of Temporary ADSs held by DTC participants
under the relevant number assigned to the non-temporary ADSs (the “Standard
ADSs”), and thenceforth such ADSs shall bear the same CUSIP and ISIN numbers
as
the Standard ADSs. Owners and Beneficial Owners of such Temporary ADSs
shall
thereafter be Owners and Beneficial Owners of Standard ADSs and shall have
all
of the rights and obligations set forth under the Deposit Agreement and
the ADRs
evidencing the Standard ADSs.
ARTICLE
3.
CERTAIN
OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION
3.1 Filing
Proofs, Certificates and Other Information.
Any
person presenting Shares for deposit or any Holder or Beneficial Owner
of a
Receipt may be required from time to time to file with the Depositary or
the
Custodian such proof of citizenship or residence, exchange control approval,
legal
or
beneficial ownership or
such
information relating to the registration on the books of the Company or
the
Foreign Registrar, if applicable, compliance
with applicable laws and the terms of this Deposit Agreement or other
information, to
execute such certificates and to make such representations and warranties,
as
the Depositary may deem necessary or proper. The Depositary may withhold
the
delivery or registration of transfer of any Receipt or the distribution
of any
dividend or sale or distribution of rights or of the proceeds thereof or
the
delivery of any Deposited Securities until such proof or other information
is
filed or such certificates are executed or such representations and warranties
made and any required exchange control approval obtained.
14
SECTION
3.2 Liability
of Holder or Beneficial Owner for Taxes.
If
any
tax or other governmental charge shall become payable by the Custodian
or the
Depositary with respect to any Receipt or any Deposited Securities represented
by any Receipt (including any securities transaction tax), such tax or
other
governmental charge shall be payable by the Holder or Beneficial Owner
of such
Receipt to the Depositary. The Depositary may refuse to effect any
transfer of such Receipt or any withdrawal of Deposited Securities represented
by American Depositary Shares evidenced by such Receipt until such payment
is
made, and may withhold any dividends or other distributions, or may sell
for the
account of the Holder or Beneficial Owner thereof any part or all of the
Deposited Securities represented by the American Depositary Shares evidenced
by
such Receipt, and may apply such dividends or other distributions or the
proceeds of any such sale in payment of such tax or other governmental
charge
and the Holder or Beneficial Owner of such Receipt shall remain liable
for any
deficiency.
SECTION
3.3 Representations
and Warranties on Deposit, Transfer, Surrender and Withdrawal of Shares
or
Receipts.
Each
person presenting Shares for deposit under this Deposit Agreement shall
be
deemed thereby to represent and warrant that (i) such Shares and each
certificate therefor are duly and validly authorized, issued and outstanding,
fully paid and nonassessable and free of any preemptive rights of the holders
of
outstanding Shares and (ii) the person making such deposit is duly authorized
so
to do. Such representations and warranties shall survive the deposit and
withdrawal of Shares and the issuance or cancellation of Receipts or adjustments
in the Depositary’s records in respect thereof.
Each
person depositing Shares, taking delivery of or transferring Receipts or
any
beneficial interest therein, or surrendering Receipts or any beneficial
interest
therein and withdrawing Shares under this Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares or Receipts are not Restricted
Securities and that any such deposit, sale, transfer or surrender and withdrawal
is not restricted under the Securities Act of 1933 and is in accordance
with the
applicable restrictions and conditions on transferability set forth in
this
Deposit Agreement, in each case in accordance with any applicable securities
laws of any State of the United States. Such representations and
warranties shall survive any such deposit, sale, transfer or surrender
and
withdrawal of the Shares or the receipts or beneficial interest
therein.
SECTION
3.4 Disclosure
of Interests.
The
Company and the Depositary may from time to time request Holders or former
Holders to provide information as to the capacity in which such Holders
hold or
held ADRs and regarding the identity of any other persons then or previously
interested in such ADRs and the nature of such interest and various other
matters as may be required to comply with applicable law or the Articles
of
Incorporation of the Company. Each such Holder agrees to provide any
information requested by the Company or the Depositary pursuant to this
Section 3.04 and any applicable laws or regulations whether or not still a
Holder at the time of such request.
15
SECTION
3.5 Ownership
Restrictions.
Notwithstanding
any other provision of this Deposit Agreement, the Company may, subject
to any
applicable laws and regulations, restrict deposits of the Shares where
such
deposit might result in ownership of Shares exceeding the limits under
applicable law or the Company’s Articles of Incorporation. Currently,
under the Telecommunications Act of the R.O.C., the total direct and indirect
shareholding of the Company by non-R.O.C. persons may not exceed twenty
percent
(20%) of the total outstanding Shares, which shareholding limitation may
change
from time to time. The Company may, in its sole discretion, instruct the
Depositary in writing to take action with respect to the ownership interest
of
any Holder in excess of the limitation set forth in the preceding sentence,
including but not limited to refusing to accept Shares for deposit from
a holder
of Shares in excess of the applicable limitation if a deposit of Shares
would
result in a violation of such limitations, if and to the extent such action
is
permitted by any applicable law. The Depositary shall use its reasonable
efforts to comply with the written instructions of the Company as provided
in
this Section, only if such instructions are reasonable and
practicable.
SECTION
3.6 Compliance
with Information Requests.
Notwithstanding
any other provision of this Deposit Agreement, each Holder agrees to comply
with
requests from the Company pursuant to R.O.C. law and any stock exchange
on which
the Shares 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 owns Receipts (and Shares as the case
may be)
and regarding the identity of any other person interest in such Receipts
and the
nature of such interest, and the Depositary agrees to use its reasonable
efforts
to comply with written instructions, only if such instructions are reasonable
and practicable, received from the Company requesting that the Depositary
forward any such request from the Company to the Holder and to forward
to the
Company any such responses to such requests received by the
Depositary.
SECTION
3.7 Tax
Guarantor; Securities Trading Account.
The
Depositary and the Company have been advised that under current R.O.C.
law, a
Holder who is a non-R.O.C. person wishing to withdraw Deposited Securities
from
the ADR facility is required to appoint an eligible agent in the R.O.C.
for
filing tax returns and making tax payments (a “Tax Guarantor”). Such Tax
Guarantor will be required to meet the qualifications set by the Ministry
of
Finance of the R.O.C. and will act as the guarantor of the withdrawing
Holder’s
tax payment obligations. In addition, subject to certain limited
exceptions, under current R.O.C. law, repatriation of profits by a non-R.O.C.
withdrawing Holder is subject to the submission of evidence by the withdrawing
Holder of the appointment of a Tax Guarantor to, and approval thereof by,
the
tax authority.
16
The
Depositary and the Company have also been advised that, under current R.O.C.
law, such withdrawing Holder is required to appoint a local agent in the
R.O.C.
to, among other things, open a securities trading account with a local
securities brokerage firm, remit funds and exercise shareholder’s rights.
In addition, such withdrawing Holder is also required to appoint a
custodian bank to hold the securities and cash in safekeeping, make
confirmations and settle trades and report all relevant information.
Without making such appointment and the opening of such account, the
withdrawing Holder would be unable to hold or subsequently sell the Deposited
Securities withdrawn from the ADR facility on the Taiwan Stock Exchange
or
otherwise. The laws of the R.O.C. applicable to the withdrawal of
Deposited Securities may change from time to time. Furthermore, such
withdrawing Holder is also required to be, or to obtain the relevant R.O.C.
approval as, a qualified foreign institutional investor or a general foreign
investor in order to receive Shares upon withdrawal. There can be no
assurances that current law will remain in effect or that future changes
of
R.O.C. law will not adversely affect the ability of Holders to withdraw
Deposited Securities hereunder.
ARTICLE
4.
THE
DEPOSITED SECURITIES
SECTION
4.1 Cash
Distributions.
Whenever
the Depositary shall receive any cash dividend or other cash distribution
on any
Deposited Securities, the Depositary shall, subject to the provisions of
Section
4.05, convert such dividend or distribution into Dollars and shall distribute
the amount thus received (net of the fees and expenses of the Depositary
as
provided in Section 5.09) to the Holders entitled thereto, in proportion to
the number of American Depositary Shares representing such Deposited Securities
held by them respectively; provided,
however,
that in
the event that the Company or the Depositary shall be required to withhold
and
does withhold from such cash dividend or such other cash distribution an
amount
on account of taxes, the amount distributed to the Holder of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such
amount, however, as can be distributed without attributing to any Holder
a
fraction of one cent. Any such fractional amounts shall be rounded down to
the nearest whole cent and so distributed to Holders entitled thereto.
The
Company or its agent will withhold and pay to the appropriate governmental
agency in the R.O.C. all amounts withheld and owing to such agency. The
Depositary will forward to the Company or its agent such information from
its
records as the Company may reasonably request to enable the Company or
its agent
to file necessary reports with governmental agencies, and the Depositary
or the
Company or its agent may file any such reports necessary to obtain benefits
under the applicable tax treaties for the Holders of Receipts.
17
SECTION
4.2 Distributions
Other Than Cash, Shares or Rights.
Subject
to the provisions of Sections 4.11 and 5.09, whenever the Depositary shall
receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received by it to be distributed to the Holders entitled thereto,
after
deduction or upon payment of any fees and expenses of the Depositary or
any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided,
however,
that if
in the reasonable opinion of the Depositary such distribution cannot be
made
proportionately among the Holders entitled thereto, or if for any other
reason
(including, but not limited to, any requirement that the Company or the
Depositary withhold an amount on account of taxes or other governmental
charges
or that such securities must be registered under the Securities Act of
1933 in
order to be distributed to Holders or Beneficial Owners) the Depositary
deems
such distribution not to be feasible, the Depositary may adopt such method
as it
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale
of the
securities or property thus received, or any part thereof, and the net
proceeds
of any such sale (net of the fees and expenses of the Depositary as provided
in
Section 5.09) shall be distributed by the Depositary to the Holders
entitled thereto, all in the manner and subject to the conditions described
in
Section 4.01.
SECTION
4.3 Distributions
in Shares.
If
any
distribution upon any Deposited Securities consists of a dividend in, or
free
distribution of, Shares, the Depositary may, and will if the Company so
requests, distribute to the Holders of outstanding Receipts entitled thereto,
in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively, additional Receipts evidencing
an aggregate number of American Depositary Shares representing the amount
of
Shares received as such dividend or free distribution, subject to the terms
and
conditions of the Deposit Agreement with respect to the deposit of Shares
and
the issuance of American Depositary Shares evidenced by Receipts, including
the
withholding of any tax or other governmental charge as provided in
Section 4.11 and the payment of the fees and expenses of the Depositary as
provided in Section 5.09. The Depositary may withhold any such
distribution of Receipts if it has not received satisfactory assurances
from the
Company (which may be an opinion of counsel) that such distribution does
not
require registration under the Securities Act of 1933 or is exempt from
registration under the provisions of such Act. If additional Receipts are
not so distributed, each American Depositary Share shall thenceforth also
represent the additional Shares distributed upon the Deposited Securities
represented thereby. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell
the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described
in
Section 4.01.
18
SECTION
4.4 Rights.
In
the
event that the Company shall offer or cause to be offered to the holders
of any
Deposited Securities any rights to subscribe for additional Shares or any
rights
of any other nature, the Depositary shall have discretion as to the procedure
to
be followed in making such rights available to any Holders or in disposing
of
such rights on behalf of any Holders and making the net proceeds available
in
Dollars to such Holders or, if by the terms of such rights offering or
for any
other reason, the Depositary may not either make such rights available
to any
Holders or dispose of such rights and make the net proceeds available to
such
Holders, then the Depositary shall allow the rights to lapse. If at the
time of
the offering of any rights the Depositary determines in its discretion
that it
is lawful and feasible to make such rights available to all or certain
Holders
but not to other Holders, the Depositary may distribute to any Holder to
whom it
determines the distribution to be lawful and feasible, in proportion to
the
number of American Depositary Shares held by such Holder, warrants or other
instruments therefor in such form as it deems appropriate.
In
circumstances in which rights would otherwise not be distributed, if a
Holder of
Receipts requests the distribution of warrants or other instruments in
order to
exercise the rights allocable to the American Depositary Shares of such
Holder
hereunder, the Depositary will make such rights available to such Holder
upon
written notice from the Company to the Depositary that (a) the Company
has
elected in its sole discretion to permit such rights to be exercised and
(b)
such Holder has executed such documents as the Company has determined in
its
sole discretion are reasonably required under applicable law.
If
the
Depositary has distributed warrants or other instruments for rights to
all or
certain Holders, then upon instruction from such a Holder pursuant to such
warrants or other instruments to the Depositary from such Holder to exercise
such rights, upon payment by such Holder to the Depositary for the account
of
such Holder of an amount equal to the purchase price of the Shares to be
received upon the exercise of the rights, and upon payment of the fees
and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares
so
purchased to be delivered to the Depositary or the Custodian on behalf
of such
Holder. As agent for such Holder, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of this Deposit
Agreement, and shall, pursuant to Section 2.03 of this Deposit Agreement,
execute and deliver Receipts to such Holder. In the case of a distribution
pursuant to the second paragraph of this section, such Receipts shall be
legended in accordance with applicable laws, and shall be subject to the
appropriate restrictions on sale, deposit, cancellation, and transfer under
such
laws.
If
the
Depositary determines in its discretion that it is not lawful and feasible
to
make such rights available to all or certain Holders, it may sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Holders to whom it has determined it may not lawfully
or
feasibly make such rights available, and allocate the net proceeds of such
sales
(net of the fees and expenses of the Depositary as provided in Section
5.09 and
all taxes and governmental charges payable in connection with such rights
and
subject to the terms and conditions of this Deposit Agreement) for the
account
of such Holders otherwise entitled to such rights, warrants or other
instruments, upon an averaged or other practical basis without regard to
any
distinctions among such Holders because of exchange restrictions or the
date of
delivery of any Receipt, Receipts or otherwise.
19
The
Depositary will not offer rights to Holders unless both the rights and
the
securities to which such rights relate are either exempt from registration
under
the Securities Act of 1933 with respect to a distribution to Holders or
are
registered under the provisions of such Act; provided,
that
nothing in this Deposit Agreement shall create, or be construed to create,
any
obligation on the part of the Company to file a registration statement
with
respect to such rights or underlying securities or to endeavor to have
such a
registration statement declared effective. If a Holder of Receipts
requests the distribution of warrants or other instruments, notwithstanding
that
there has been no such registration under such Act, the Depositary shall
not
effect such distribution unless it has received an opinion from recognized
counsel in the United States to the Company upon which the Depositary may
rely
that such distribution to such Holder is exempt from such
registration.
The
Depositary shall not be responsible for any determination or failure to
determine that it may be lawful or feasible to make such rights available
to
Holders in general or any Holder in particular.
SECTION
4.5 Conversion
of Foreign Currency.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way
of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof
the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred
to the
United States, the Depositary shall convert or cause to be converted, by
sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Holders entitled thereto or,
if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of exchange restrictions,
the date of delivery of any Receipt or otherwise and shall be net of any
expenses of conversion into Dollars incurred by the Depositary as provided
in
Section 5.09.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file such application
for
approval or license, if any, as it may deem desirable.
If
at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval
or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary is not obtainable,
or
if any such approval or license is not obtained within a reasonable period
as
determined by the Depositary, the Depositary may distribute the foreign
currency
(or an appropriate document evidencing the right to receive such foreign
currency) received by the Depositary or the Custodian to, or in its discretion
may hold such foreign currency uninvested and without liability for interest
thereon for the respective accounts of, the Holders entitled to receive
the
same.
20
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Holders entitled thereto, the Depositary may
in its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Holders entitled thereto and may distribute the balance
of
the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Holders entitled thereto.
SECTION
4.6 Fixing
of Record Date.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be
issued
with respect to the Deposited Securities, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in
the
number of Shares that are represented by each American Depositary Share,
or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Holders who shall
be (i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, (b) on or after which each
American Depositary Share will represent the changed number of Shares or
(c) for such other persons as the Depositary finds necessary or convenient,
which date shall be the same date or as near as practicable to the corresponding
record date fixed by the Company. Subject to the provisions of
Sections 4.01 through 4.05 and to the other terms and conditions of this
Deposit Agreement, the Holders on such record date shall be entitled, as
the
case may be, to receive the amount distributable by the Depositary with
respect
to such dividend or other distribution or such rights or the net proceeds
of
sale thereof in proportion to the number of American Depositary Shares
held by
them respectively and to give voting instructions and to act in respect
of any
other such matter. The Depositary shall notify the applicable U.S.
exchange of any action to fix a record date for the ADSs in the customary
manner.
SECTION
4.7 Voting
of Deposited Securities.
(a) The
Holders hereby appoint the Depositary as their representative to exercise
voting
rights with respect to the Shares represented by the ADSs in the following
manner. The Company agrees to provide the Depositary no later than the
business day (the "Cutoff Date") that is at least twenty-four (24) calendar
days
prior to any meeting of shareholders (such period covering the date of
dispatch
of such notice and the date of the meeting of shareholders) with sufficient
copies of the annual report or any other relevant report as the Depositary
may
reasonably request. Upon the written request of the Company, the
Depositary will, at the sole cost and expense of the Company, duplicate
for
distribution a sufficient amount of documents specified by the Company
to be
duplicated and distributed, including a copy of notices of meetings of
the
shareholders of the Company and the agenda therefor and any voting instruction
forms, as well as English translations thereof (containing an indication
of the
number of directors or supervisors to be elected in the case of an election
of
directors or supervisors), by which each Holder may give instructions to
the
Depositary to vote (i) for or against each resolution specified in the
agenda for the meeting and (ii) on a cumulative basis, for the persons
designated by such Holder as directors and supervisors (the "Materials").
Upon receipt of the Materials, the Depositary shall, as soon as
practicable thereafter, fix a record date for determining the Holders entitled
to receive information as to such meeting as provided in Section 4.06 and
shall
mail the Materials to such Holders. If the Company fails to supply the
Materials to the Depositary by the Cutoff Date, the Depositary shall be
under no
obligation to mail the Materials to Holders and, subject to the provisions
described below, will cause all Deposited Securities represented by the
ADRs to
be present at the relevant meeting of shareholders insofar as practicable
and
permitted under applicable law but will not vote or notify any voting
instructions relating to any such Deposited Securities. In order for
voting instructions with respect to an ADS to be valid, the instructions
must be
completed and duly signed by the Holder of such ADS on the record date
established by the Depositary and returned to the Depositary by such date.
The Depositary shall exercise voting rights with respect to the ADS only
in accordance with valid voting instructions.
21
Subject
to the provisions described in the following paragraph, which will apply
to the
election of directors and supervisors, if a Holder or Holders together
holding
at least 51% of the ADSs outstanding at the relevant record date instruct
the
Depositary to vote in the same manner in respect of one or more resolutions
to
be proposed at the meeting (other than the election of directors or
supervisors), the Depositary shall notify the instructions to the Designated
Representative (as defined below in this Section 4.7) or such other person
as he
may designate (the "Substitute") and appoint the Designated Representative
or
the Substitute as the representative of the Depositary and Holders to attend
such meeting and vote all the Deposited Securities represented by ADSs
in the
manner so instructed by such Holders in relation to such resolution or
resolutions. If, for any reason, the Depositary has not by the date
specified by it received instructions from a Holder or Holders together
holding
at least 51% of all the ADSs outstanding at the relevant record date to
vote in
the same manner in respect of any resolution (other than the election of
directors or supervisors), then such Holders will be deemed to have instructed
the Depositary to authorize and appoint the Designated Representative or
the
Substitute as the representative of the Depositary and the Holders to attend
such meeting and vote, at his sole discretion, all the Deposited Securities
represented by all ADSs, which may not be in the interest of the Holders;
provided,
however,
that no
such authorization shall be given with respect to any matter as to which
the
Designated Representative informs the Depositary that he does not wish
to be so
authorized, in which event the Depositary will not vote at the relevant
meeting
but will take such action as is necessary to cause all the Deposited Securities
to be counted for the purpose of satisfying applicable quorum
requirements.
22
The
Depositary will notify the Designated Representative or the Substitute
of the
instructions for the election of directors and supervisors received from
Holders
and appoint the Designated Representative or the Substitute as the
representative of the Depositary and the Holders to attend such meeting
and,
subject to the provisions described in this paragraph, vote the Deposited
Securities represented by ADSs as to which the Depositary has received
instructions from Holders for the election of directors and supervisors
in the
manner so instructed, subject to any restrictions imposed by R.O.C. law,
rule or
regulation or the Articles of Incorporation of the Company. Holders who by
the date specified by the Depositary have not delivered instructions to
the
Depositary will be deemed to have instructed the Depositary to authorize
the
Designated Representative or the Substitute as the representative of the
Depositary and the Holders to attend such meeting and vote, at his sole
discretion, all the Deposited Securities represented by ADSs as to which
the
Depositary has not received instructions from the Holders for the election
of
directors and supervisors, which may not be in the interest of the Holders;
provided, however, that no such authorization shall be given with respect
to any
election of directors or supervisors as to which the Designated Representative
informs the Depositary that he does not wish to be so authorized, in which
event
the Depositary will attend such meeting and will vote those Deposited Securities
represented by the ADSs as to which it has received instructions from Holders
for the election of directors and supervisors in the manner so instructed;
provided further, that the Depositary will not vote at the relevant meeting
any
Deposited Securities represented by ADSs, as to which the Depositary has
not
received instructions from the Holders for the election of directors and
supervisors but will take such action as is necessary to cause all the
Deposited
Securities to be counted for the purpose of satisfying applicable quorum
requirements.
By
continuing to hold ADRs, all Holders will be deemed to have agreed to these
voting provisions, as they may be amended from time to time.
The
Depositary will not, and the Depositary will endeavor to ensure that the
Custodian and their respective nominees (including the Designated
Representative) do not (except as described above), exercise any discretion
as
to voting, nor vote or attempt to exercise the right to vote that attaches
to
the Deposited Securities, other than in accordance with instructions received
as
herein provided.
"Designated
Representative" means the person who is Chairman of the Company from time
to
time.
Beneficial
Owners are entitled to exercise their voting rights only through the procedures
applicable to the respective Holders of the ADRs in which they have a beneficial
interest.
(b) Shareholders
proposal rights.
Holders
that individually or together with other Holders hold at least 51% of the
ADSs
outstanding at the Shareholder Record Date are entitled to submit each
year one
written proposal (the "Proposal") for voting at the general meeting of
shareholders of the Company; provided, that
(i) the
Proposal is in the Chinese language and does not exceed 300 Chinese characters
in length (interpunction marks are included in the calculation of 300 character
limitation),
23
(ii) the
Proposal is submitted to the Depositary at least five (5) Business Days
prior to
the expiry of the Submission Period, which Submission Period shall be publicly
announced by the Company each year in a report on Form 6-K filed with the
Commission prior to the commencement of the sixty (60) calendar day closed
period for general meetings of shareholders of the Company,
(iii) the
Proposal is accompanied by a written certificate to the Depositary (the
"First
Certificate"), in the form required by the Depositary, certifying that
the
Proposal is being submitted by Holders ("Submitting Holders") that individually
or together with other Holders hold at least 51% of the ADSs outstanding at the
Submission Date and, if the Submission Date is on or after the Shareholder
Record Date, also certifying that the Submitting Holders held at least
51% of
the ADSs outstanding as of the Shareholder Record Date,
(iv) if
the
Submission Date is prior to the Shareholder Record Date, the Submitting
Holders
must also provide, within three (3) Business Days after the Shareholder
Record
Date, a second written certificate (the "Second Certificate") to the Depositary,
in the form required by the Depositary, certifying that the Submitting
Holders
continued to hold at least 51% of the ADSs outstanding at the Shareholder
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 Certificate
or the Second 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 general meeting of the shareholders of the Company (including the
costs
and expenses of the Depositary or its agent to attend the general meeting
of the
shareholders of the Company) as such fees and expenses may be reasonably
determined and documented by the Depositary or the Company, and
(vi) the
Proposal shall only be voted upon at the general meeting of shareholders
of the
Company if the Proposal is accepted by the board of directors of the Company
as
eligible in accordance with law for consideration at a shareholders
meeting.
Any
Proposal received by the Depositary which the Depositary reasonably believes
to
be in full compliance with the preceding paragraph shall be submitted by
the
Depositary to the Company prior to the expiration of the Submission Period.
The
Depositary shall withdraw any Proposal so submitted as to which the Depositary
has not received within three (3) Business Days after the Shareholder Record
Date any Second Certificate required under the preceding paragraph. In
determining whether any Proposal meets the requirements set forth above,
the
Depositary may rely upon a statement set forth in the First Certificate
or
Second Certificate stating that the Proposal is in full compliance with
the
requirements set forth in the preceding paragraph. The Depositary has no
obligation to perform any investigation in connection with any Proposal.
Notwithstanding
anything contained in the Deposit Agreement or any ADR, 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
Proposal submission period, or the receipt of any Proposal from Holders
or
Beneficial Owners, or of the holdings of any ADSs by any persons, except
that
the Depositary shall, upon a Holder's written request, inform such Holder
of the
total number of ADSs then issued and outstanding.
24
(c) Shareholders
nomination right. Holders
and Beneficial Owners of ADSs do not have individual nomination rights.
In the
event that the Company were to amend its Articles of Incorporation to adopt
a
Candidate Nomination System, the Depositary would, if so requested by a
Holder
or 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) and/or Holders, the
"Nominating Holder(s)"), submit to the Company for consideration at a meeting
of
the Company's shareholders involving the election of directors one (1)
Nomination, provided that:
(i) subject
to any applicable provision with respect to nomination of a director under
the
Articles of Incorporation of the Company, the number of director candidates
contained in the Nomination shall not exceed the number of the directors
to be
elected at such meeting,
(ii) the
Nomination shall contain the name, educational background and past work
experience of each director candidate identified in the Nomination,
(iii) the
Nomination shall include a letter of consent issued by each director candidate
identified in the Nomination consenting to act as director if she/he/it
is
elected as such,
(iv) a
written
statement by each director candidate assuring that she/he/it is not in
violation
of any of the circumstances set forth in Article 30 of the ROC Company
Law, as
amended,
(v) if
the
Nomination involves the election of independent directors of the Company,
the
Nomination shall include documents proving that each director candidate
complies
with the criteria set forth in the ROC Securities and Exchange Act and
the
Regulations Governing Appointment of Independent Directors and Compliance
Matters for Public Companies,
(vi) if
a
director candidate is corporate shareholder of the Company (which cannot
be the
Depositary or its nominee), or such corporate shareholder's representative,
additional information and documents reflecting the basic registration
information of such corporate shareholder and the document certifying the
number
of Shares in its possession,
(vii) any
further conditions under Article 192-1 of the ROC Company Law, as amended,
and
of the Company's amended Articles of Incorporation are so satisfied,
(viii) the
Nomination is submitted to the Depositary by the Nominating Holder(s) at
least
five (5) Business Days prior to the expiration of the Nomination Submission
Period,
25
(ix) the
Nomination is accompanied by a written certificate signed by each Nominating
Holder, addressed to the Depositary and the Company and in a form satisfactory
to the Depositary and the Company (the "First Nomination Certificate"),
certifying, inter alia, (w) that each Nominating Holder has only endorsed
the
said Nomination, (x) that the Nominating Holder(s) own(s), individually
or in
the aggregate, at least 51% of the ADSs outstanding as of the date the
Nomination is submitted by the Nominating Holder(s) to the Depositary (the
"Nomination Submission Date"), (y) if the Nomination Submission Date is
(i) on
or after the applicable ADS Record Date, that the Nominating Holder(s)
owned at
least 51% of the ADSs outstanding as of the applicable ADS Record Date,
and (ii)
prior to the applicable ADS Record Date, that the Submitting Holder(s)
will
continue to own at least 51% of the ADSs outstanding as of the applicable
ADS
Record Date and will provide the Second Nomination Certificate, as defined
below, and (z) the name(s) and address(es) of the Nominating Holder(s)
and the
number of ADSs owned by each Nominating Holder (together with certified
evidence
of each Nominating Holder's ownership of the applicable ADSs as of the
Nomination Submission Date, in the case of (y)(ii) above, and the applicable
ADS
Record Date, in the case of (y)(i) above),
(x) if
the
Nomination Submission Date is prior to the applicable ADS Record Date,
the
Nominating Holder(s) must also provide, within three (3) Business Days
after the
applicable ADS Record Date, a second written certificate signed by each
Nominating Holder addressed to the Depositary and the Company and in a
form
satisfactory to the Depositary and the Company (the "Second Nomination
Certificate"), certifying, inter alia, that the Nominating Holder(s) continued
to own at least 51% of the ADSs outstanding as of the applicable ADS Record
Date
(together with certified evidence of each Nominating Holder's ownership
of the
applicable ADSs as of such applicable ADS Record Date),
(xi) the
Nomination is accompanied by a joint and several irrevocable undertaking
of all
Nominating Holders (which undertaking may be contained in the First Nomination
Certificate or the Second Nomination Certificate) that each such Nominating
Holder shall pay all fees and expenses incurred in relation to the submission
of
the Nomination at the meeting of the Company's shareholders, and
(xii) the
Shares registered in the name of the Depositary or its nominee as representative
of the Holders and Beneficial Owners constitute one percent (1%) or more
of the
total issued and outstanding Shares of the Company as of the Candidate
Nomination Record Date. Each Beneficial Owner hereby agrees and acknowledges
that in no event shall the Depositary or its nominee be nominated by the
Nominating Holder(s) for election as a director at a meeting of the Company's
shareholders.
Upon
the
timely receipt by the Depositary of any Nomination which the Depositary
reasonably believes to be in full compliance with the immediately preceding
paragraph, the Depositary shall submit a copy of such Nomination and of
the
other materials received from the Nominating Holder(s) to the Company prior
to
the expiration of the Nomination Submission Period. Any Nomination so submitted
as to which the Depositary has not received within three (3) Business Days
after
the applicable ADS Record Date any Second Nomination Certificate required
under
the immediately preceding paragraph shall be deemed irrevocably withdrawn
at the
expiration of such three (3) Business Day period. In the event the Depositary
receives more than one (1) Nomination by a Nominating Holder, or a group
of
Nominating Holders, each of which appears to satisfy the requirements set
forth
in the immediately preceding paragraph or the number of director candidates
contained in the Nomination exceeds the number of the directors to be elected
at
such meeting provided under Section 4.07(c)(i), the Depositary is hereby
authorized and instructed to disregard all Nominations received from such
Submitting Holder(s), except for the first Nomination received by the Depositary
from such Nominating Holder(s) and shall submit such Nomination to the
Company
for consideration at a meeting of the Company's shareholders involving
the
election of directors in accordance with the terms of the Deposit Agreement.
The
Depositary shall not have any obligation to verify the accuracy of the
information contained in any document submitted to it by the Nominating
Holder(s). Neither the Depositary nor its nominee shall be obligated to
attend
and speak at the meeting of the Company's shareholders involving the election
of
directors on behalf of the Nominating Holder(s).
In
determining whether any Nomination meets the requirements set forth above,
the
Depositary may rely upon a statement set forth in the First Nomination
Certificate or Second Nomination Certificate stating that the Nomination
is in
full compliance with the requirements set forth in the preceding paragraph.
The
Depositary has no obligation to perform any investigation in connection
with any
Nomination.
26
Notwithstanding
anything contained in the Deposit Agreement or any ADR, and except that
the
Depositary shall arrange, at the request of the Company and at the Company's
expense, for the mailing to Holders of copies of materials that the Company
has
made available to the Depositary for such purpose, the Depositary shall
not be
obligated to provide to the Holders or Beneficial Owners of ADSs any notices
relating to the nomination rights, including, without limitation, notice
of the
Nomination Submission Period, or the receipt of any Nomination(s) from
Nominating Holders, or of the holdings of any ADSs by any persons, except
that
the Depositary shall, upon a Holder's request, inform such Holder of the
total
number of ADSs then issued and outstanding.
SECTION
4.8 Changes
Affecting Deposited Securities.
In
circumstances where the provisions of Section 4.03 do not apply, upon any
change in nominal value, change in par value, split-up, 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, and upon the Depositary having obtained specific
regulatory approval, if necessary, for the issuance of additional ADSs
from the
appropriate governmental entity in the R.O.C., any securities which shall
be
received by the Depositary or a Custodian in exchange for, in conversion
of or
in respect of Deposited Securities, shall be treated as new Deposited Securities
under this Deposit Agreement, and American Depositary Shares shall thenceforth
represent, in addition to the existing Deposited Securities, the right
to
receive the new Deposited Securities so received in exchange or conversion,
unless additional Receipts are delivered pursuant to the following sentence.
In any such case the Depositary may, and shall if the Company shall so
request, execute and deliver additional Receipts as in the case of a
distribution in Shares, or call for the surrender of outstanding Receipts
to be
exchanged for new Receipts specifically describing such new Deposited
Securities.
27
SECTION
4.9 Reports.
The
Depositary shall make available for inspection by Holders at the Depositary's
Office any reports and communications, including any proxy soliciting material,
received from the Company which are both (a) received by the Depositary as
the holder of the Deposited Securities and (b) made generally available to
the holders of such Deposited Securities by the Company. The Depositary
shall also, upon written request, send to the Holders copies of such reports
furnished by the Company pursuant to Section 5.06. Any such reports
and communications, including any such proxy soliciting material, furnished
to
the Depositary by the Company shall be furnished in English, to the extent
such
materials are required to be translated into English pursuant to any regulations
of the Commission or any stock exchange on which the American Depositary
Shares
are listed.
SECTION
4.10 Lists
of Holders.
Promptly
upon request by the Company to the Depositary, the Depositary shall furnish
to
the Company a list of the names, addresses and holdings of American Depositary
Shares by all persons in whose names Receipts are registered on the books
of the
Depositary. No more than four such lists per annum shall be provided by
the Depositary to the Company at no cost to the Company. Any such
additional lists shall be provided by the Depositary to the Company at
the
expense of the Company.
SECTION
4.11 Withholding.
In
the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax
or
other governmental charge which the Depositary is obligated to withhold,
the
Depositary may by public or private sale dispose of all or a portion of
such
property (including Shares and rights to subscribe therefor) in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay
such
taxes or charges and the Depositary shall distribute the net proceeds of
any
such sale after deduction of such taxes or charges to the Holders entitled
thereto in proportion to the number of American Depositary Shares held
by them
respectively.
ARTICLE
5.
THE
DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION
5.1 Maintenance
of Office and Transfer Books by the Depositary.
Until
termination of this Deposit Agreement in accordance with its terms, the
Depositary shall maintain in the Borough of Manhattan, The City of New
York,
facilities for the execution and delivery, registration, registration of
transfers and surrender of Receipts in accordance with the provisions of
this
Deposit Agreement.
28
The
Depositary shall keep books for the registration of Receipts and transfers
of
Receipts which shall at all reasonable times be open for inspection by
the
Holders, provided
that
such inspection shall not be for the purpose of communicating with Holders
in
the interest of a business or object other than the business of the Company
or a
matter related to this Deposit Agreement or the Receipts. The Depositary
agrees that it will not otherwise disclose any information set forth in
such
records except as requested or authorized in writing by the Company or
as
required by law.
The
Depositary may close the transfer books, at any time or from time to time,
when
deemed expedient by it in connection with the performance of its duties
hereunder.
If
any
Receipts or the American Depositary Shares evidenced thereby are listed
on one
or more stock exchanges in the United States, the Depositary shall act
as
Registrar or appoint a Registrar or one or more co-registrars for registry
of
such Receipts in accordance with any requirements of such exchange or
exchanges.
SECTION
5.2 Prevention
or Delay in Performance by the Depositary or the Company.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Holder or Beneficial
Owner
of any Receipt, if by reason of any provision of any present or future
law,
rule, regulation, order, decree or fiat of the United States, the R.O.C.
or any
other jurisdiction, or of any other governmental or regulatory authority,
or any
securities exchange or market or automated quotation system, or by reason
of any
provision, present or future, of the Articles of Incorporation of the Company,
or by reason of any provision of any securities issued or distributed by
the
Company, or any offering or distribution thereof, or by reason of any act
of God
or war or terrorism or other circumstances beyond its control, the Depositary
or
the Company shall be prevented, delayed or forbidden from, or be subject
to any
civil or criminal penalty on account of, doing or performing any act or
thing
which by the terms of this Deposit Agreement it is provided shall be done
or
performed; nor shall the Depositary or the Company or any of their respective
directors, employees, agents or affiliates incur any liability to any Holder
or
Beneficial Owner of any Receipt by reason of any nonperformance or delay,
caused
as aforesaid, in the performance of any act or thing which by the terms
of this
Deposit Agreement it is provided shall or may be done or performed, or
by reason
of any exercise of, or failure to exercise, any discretion provided for
in this
Deposit Agreement. Where, by the terms of a distribution pursuant to
Section 4.01, 4.02, or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, or for any
other reason, such distribution or offering may not be made available to
Holders, and the Depositary may not dispose of such distribution or offering
on
behalf of such Holders and make the net proceeds available to such Holders,
then
the Depositary shall not make such distribution or offering, and shall
allow any
rights, if applicable, to lapse.
29
SECTION
5.3 Obligations
of the Depositary, the Custodian and the Company.
The
Company assumes no obligation nor shall it be subject to any liability
under
this Deposit Agreement to Holders or Beneficial Owners, except that it
agrees to
perform its obligations specifically set forth in this Deposit Agreement
without
gross negligence or bad faith.
The
Depositary assumes no obligation nor shall it be subject to any liability
under
this Deposit Agreement to any Holder or Beneficial Owner (including, without
limitation, liability with respect to the validity or worth of the Deposited
Securities), except that it agrees to perform its obligations specifically
set
forth in this Deposit Agreement without gross negligence or bad
faith.
Neither
the Depositary nor the Company shall be under any obligation to appear
in,
prosecute or defend any action, suit or other proceeding in respect of
any
Deposited Securities or in respect of the Receipts, which in its opinion
may
involve it in expense or liability, unless indemnity satisfactory to it
against
all expense and liability shall be furnished as often as may be required,
and
the Custodian shall not be under any obligation whatsoever with respect
to such
proceedings, the responsibility of the Custodian being solely to the
Depositary.
Neither
the Depositary nor the Company shall be liable for any action or nonaction
by it
in reliance upon the advice of or information from legal counsel, accountants,
any person presenting Shares for deposit, any Holder or any other person
believed by it in good faith to be competent to give such advice or
information.
The
Depositary shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the
removal or resignation of the Depositary, provided
that in
connection with the issue out of which such potential liability arises
the
Depositary performed its obligations without negligence or bad faith while
it
acted as Depositary.
Neither
the Depositary nor the Company shall be responsible for any failure to
carry out
any instructions to vote any of the Deposited Securities, or for the manner
in
which any such vote is cast (provided that any such action or nonaction
is in
good faith) or for the effect of any such vote, provided
that any
such action or nonaction is in good faith.
Notwithstanding
anything to the contrary set forth in the Deposit Agreement or any ADR,
the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained by or on its behalf in connection with the Deposit
Agreement, any Holder or Holders, any ADR or ADRs or otherwise related
hereto to
the extent such information is requested or required by or pursuant to
any
lawful authority, including without limitation laws, rules, regulations,
administrative or judicial process, banking, securities or other regulators.
30
Neither
the Company nor the Depositary nor any of their respective agents shall
be
liable to Holders or Beneficial Owners for any indirect, special, punitive
or
consequential damages.
No
disclaimer of liability under the Securities Act of 1933 is intended by
any
provision of this Deposit Agreement.
SECTION
5.4 Resignation
and Removal of the Depositary.
The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election to do so delivered to the Company, such resignation to take
effect
upon the appointment by the Company of a successor depositary and its acceptance
of such appointment as hereinafter provided.
The
Depositary may at any time be removed by the Company by 120 days prior
written
notice of such removal, to become effective upon the later of (i) the
120th
day
after delivery of the notice to the Depositary or (ii) appointment by the
Company of a successor depositary and its acceptance of such appointment
as
hereinafter provided.
In
case
at any time the Depositary acting hereunder shall resign or be removed,
the
Company shall use its best efforts to appoint a successor depositary, which
shall be a bank or trust company having an office in the Borough of Manhattan,
The City of New York. Every successor depositary shall execute and deliver
to its predecessor and to the Company an instrument in writing accepting
its
appointment hereunder, and thereupon such successor depositary, without
any
further act or deed, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor; but such predecessor, nevertheless,
upon payment of all sums due it and on the written request of the Company
shall
execute and deliver an instrument transferring to such successor all rights
and
powers of such predecessor hereunder, shall duly assign, transfer and deliver
all right, title and interest in the Deposited Securities to such successor,
and
shall deliver to such successor a list of the Holders of all outstanding
Receipts. Any such successor depositary shall promptly mail notice of its
appointment to the Holders.
Any
corporation into or with which the Depositary may be merged or consolidated
shall be the successor of the Depositary without the execution or filing
of any
document or any further act.
SECTION
5.5 The
Custodians.
The
Custodian shall be subject at all times and in all respects to the directions
of
the Depositary and shall be responsible solely to it. Any Custodian may
resign and be discharged from its duties hereunder by notice of such resignation
delivered to the Depositary at least 30 days prior to the date on which
such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly
after
receiving such notice, subject to the prior written consent of the Company
(which consent shall not be unreasonably withheld or delayed), appoint
a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder. Whenever the Depositary in its discretion determines
that it is in the best interest of the Holders to do so, it may, subject
to the
prior written consent of the Company (which consent shall not be unreasonably
withheld or delayed), appoint a substitute or additional custodian or
custodians, each of which shall thereafter be one of the Custodians hereunder.
Upon demand of the Depositary any Custodian shall deliver such of the
Deposited Securities held by it as are requested of it to any other Custodian
or
such substitute or additional custodian or custodians. Each such
substitute or additional custodian shall deliver to the Depositary, forthwith
upon its appointment, an acceptance of such appointment satisfactory in
form and
substance to the Depositary.
31
Upon
the
appointment of any successor depositary hereunder, each Custodian then
acting
hereunder shall forthwith become, without any further act or writing, the
agent
hereunder of such successor depositary and the appointment of such successor
depositary shall in no way impair the authority of each Custodian hereunder;
but
the successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete
power
and authority as agent hereunder of such successor depositary.
SECTION
5.6 Notices
and Reports.
On
or
before the first date on which the Company gives notice, by publication
or
otherwise, of any meeting of holders of Shares or other Deposited Securities,
or
of any adjourned meeting of such holders, or of the taking of any action
in
respect of any cash or other distributions or the offering of any rights,
the
Company agrees to transmit to the Depositary and the Custodian a copy of
the
notice thereof in the form given or to be given to holders of Shares or
other
Deposited Securities.
The
Company will arrange for the translation into English and the prompt transmittal
by the Company to the Depositary and the Custodian of such notices and
any other
reports and communications which are made generally available by the Company
to
holders of its Shares. If requested in writing by the Company, the
Depositary will arrange for the mailing of copies of such notices, reports
and
communications to all Holders. The Company will timely provide the
Depositary with such notices, reports, and communications, as requested
by the
Depositary from time to time, in order for the Depositary to effect such
mailings.
SECTION
5.7 Distribution
of Additional Shares, Rights, etc.
The
Company agrees that in the event of any issuance or distribution of
(1) additional Shares, (2) rights to subscribe for Shares,
(3) securities convertible into Shares, or (4) rights to subscribe for
such securities (each a "Distribution"), the Company will promptly furnish
to
the Depositary a written opinion from recognized counsel in the United
States to
the Company stating whether or not the Distribution requires a Registration
Statement under the Securities Act of 1933 to be in effect prior to making
such
Distribution available to Holders entitled thereto. If in the opinion of
such counsel a registration statement under the Securities Act of 1933
is
required, such counsel shall furnish to the Depositary a written opinion
as to
whether or not there is a registration statement in effect which will cover
such
Distribution.
32
The
Company agrees with the Depositary that neither the Company nor any of
its
affiliates (as such term is defined in Rule 144 under the Securities Act
of
1933) will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate,
unless
such Shares or proposed transactions are exempt from registration under
the
Securities Act of 1933 or unless a registration statement is in effect
as to
such Shares under the Securities Act of 1933.
Notwithstanding
anything else contained in this Deposit Agreement, nothing in this Deposit
Agreement shall be deemed to obligate the Company to file any registration
statement in respect of any proposed transaction.
SECTION
5.8 Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary
and its
agents against any loss, liability or expense (including reasonable fees
and
expenses of counsel) which may arise out of acts performed or omitted,
in
connection with the provisions of this Deposit Agreement and of the Receipts,
as
the same may be amended, modified or supplemented from time to time in
accordance herewith (i) by either the Depositary or its agents or their
respective directors, employees, agents and affiliates, except, subject
to the
penultimate paragraph of this Section 5.8, for any liability or expense
directly
arising out of the negligence or bad faith of the Depositary, or (ii) by
the
Company or any of its directors, employees, agents or affiliates.
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of
American
Depositary Shares, except to the extent any such liability or expense arises
out
of (i) information relating to the Depositary or its agents (other than
the
Company), as applicable, furnished in writing by the Depositary or its
legal
counsel and not changed or altered by the Company expressly for use in
any of
the foregoing documents or (ii) if such information is provided, the failure
to
state a material fact necessary to make the information provided not misleading.
The indemnities contained in the preceding paragraph shall not extend to
any
liability or expense which arises solely and exclusively out of a Pre-Release
(as defined in Section 2.9) of a Receipt or Receipts in accordance with
Section
2.9 and which would not otherwise have arisen had such Receipt or Receipts
not
been the subject of a Pre-Release pursuant to Section 2.09; provided,
however,
that
the indemnities provided in the preceding paragraph shall apply to any
such
liability or expense (i) to the extent that such liability or expense would
have
arisen had a Receipt or Receipts not be the subject of a Pre-Release, or
(ii)
which may arise out of any misstatement or alleged misstatement or omission
or
alleged omission in any registration statement, proxy statement, prospectus
(or
placement memorandum), or preliminary prospectus (or preliminary placement
memorandum) relating to the offer or sale of American Depositary Shares,
except
to the extent any such liability or expense arises out of (i) information
relating to the Depositary or any Custodian (other than the Company), as
applicable, furnished in writing and not materially changed or altered
by the
Company expressly for use in any of the foregoing documents, or, (ii) if
such
information is provided, the failure to state a material fact necessary
to make
the information provided not misleading.
33
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend and save harmless the Company against any loss, liability or expense
(including reasonable fees and expenses of counsel) incurred by the Company
in
respect of this Deposit Agreement as
the
same may be amended, modified or supplemented from time to time in accordance
herewith
to the
extent such loss, liability or expense is due to the negligence or bad
faith of
the Depositary or its agents acting hereunder.
Notwithstanding
any other provision of this Deposit Agreement or the ADRs to the contrary,
neither the Company nor the Depositary, nor any of their agents, shall
be liable
to the other for any indirect, special, punitive or consequential damages
(collectively "Special Damages") except (i) to the extent such Special
Damages
arise from the gross negligence or willful misconduct of the party from
whom
indemnification is sought or (ii) to the extent Special Damages arise from
or
out of a claim brought by a third party (including, without limitation,
Holders)
against the Depositary or its agents, except to the extent such Special
Damages
arise out of the gross negligence or willful misconduct of the party seeking
indemnification hereunder.
The
obligations set forth in this Section 5.8 shall survive the termination
of this
Deposit Agreement and the succession or substitution of any indemnified
person.
SECTION
5.9 Charges
of Depositary.
The
Company agrees to pay the fees, reasonable expenses and out-of-pocket charges
of
the Depositary and those of any Registrar only in accordance with agreements
in
writing entered into between the Depositary and the Company from time to
time.
The Depositary shall present its statement for such charges and expenses
to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or
stock
split declared by the Company or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), or by Holders, as applicable: (1) taxes and other
governmental charges, (2) such registration fees as may from time to time
be in effect for the registration of transfers of Shares generally on the
Share
register of the Company or Foreign Registrar and applicable to transfers
of
Shares to or from the name of the Depositary or its nominee or the Custodian
or
its nominee on the making of deposits or withdrawals hereunder, (3) such
cable, telex and facsimile transmission expenses as are expressly provided
in
this Deposit Agree-ment, (4) such expenses as are incurred by the
Depositary in the conversion of foreign currency pursuant to Section 4.05,
(5) a fee of $5.00 or less per 100 American Depositary Shares (or portion
thereof) for the execution and delivery of Receipts pursuant to
Section 2.03, 4.03 or 4.04 and the surrender of Receipts pursuant to
Section 2.05 or 6.02, (6) a fee of $.02 or less per American
Depositary Share (or portion thereof) for any cash distribution made pursuant
to
the Deposit Agreement, including, but not limited to Sections 4.01 through
4.04
hereof to the extent permitted by the rules of any securities exchange
on which
the American Depositary Shares may be listed for trading, (7) a fee for the
distribution of securities pursuant to Section 4.02, such fee being in an
amount equal to the fee for the execution and delivery of American Depositary
Shares referred to above which would have been charged as a result of the
deposit of such securities (for purposes of this clause 7 treating all such
securities as if they were Shares) but which securities are instead distributed
by the Depositary to Holders and (8) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or
the
agents of the Depositary's agents in connection with the servicing of Shares
or
other Deposited Securities (which charge shall be assessed against Holders
as of
the date or dates set by the Depositary in accordance with Section 4.06
and
shall be payable at the sole discretion of the Depositary by billing such
Holders for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
34
The
Depositary, subject to Section 2.09 hereof, may own and deal in any class
of securities of the Company and its affiliates and in Receipts.
SECTION
5.10 Retention
of Depositary Documents.
The
Depositary is authorized to destroy those documents, records, bills and
other
data compiled during the term of this Deposit Agreement at the times permitted
by the laws or regulations governing the Depositary unless the Company
requests
that such papers be retained for a longer period or turned over to the
Company
or to a successor depositary.
SECTION
5.11 Exclusivity.
The
Company agrees not to appoint any other Depositary for the issuance of
American
Depositary Receipts so long as JPMorgan Chase Bank, N.A. is acting as Depositary
hereunder.
SECTION
5.12 List
of Restricted Securities Holders.
From
time
to time, the Company shall provide to the Depositary a list setting forth,
to
the actual knowledge of the Company, those persons or entities who beneficially
own Restricted Securities and the Company shall update that list on a regular
basis. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on such a list or update but shall not
be liable for any action or omission made in reliance thereon.
35
ARTICLE
6.
AMENDMENT
AND TERMINATION
SECTION
6.1 Amendment.
The
form
of the Receipts and any provisions of this Deposit Agreement may at any
time and
from time to time be amended by agreement between the Company and the Depositary
without the consent of Holders or Beneficial Owners of Receipts in any
respect
which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees, cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice
any
substantial existing right of Holders, shall, however, not become effective
as
to outstanding Receipts until the expiration of 30 days after notice of
such
amendment shall have been given to the Holders of outstanding Receipts.
Every Holder at the time any amendment so becomes effective, shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by the Deposit Agreement as amended thereby.
In
no event shall any amendment impair the right of the Holder of any Receipt
to
surrender such Receipt and receive therefor the Deposited Securities represented
thereby, except in order to comply with mandatory provisions of applicable
law.
SECTION
6.2 Termination.
The
Depositary shall, at any time at the direction of the Company, terminate
this
Deposit Agreement by mailing notice of such termination to the Holders
of all
Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination. The Depositary may likewise terminate this
Deposit Agreement by mailing notice of such termination to the Company
and the
Holders of all Receipts then outstanding, if at any time 180 days shall
have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have
been
appointed and accepted its appointment as provided in Section 5.04;
provided,
however, that in the event the Depositary has resigned and a successor
depositary shall not have been appointed prior to the expiration of such
180 day
period, the Depositary shall have the right to terminate this Deposit Agreement
forthwith by mailing such notice in the event it becomes unlawful for JPMorgan
Chase Bank, N.A. to continue to act as Depositary hereunder.
To
the
extent non-R.O.C. persons who are Holders of ADRs are permitted to withdraw
the
Shares underlying the ADSs evidenced thereby under applicable law at the
time of
the termination of this Agreement, the following paragraph shall apply
to all
Holders who may so withdraw such Shares.
36
On
and
after the date of termination, the Holder of a Receipt will, upon
(a) surrender of such Receipt at the Depositary's Office, (b) payment
of the fee of the Depositary for the surrender of Receipts referred to
in
Section 2.05, and (c) 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 the American Depositary Shares evidenced
by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration
of
transfers of Receipts, shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any
further
acts under this Deposit Agreement, except that the Depositary shall continue
to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights and other property as provided in this Deposit Agreement,
and
shall continue to deliver Deposited Securities, 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, in each case, the fee of the Depositary
for the
surrender of a Receipt, any expenses for the account of the Holder of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges).
To
the
extent non-R.O.C. persons who are Holders of ADRs are not permitted to
withdraw
the Shares underlying the ADSs evidenced thereby under applicable law at
the
time of the termination of this Agreement, the following paragraph shall
apply
to all Holders who may not so withdraw such Shares.
If
any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts,
shall
suspend the distribution of dividends to the Holders thereof, and shall
not give
any further notices or perform any further acts under this Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights, Shares
and
other property as provided in this Deposit Agreement, and shall continue
to
deliver the net proceeds of the sale of any rights, Shares or other property,
in
exchange for Receipts surrendered to the Depositary (after deducting, in
each
case, the fee of the Depositary for the surrender of a Receipt, any expenses
for
the account of the Holder of such Receipt in accordance with the terms
and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges).
At
any
time after the expiration of one (1) year from the date of termination,
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, unsegregated and without liability
for
interest, for the pro rata benefit of the Holders of Receipts which have
not
theretofore been surrendered, such Holders thereupon becoming general creditors
of the Depositary with respect to such net proceeds. After making such
sale, the Depositary shall be discharged from all obligations under this
Deposit
Agreement, except to account for such net proceeds and other cash (after
deducting, in each case, the fee of the Depositary for the surrender of
a
Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and
any
applicable taxes or governmental charges). Upon the termination of this
Deposit Agreement, the Company shall be discharged from all obligations
under
this Deposit Agreement except for its obligations to the Depositary under
Sections 5.08 and 5.09 hereof.
37
ARTICLE
7.
MISCELLANEOUS
SECTION
7.1 Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, each of
which
shall be deemed an original and all of such counterparts shall constitute
one
and the same instrument. Copies of this Deposit Agreement shall be filed
with the Depositary and the Custodians and shall be open to inspection
by any
Holder or Beneficial Owner of a Receipt during business hours.
SECTION
7.2 No
Third Party Beneficiaries.
This
Deposit Agreement is for the exclusive benefit of the parties hereto and
shall
not be deemed to give any legal or equitable right, remedy or claim whatsoever
to any other person.
SECTION
7.3 Severability.
In
case
any one or more of the provisions contained in this Deposit Agreement or
in the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.4 Holders
and Beneficial Owners as Parties; Binding Effect.
The
Holders and Beneficial Owners of Receipts from time to time shall be parties
to
this Deposit Agreement and shall be bound by all of the terms and conditions
hereof and of the Receipts by acceptance thereof.. Each
Holder and Beneficial Owner, upon acceptance of any American Depositary
Share
(or any interest therein) issued in accordance with the terms and conditions
of
this Deposit Agreement shall be deemed for all purposes to (a) be a party
to and
bound by the terms of this Deposit Agreement and the applicable Receipt(s),
and
(b) appoint the Depositary its attorney-in-fact, with full power to delegate,
to
act on its behalf and to take any and all actions contemplated in this
Deposit
Agreement and the applicable Receipt(s), to adopt any and all procedures
necessary to comply with applicable law and to take such action as the
Depositary in its sole discretion may deem necessary or appropriate to
carry out
the purposes of this Deposit Agreement and the applicable Receipt(s), the
taking
of such actions to be the conclusive determinant of the necessity and
appropriateness thereof.
38
SECTION
7.5 Notices.
Any
and
all notices to be given to the Company shall be deemed to have been duly
given
if personally delivered or sent by mail or cable, telex or facsimile
transmission confirmed by letter, addressed to Chunghwa Telecom Co., Ltd.,
▇▇-▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, R.O.C., Attention: ▇▇. ▇▇▇▇ ▇▇▇▇,
Room
109, Facsimile: 886-2-2344-4581, or any other place to which the Company
may
have transferred its principal office.
Any
and
all notices to be given to the Depositary shall be deemed to have been
duly
given if in English and personally delivered or sent by mail or cable,
telex or
facsimile transmission confirmed by letter, addressed to JPMorgan Chase
Bank,
N.A., ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
American Depositary Receipt Administration, or any other place to which
the Depositary may have transferred the Depositary's Office.
Any
and
all notices to be given to any Holder shall be deemed to have been duly
given if
personally delivered or sent by mail or cable, telex or facsimile transmission
confirmed by letter, addressed to such Holder at the address of such Holder
as
it appears on the transfer books for Receipts of the Depositary, or, if
such
Holder shall have filed with the Depositary a written request that notices
intended for such Holder be mailed to some other address, at the address
designated in such request.
Delivery
of a notice sent by mail or cable, telex or facsimile transmission shall
be
deemed to be effective at the time when a duly addressed letter containing
the
same (or a confirmation thereof in the case of a cable, telex or facsimile
transmission) is deposited, postage prepaid, in a post-office letter box.
The Depositary or the Company may, however, act upon any cable, telex or
facsimile transmission received by it, notwithstanding that such cable,
telex or
facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION
7.6 Governing
Law.
This
Deposit Agreement and the Receipts shall be interpreted and all rights
hereunder
and thereunder and provisions hereof and thereof shall be governed by the
laws
of the State of New York.
SECTION
7.7 Submission
to Jurisdiction; Appointment of Agent for Service of Process.
The
Company hereby (i) irrevocably designates and appoints CT Corporation, ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the State of New York, as the Company's authorized
agent upon which process may be served in any suit or proceeding arising
out of
or relating to the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, (ii) consents and submits to the
jurisdiction of any state or federal court in the State of New York in
which any
such suit or proceeding may be instituted, and (iii) agrees that service
of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. The
Depositary agrees to provide notice to the Company, in accordance with
Section
7.05 hereof, of any such service of process upon the authorized agent;
provided,
however, that any action or omission with respect to such notice shall
not in
any way invalidate or other constitute a waiver of such service of process.
The Company agrees to deliver to the Depositary, upon the execution and
delivery of this Deposit Agreement, a written acceptance by such agent
of its
appointment as such agent. The Company further agrees to take any and all
action, including the filing of any and all such documents and instruments,
as
may be necessary to continue such designation and appointment in full force
and
effect for so long as any American Depositary Shares or Receipts remain
outstanding or this Agreement remains in force. If for any reason the
authorized agent shall cease to be available to act as such, the Company
agrees
to designate a new authorized agent in New York on the terms and for the
purposes of this Section 7.07 and deliver to the Depositary written notice,
in
accordance with Section 7.05 hereof, of such new authorized agent, which
notice
shall take effect upon the Depositary’s receipt of such notice. In the
event the Company fails to continue such designation and appointment in
full
force and effect, the Company hereby waives personal service of process
upon it
and consents that any such service of process may be made by certified
or
registered mail, return receipt requested, directed to the Company at its
address last specified for notices hereunder, and service so made shall
be
deemed completed five (5) days after the same shall have been so
mailed.
39
SECTION
7.8 Arbitration;
Settlement of Disputes.
In
the
event the Depositary has is advised that a judgment of a United States
court may
not be recognized or enforced in the R.O.C., the following provisions shall
apply:
(i) Any
controversy, claim or cause of action brought by any party or parties hereto
against any other party or parties hereto arising out of or relating to
the
Deposit Agreement shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrators may be entered in any
court
having jurisdiction thereof.
(ii) The
place
of the arbitration shall be the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America, and the language of the arbitration shall be
English.
(iii) The
number of arbitrators shall be three, each of whom shall be disinterested
in the
dispute or controversy, shall have no connection with any party thereto,
and
shall be an attorney experienced in international securities transactions.
Each party shall appoint one arbitrator and the two arbitrators shall
select a third arbitrator who shall serve as chairperson of the tribunal.
If a dispute, controversy or cause of action shall involve more than two
parties, the parties shall attempt to align themselves in two sides (i.e.,
claimant and respondent), each of which shall appoint one arbitrator as
if there
were only two parties to such dispute, controversy or cause of action.
If
either or both parties fail to select an arbitrator, or if such alignment
(in
the event there is more than two parties) shall not have occurred, within
sixty
(60) calendar days after the initiating party serves the arbitration demand
or
the two arbitrators fail to select a third arbitrator within sixty (60)
calendar
days of the selection of the second arbitrator, the American Arbitration
Association shall appoint the arbitrator or arbitrators in accordance with
its
rules. The parties and the American Arbitration Association may appoint
the arbitrators from among the nationals of any country, whether or not
a party
is a national of that country.
40
(iv) The
arbitrators shall have no authority to award damages not measured by the
prevailing party's actual damages and shall have no authority to award
any
consequential, special or punitive damages, and may not, in any event,
make any
ruling, finding or award that does not conform to the terms and conditions
of
the Deposit Agreement.
(v) In
the
event any third-party action or proceeding is instituted against the Depositary
relating to or arising from any act or failure to act by the Company, the
Company hereby submits to the personal jurisdiction of the court or
administrative agency in which such action or proceeding is
brought.
SECTION
7.9 Compliance
with U.S. Securities Laws.
Notwithstanding
anything in this Deposit Agreement to the contrary, the Company and the
Depositary each agrees that it will not exercise any rights it has under
this
Deposit Agreement to permit the withdrawal or delivery of Deposited Securities
in a manner which would violate the U.S. securities laws, including, but
not
limited to, Section I.A.(1) of the General Instructions to the Registration
Statement on Form F-6, as amended from time to time, under the Securities
Act of
1933.
SECTION
7.10 Waiver
of Immunities.
To
the
extent that the Company or any of its properties, assets or revenues may
have or
may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof,
from
setoff or counterclaim, from the jurisdiction of any court, from service
of
process, from attachment upon or prior to judgment, from attachment in
aid of
execution or judgment, or from execution of judgment, or other legal process
or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced,
with
respect to its obligations, liabilities or any other matter under or arising
out
of or in connection with the Shares or Deposited Securities, the American
Depositary Shares, the Receipts or this Deposit Agreement, the Company,
to the
fullest extent permitted by law, hereby irrevocably and unconditionally
waives,
and agrees not to plead or claim, any such immunity and consents to such
relief
and enforcement.
41
SECTION
7.11. Amendment
and Restatement of Old Deposit Agreement.
This
Deposit Agreement amends and restates the Old Deposit Agreement in its
entirety
to consist exclusively of the Deposit Agreement, and each Old Receipt is
hereby
deemed amended and restated to substantially conform to the form of Receipt
set
forth in Exhibit A annexed hereto, except that, to the extent any portion
of
either such amendment and restatement would prejudice any substantial existing
right of registered holders of Old Receipts, such portion shall not become
effective as to such registered holders until one-month after such registered
holders shall have received notice thereof, such notice to be conclusively
deemed given upon the mailing to such registered holders of notice of such
amendment and restatement which notice contains a provision whereby such
holders
can receive a copy of the form of Receipt.
42
IN
WITNESS WHEREOF, CHUNGHWA TELECOM CO., LTD. and JPMORGAN CHASE BANK, N.A.
have
duly executed this Deposit Agreement as of the day and year first set forth
above and all Holders and Beneficial Owners shall become parties hereto
upon
acceptance by them of Receipts issued in accordance with the terms
hereof.
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CHUNGHWA
TELECOM CO., LTD.
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By:
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Name:
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Title:
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JPMORGAN
CHASE BANK, N.A.,
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as
Depositary
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By:
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Name;
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Title:
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43
EXHIBIT
A
|
AMERICAN
DEPOSITARY SHARES
|
|
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(Each
American Depositary
|
|
|
Share
represents ten (10)
|
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|
deposited
Shares)
|
JPMORGAN
CHASE BANK, N.A.
AMERICAN
DEPOSITARY RECEIPT
FOR
COMMON SHARES
PAR
VALUE OF NT$10 EACH OF
CHUNGHWA
TELECOM CO., LTD.
(INCORPORATED
UNDER THE LAWS OF THE REPUBLIC OF CHINA)
JPMorgan
Chase Bank, N.A., as depositary (hereinafter called the "Depositary"),
hereby
certifies that _______________________________________________, or registered
assigns IS THE HOLDER OF _____________________________
AMERICAN DEPOSITARY SHARES
representing deposited common shares, par value NT$10 per share, of CHUNGHWA
TELECOM CO., LTD., a company limited by shares, incorporated under the
laws of
the Republic of China (herein called the "Company"). At the date hereof,
each American Depositary Share represents ten (10) Shares deposited or
subject
to deposit under the Deposit Agreement (as such term is hereinafter defined)
at
the Taipei, Taiwan office of the JPMorgan
Chase Bank, N.A.
(herein
called the "Custodian").
THE
DEPOSITARY'S OFFICE ADDRESS IS
▇
▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇.
A-1
1. THE
DEPOSIT AGREEMENT.
This
American Depositary Receipt is one of an issue (herein called "Receipts"),
all
issued and to be issued upon the terms and conditions set forth in the
Amended
and Restated Deposit Agreement, as of November , 2007 (herein called the
"Deposit Agreement"), by and among the Company, the Depositary, and all
Holders
and Beneficial Owners from time to time of Receipts issued thereunder,
each of
whom by accepting a Receipt agrees to become a party thereto and become
bound by
all the terms and conditions thereof. The Deposit Agreement sets forth the
rights of Holders and Beneficial Owners of the Receipts and the rights
and
duties of the Depositary in respect of the Shares deposited thereunder
and any
and all other securities, property and cash from time to time received
in
respect of such Shares and held thereunder (such Shares, securities, property,
and cash are herein called "Deposited Securities"). Copies of the Deposit
Agreement are on file at the Depositary's Office in New York City and at
the
office of the Custodian.
The
statements made on the face and reverse of this Receipt are summaries of
certain
provisions of the Deposit Agreement and are qualified by and subject to
the
detailed provisions of the Deposit Agreement, to which reference is hereby
made.
Capitalized terms defined in the Deposit Agreement and not defined herein
shall have the meanings set forth in the Deposit Agreement.
2. SURRENDER
OF RECEIPTS AND WITHDRAWAL OF SHARES.
Provided
that the Company has delivered to the Custodian physical share certificates
represented by the Certificate of Payment in respect of a deposit of Shares
in
connection with an offering, upon payment of the fee of the Depositary
for the
surrender and cancellation of ADRs as provided in Section 5.09 of the Deposit
Agreement and payment of all taxes (including any securities transaction
tax)
and governmental charges payable in connection with such surrender and
withdrawal of the Deposited Securities, and subject to the terms and conditions
of the Deposit Agreement and the transfer restrictions applicable to the
shares,
if any, the Holder of such Receipt shall be entitled to delivery, to him
or upon
his order, of the amount Deposited Securities at the time represented by
the
ADSs evidenced by such ADR.
Delivery
of such Deposited Securities may be made by the delivery of
(a) certificates in the name of such Holder or as ordered by him or
certificates properly endorsed or accompanied by proper instruments of
transfer
to such Holder or as ordered by him and (b) any other securities, property
and cash to which such Holder is then entitled in respect of such Receipts
to
such Holder or as ordered by him. Such delivery will be made at the option
of the Holder hereof, either at the office of the Custodian or at the
Depositary's Office, provided
that the
forwarding of certificates for Shares or other Deposited Securities for
such
delivery at the Depositary's Office shall be at the risk and expense of
the
Holder hereof.
The
Depositary shall not deliver Deposited Securities to a Holder in accordance
with
this Article (3) unless such Holder presents evidence of payment of any
securities transaction tax which may be imposed under R.O.C. law, unless
the
Company shall have advised the Depositary that no such tax is assessable
in
connection with the withdrawal of Deposited Securities under the Deposit
Agreement.
A-2
Notwithstanding
anything to the contrary in Section 2.05 of the Deposit Agreement, the
Holder of
Temporary ADSs representing an interest in the Certificate of Payment deposited
in connection with an offering shall not be entitled to withdraw any Deposited
Securities.
3. TRANSFERS,
SPLIT-UPS, AND COMBINATIONS OF RECEIPTS.
The
transfer of this Receipt is registrable on the books of the Depositary
by the
Holder hereof in person or by a duly authorized attorney, upon surrender
of this
Receipt properly endorsed for transfer or accompanied by proper instruments
of
transfer and funds sufficient to pay any applicable transfer taxes and
the
expenses of the Depositary and upon compliance with such regulations, if
any, as
the Depositary may establish for such purpose. This Receipt may be split
into other such Receipts, or may be combined with other such Receipts into
one
Receipt, evidencing the same aggregate number of American Depositary Shares
as
the Receipt or Receipts surrendered. As a condition precedent to the
execution and delivery, registration of transfer, split-up, combination,
or
surrender of any Receipt or withdrawal of any Deposited Securities, the
Depositary, the Custodian, or Registrar may require payment from the depositor
of the Shares or the presentor of the Receipt of a sum sufficient to reimburse
it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge
and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees as provided in this Receipt, may require the production
of proof
satisfactory to it as to the identity and genuineness of any signature
and may
also require compliance with any reasonable regulations the Depositary
may
establish consistent with the provisions of the Deposit Agreement or this
Receipt, including, without limitation, this Article (3).
The
Depositary and the Company have been advised that under current R.O.C.
law, no
deposits of Shares may be made in the depositary receipt facility, and
no ADSs
may be issued against such deposits, without specific approval of the R.O.C.
Financial Supervisory Commission (the “FSC”) except in connection with the
offering and the issuance of additional ADSs in connection with (i) dividends
on
or free distributions of Shares, (ii) the exercise by Holders of their
pre-emptive rights applicable to Shares evidenced by ADSs in the event
of
capital increases for cash or (iii) as permitted hereunder, the purchase
directly by any person or through the Depositary of Shares on the Taiwan
Stock
Exchange for deposit in the depositary receipt facility, provided
that the
total number of ADSs outstanding after an issuance described in clause
(iii)
does not exceed the number of issues ADSs previously approved by the FSC
(plus
any ADSs created pursuant to clauses (i) and (ii) above). The Depositary
and the Company have been advised that under current R.O.C. law, issuances
under
clause (iii) above will be permitted only to the extent that previously
issued
ADSs have been canceled and the underlying Shares have been withdrawn from
the
depositary receipt facility. The Depositary may not accept any Shares for
deposit pursuant to clause (iii) unless it receives evidence satisfactory
(which
may be in the form of opinions of R.O.C. and U.S. counsel)to the effect
that
such Shares may lawfully be deposited pursuant to the Deposit Agreement
and are
not Restricted Securities. The laws of the R.O.C. applicable to the
deposit of Shares may change from time to time. There can be no assurance
that current laws will continue in effect or that future changes of R.O.C.
law
will not adversely affect the ability to deposit Shares under the Deposit
Agreement.
A-3
The
Depositary and the Custodian will each refuse to accept for deposit Shares
or
other securities that it reasonably believes to be Restricted Securities.
Persons depositing Shares, other than in connection with an issuance
approved by the FSC or by the Company depositing Shares constituting a
free
distribution of Shares by way of dividend or stock split, will be required
to
present appropriate evidence (including opinions of counsel if requested)
satisfactory to the Depositary and the Custodian that such Shares and the
issuance of the ADRs evidencing the ADSs issuable upon such deposit are
not
Restricted Securities.
The
delivery of Receipts against deposit of Shares generally or against deposit
of
particular Shares may be suspended, or the 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 Depositary are closed, or if any such action is deemed necessary
or
advisable by the Depositary or the Company at any time or from time to
time
because of any requirement of law or of any government or governmental
body or
commission, or under any provision of the Deposit Agreement or this Receipt,
or
for any other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in the Deposit Agreement or this
Receipt, the surrender of outstanding Receipts and withdrawal of Deposited
Securities may not be suspended subject only to (i) temporary delays caused
by
closing the transfer books of the Depositary or the Company or the deposit
of
Shares in connection with voting at a shareholders' meeting or the payment
of
dividends, (ii) the payment of fees, taxes and similar charges, and (iii)
compliance with any U.S. or foreign laws or governmental regulations relating
to
the Receipts or to the withdrawal of the Deposited Securities. Without
limitation of the foregoing, the Depositary shall not knowingly accept
for
deposit under the Deposit Agreement any Shares required to be registered
under
the provisions of the Securities Act of 1933, unless a registration statement
is
in effect as to such Shares.
4. LIABILITY
OF HOLDER OR BENEFICIAL OWNER FOR TAXES.
If
any
tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities represented hereby (including any securities
transaction tax), such tax or other governmental charge shall be payable
by the
Holder or Beneficial Owner hereof to the Depositary. The Depositary may
refuse to effect any transfer of this Receipt or any withdrawal of Deposited
Securities represented by American Depositary Shares evidenced by such
Receipt
until such payment is made, and may withhold any dividends or other
distributions, or may sell for the account of the Holder or Beneficial
Owner
hereof any part or all of the Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, and may apply such dividends
or
other distributions or the proceeds of any such sale in payment of such
tax or
other governmental charge and the Holder or Beneficial Owner hereof shall
remain
liable for any deficiency.
A-4
5. REPRESENTATIONS
AND WARRANTIES ON DEPOSIT, TRANSFER, SURRENDER AND WITHDRAWAL OF SHARES
OR
RECEIPTS.
Each
person presenting Shares for deposit under the Deposit Agreement shall
be deemed
thereby to represent and warrant that (i) such Shares and each certificate
therefore, are duly and validly authorized, issued and outstanding, fully
paid
and non-assessable and free of any preemptive rights of the holders of
outstanding shares and (ii) the person making such deposit is duly authorized
so
to do. Such representations and warranties shall survive the deposit and
withdrawal of Shares and the issuance or cancellation of Receipts or adjustments
in the Depositary’s records in respect thereof.
Each
person depositing Shares, taking delivery of or transferring Receipts or
any
beneficial interest therein, or surrendering Receipts or any beneficial
interest
therein and withdrawing Shares under the Deposit Agreement shall be deemed
thereby to represent and warrant that such Shares or Receipts are not Restricted
Securities and that any such deposit, transfer or surrender and withdrawal
is
not restricted under the Securities Act of 1933 and is in accordance with
the
applicable restrictions and conditions on transferability set forth in
the
Deposit Agreement, in each case in accordance with any applicable securities
laws of any State of the United States. Such representations and
warranties shall survive any such deposit, transfer or surrender and withdrawal
of the Shares or the receipts or beneficial interest therein.
6. FILING
PROOFS, CERTIFICATES, AND OTHER INFORMATION.
Any
person presenting Shares for deposit or any Holder or Beneficial Owner
of a
Receipt may be required from time to time to file with the Depositary or
the
Custodian such proof of citizenship or residence, exchange control
approval,
legal or
beneficial ownership
or such
information relating to the registration on the books of the Company or
the
Foreign Registrar, if applicable, compliance
with applicable laws and the terms of this Deposit Agreement or other
information, to
execute such certificates and to make such representations and warranties,
as
the Depositary may deem necessary or proper. The Depositary may withhold
the
delivery or registration of transfer of any Receipt or the distribution
of any
dividend or sale or distribution of rights or of the proceeds thereof or
the
delivery of any Deposited Securities until such proof or other information
is
filed or such certificates are executed or such representations and warranties
made and any required exchange control approval obtained. No Share shall
be accepted for deposit unless accompanied by evidence reasonably satisfactory
to the Depositary (which may be an opinion of counsel) that any necessary
approval has been granted by any governmental body in the R.O.C.
A-5
7. CHARGES
OF DEPOSITARY.
The
Company agrees to pay the fees, reasonable expenses and out-of-pocket charges
of
the Depositary and those of any Registrar only in accordance with agreements
in
writing entered into between the Depositary and the Company from time to
time.
The Depositary shall present its statement for such charges and expenses
to the Company once every three months. The charges and expenses of the
Custodian are for the sole account of the Depositary.
The
following charges shall be incurred by any party depositing or withdrawing
Shares or by any party surrendering Receipts or to whom Receipts are issued
(including, without limitation, issuance pursuant to a stock dividend or
stock
split declared by the Company or an exchange of stock regarding the Receipts
or
Deposited Securities or a distribution of Receipts pursuant to Section 4.03
of the Deposit Agreement), or by Holders, as applicable: (1) taxes
and other governmental charges, (2) such registration fees as may from time
to time be in effect for the registration of transfers of Shares generally
on
the Share register of the Company or Foreign Registrar and applicable to
transfers of Shares to or from the name of the Depositary or its nominee
or the
Custodian or its nominee on the making of deposits or withdrawals under
the
Deposit Agreement, (3) such cable, telex and facsimile transmission
expenses as are expressly provided in the Deposit Agree-ment, (4) such
expenses as are incurred by the Depositary in the conversion of foreign
currency
pursuant to Section 4.05, (5) a fee of $5.00 or less per 100 American
Depositary Shares (or portion thereof) for the execution and delivery of
Receipts pursuant to Section 2.03, 4.03 or 4.04 of the Deposit Agreement
and the surrender of Receipts pursuant to Section 2.05 or 6.02 of the
Deposit Agreement, (6) a fee of $.02 or less per American Depositary Share
(or portion thereof) for any cash distribution made pursuant to the Deposit
Agreement, including, but not limited to Sections 4.01 through 4.04 of
the
Deposit Agreement to the extent permitted by the rules of any securities
exchange on which the American Depositary Shares may be listed for trading,
(7) a fee for the distribution of securities pursuant to Section 4.02
of the Deposit Agreement, such fee being in an amount equal to the fee
for the
execution and delivery of American Depositary Shares referred to above
which
would have been charged as a result of the deposit of such securities (for
purposes of this clause 7 treating all such securities as if they were
Shares) but which securities are instead distributed by the Depositary
to
Holders and (8) any other charge payable by the Depositary, any of the
Depositary's agents, including the Custodian, or the agents of the Depositary's
agents in connection with the servicing of Shares or other Deposited Securities
(which charge shall be assessed against Holders as of the date or dates
set by
the Depositary in accordance with Section 4.06 of the Deposit Agreement
and
shall be payable at the sole discretion of the Depositary by billing such
Holders for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
The
Depositary, subject to Section 2.09 of the Deposit Agreement, may own and
deal in any class of securities of the Issuer and its affiliates and in
Receipts.
8. PRE-RELEASE
OF RECEIPTS.
Notwithstanding
Section 2.03 of the Deposit Agreement, the Depositary may execute and deliver
Receipts prior to the receipt of Shares pursuant to Section 2.02 of the
Deposit
Agreement (a "Pre-Release"). The Depositary may, pursuant to Section 2.05
of the Deposit Agreement, deliver Shares upon the receipt and cancellation
of
Receipts which have been Pre-Released, whether or not such cancellation
is prior
to the termination of such Pre-Release or the Depositary knows that such
Receipt
has been Pre-Released. The Depositary may receive Receipts in lieu of
Shares in satisfaction of a Pre-Release. Each Pre-Release will be (a)
preceded or accompanied by a written representation from the person to
whom
Receipts or Shares are to be delivered that such person, or its customer,
owns
the Shares or Receipts to be remitted, as the case may be, (b) at all times
fully collateralized with cash 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 number of American
Depositary Shares which are outstanding at any time as a result of Pre-Releases
will not normally exceed thirty percent (30%) of the Shares deposited under
the
Deposit Agreement; provided,
however,
that
the Depositary reserves the right to change or disregard such limit from
time to
time as it deems appropriate.
A-6
The
Depositary may retain for its own account any compensation received by
it in
connection with the foregoing.
9. TITLE
TO RECEIPTS.
It
is a
condition of this Receipt and every successive Holder and Beneficial Owner
of
this Receipt by accepting or holding the same consents and agrees, that
title to
this Receipt when properly endorsed or accompanied by proper instruments
of
transfer, is transferable by delivery with the same effect as in the case
of a
negotiable instrument under the laws of New York; provided,
however,
that
the Depositary, notwithstanding any notice to the contrary, may treat the
person
in whose name this Receipt is registered on the books of the Depositary
as the
absolute owner hereof for the purpose of determining the person entitled
to
distribution of dividends or other distributions or to any notice provided
for
in the Deposit Agreement or for all other purposes.
10. VALIDITY
OF RECEIPT.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement
or be
valid or obligatory for any purpose, unless this Receipt shall have been
executed by the Depositary by the manual signature of a duly authorized
signatory of the Depositary; provided,
however
that
such signature may be a facsimile if a Registrar for the Receipts shall
have
been appointed and such Receipts are countersigned by the manual of a duly
authorized officer of the Registrar.
11. REPORTS;
INSPECTION OF TRANSFER BOOKS.
The
Company is subject to the periodic reporting requirements of the Securities
Exchange Act of 1934 and, accordingly, files certain reports with the
Commission. Such reports will be available for inspection and copying at
the public reference facilities maintained by the Commission located at
▇▇▇ ▇
▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
A-7
The
Depositary will make available for inspection by Holders and Beneficial
Owners
of Receipts at the Depositary's Office any reports and communications,
including
any proxy soliciting material, received from the Company which are both
(a) received by the Depositary as the holder of the Deposited Securities
and (b) made generally available to the holders of such Deposited
Securities by the Company. The Depositary will also, upon written request,
send to Holders of Receipts copies of such reports furnished by the Company
pursuant to the Deposit Agreement. Any such reports and communications,
including any such proxy soliciting material, furnished to the Depositary
by the
Company shall be furnished in English to the extent such materials are
required
to be translated into English pursuant to any regulations of the Commission
or
any stock exchange on which the American Depositary Shares are
listed.
The
Depositary will keep books, at the Depositary's Office, for the registration
of
Receipts and transfers of Receipts which at all reasonable times shall
be open
for inspection by the Holders of Receipts, provided
that
such inspection shall not be for the purpose of communicating with Holders
of
Receipts in the interest of a business or object other than the business
of the
Company or a matter related to the Deposit Agreement or the Receipts. The
Depositary agrees that it will not otherwise disclose any information set
forth
in such records except as requested or authorized in writing by the Company
or
as required by law.
12. DIVIDENDS
AND DISTRIBUTIONS.
Whenever
the Depositary receives any cash dividend or other cash distribution on
any
Deposited Securities, the Depositary will, if at the time of receipt thereof
any
amounts received in a foreign currency can in the judgment of the Depositary
be
converted on a reasonable basis into United States dollars transferable
to the
United States, and subject to the Deposit Agreement, convert as soon as
reasonably practicable such dividend or distribution into Dollars and will
distribute the amount thus received (net of the fees and expenses of the
Depositary as provided in Article (8) hereof and Section 5.09 of the
Deposit Agreement) to the Holders of Receipts entitled thereto; provided,
however,
that in
the event that the Company 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, the amount distributed
to
the Holders of the Receipts evidencing American Depositary Shares representing
such Deposited Securities shall be reduced accordingly.
Subject
to the provisions of Sections 4.11 and 5.09 of the Deposit Agreement,
whenever the Depositary receives any distribution other than a distribution
described in Section 4.01, 4.03 or 4.04 of the Deposit Agreement, the
Depositary will cause the securities or property received by it to be
distributed to the Holders entitled thereto, in any manner that the Depositary
may deem equitable and practicable for accomplishing such distribution;
provided,
however,
that if
in the reasonable opinion of the Depositary such distribution cannot be
made
proportionately among the Holders of Receipts entitled thereto, or if for
any
other reason the Depositary deems such distribution not to be feasible,
the
Depositary may adopt such method as it may deem equitable and practicable
for
the purpose of effecting such distribution, including, but not limited
to, the
public or private sale of the securities or property thus received, or
any part
thereof, and the net proceeds of any such sale (net of the fees and expenses
of
the Depositary as provided in Article (8) hereof and Section 5.09 of
the Deposit Agreement) will be distributed by the Depositary to the Holders
of
Receipts entitled thereto all in the manner and subject to the conditions
described in Section 4.01 of the Deposit Agreement.
A-8
If
any
distribution consists of a dividend in, or free distribution of, Shares,
the
Depositary may, and will if the Company so requires distribute to the Holders
of
outstanding Receipts entitled thereto, additional Receipts evidencing an
aggregate number of American Depositary Shares representing the amount
of Shares
received as such dividend or free distribution subject to the terms and
conditions of the Deposit Agreement with respect to the deposit of Shares
and
the issuance of American Depositary Shares evidenced by Receipts, including
the
withholding of any tax or other governmental charge as provided in Section
4.11
of the Deposit Agreement and the payment of the fees and expenses of the
Depositary as provided in Article (8) hereof and Section 5.09 of the
Deposit Agreement. The Depositary may withhold any such distribution of
Receipts if it has not received satisfactory assurances from the Company
(which
may be an opinion of counsel) that such distribution does not require
registration under the Securities Act of 1933 or is exempt from registration
under the provisions of such Act. If additional Receipts are not so
distributed, each American Depositary Share shall thenceforth also represent
the
additional Shares distributed upon the Deposited Securities represented
thereby.
In lieu of delivering Receipts for fractional American Depositary Shares
in any such case, the Depositary will sell the amount of Shares represented
by
the aggregate of such fractions and distribute the net proceeds, all in
the
manner and subject to the conditions described in Section 4.01 of the Deposit
Agreement.
In
the
event that the Depositary determines that any distribution in property
(including Shares and rights to subscribe therefor) is subject to any tax
or
other governmental charge which the Depositary is obligated to withhold,
the
Depositary may by public or private sale dispose of all or a portion of
such
property (including Shares and rights to subscribe therefor) in such amounts
and
in such manner as the Depositary deems necessary and practicable to pay
any such
taxes or charges, and the Depositary shall distribute the net proceeds
of any
such sale after deduction of such taxes or charges to the Holders of Receipts
entitled thereto.
13. RIGHTS.
In
the
event that the Company shall offer or cause to be offered to the holders
of any
Deposited Securities any rights to subscribe for additional Shares or any
rights
of any other nature, the Depositary shall have discretion as to the procedure
to
be followed in making such rights available to any Holders or in disposing
of
such rights on behalf of any Holders and making the net proceeds available
in
Dollars to such Holders or, if by the terms of such rights offering or
for any
other reason, the Depositary may not either make such rights available
to any
Holders or dispose of such rights and make the net proceeds available to
such
Holders, then the Depositary shall allow the rights to lapse. If at the
time of the offering of any rights the Depositary determines in its discretion
that it is lawful and feasible to make such rights available to all or
certain
Holders but not to other Holders, the Depositary may distribute to any
Holder to
whom it determines the distribution to be lawful and feasible, in proportion
to
the number of American Depositary Shares held by such Holder, warrants
or other
instruments therefor in such form as it deems appropriate.
A-9
In
circumstances in which rights would otherwise not be distributed, if a
Holder of
Receipts requests the distribution of warrants or other instruments in
order to
exercise the rights allocable to the American Depositary Shares of such
Holder
under the Deposit Agreement, the Depositary will make such rights available
to
such Holder upon written notice from the Company to the Depositary that
(a) the Company has elected in its sole discretion to permit such rights to
be exercised and (b) such Holder has executed such documents as the Company
has determined in its sole discretion are reasonably required under applicable
law.
If
the
Depositary has distributed warrants or other instruments for rights to
all or
certain Holders, then upon instruction from such a Holder pursuant to such
warrants or other instruments to the Depositary from such Holder to exercise
such rights, upon payment by such Holder to the Depositary for the account
of
such Holder of an amount equal to the purchase price of the Shares to be
received upon the exercise of the rights, and upon payment of the fees
and
expenses of the Depositary and any other charges as set forth in such warrants
or other instruments, the Depositary shall, on behalf of such Holder, exercise
the rights and purchase the Shares, and the Company shall cause the Shares
so
purchased to be delivered to the Depositary or the Custodian on behalf
of such
Holder. As agent for such Holder, the Depositary will cause the Shares so
purchased to be deposited pursuant to Section 2.02 of the Deposit
Agreement, and shall, pursuant to Section 2.03 of the Deposit Agreement,
execute and deliver Receipts to such Holder. In the case of a distribution
pursuant to the second paragraph of this Article (13), such Receipts shall
be legended in accordance with applicable laws, and shall be subject to
the
appropriate restrictions on sale, deposit, cancellation, and transfer under
such
laws.
If
the
Depositary determines in its discretion that it is not lawful and feasible
to
make such rights available to all or certain Holders, it may sell the rights,
warrants or other instruments in proportion to the number of American Depositary
Shares held by the Holders to whom it has determined it may not lawfully
or
feasibly make such rights available, and allocate the net proceeds of such
sales
(net of the fees and expenses of the Depositary as provided in Section 5.09
of the Deposit Agreement and all taxes and governmental charges payable
in
connection with such rights and subject to the terms and conditions of
the
Deposit Agreement) for the account of such Holders otherwise entitled to
such
rights, warrants or other instruments, upon an averaged or other practical
basis
without regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any Receipt, Receipts or
otherwise.
The
Depositary will not offer rights to Holders unless both the rights and
the
securities to which such rights relate are either exempt from registration
under
the Securities Act of 1933 with respect to a distribution to Holders or
are
registered under the provisions of such Act; provided,
that
nothing in the Deposit Agreement shall create, or be construed to create,
any
obligation on the part of the Company to file a registration statement
with
respect to such rights or underlying securities or to endeavor to have
such a
registration statement declared effective. If a Holder of Receipts
requests the distribution of warrants or other instruments, notwithstanding
that
there has been no such registration under such Act, the Depositary shall
not
effect such distribution unless it has received an opinion from recognized
counsel in the United States to the Company upon which the Depositary may
rely
that such distribution to such Holder is exempt from such
registration.
A-10
The
Depositary shall not be responsible for any determination or failure to
determine that it may be lawful or feasible to make such rights available
to
Holders in general or any Holder in particular.
14. CONVERSION
OF FOREIGN CURRENCY.
Whenever
the Depositary or the Custodian shall receive foreign currency, by way
of
dividends or other distributions or the net proceeds from the sale of
securities, property or rights, and if at the time of the receipt thereof
the
foreign currency so received can in the judgment of the Depositary be converted
on a reasonable basis into Dollars and the resulting Dollars transferred
to the
United States, the Depositary shall convert or cause to be converted, by
sale or
in any other manner that it may determine, such foreign currency into Dollars,
and such Dollars shall be distributed to the Holders entitled thereto or,
if the
Depositary shall have distributed any warrants or other instruments which
entitle the holders thereof to such Dollars, then to the holders of such
warrants and/or instruments upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of exchange restrictions,
the date of delivery of any Receipt or otherwise and shall be net of any
expenses of conversion into Dollars incurred by the Depositary as provided
in
Section 5.09 of the Deposit Agreement.
If
such
conversion or distribution can be effected only with the approval or license
of
any government or agency thereof, the Depositary shall file such application
for
approval or license, if any, as it may deem desirable.
If
at any
time the Depositary shall determine that in its judgment any foreign currency
received by the Depositary or the Custodian is not convertible on a reasonable
basis into Dollars transferable to the United States, or if any approval
or
license of any government or agency thereof which is required for such
conversion is denied or in the opinion of the Depositary, after consultation
with the Company, is not obtainable, or if any such approval or license
is not
obtained within a reasonable period as determined by the Depositary, the
Depositary may distribute the foreign currency (or an appropriate document
evidencing the right to receive such foreign currency) received by the
Depositary or the Custodian to, or in its discretion may hold such foreign
currency uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled to receive the same.
A-11
If
any
such conversion of foreign currency, in whole or in part, cannot be effected
for
distribution to some of the Holders entitled thereto, the Depositary may
in its
discretion make such conversion and distribution in Dollars to the extent
permissible to the Holders entitled thereto and may distribute the balance
of
the foreign currency received by the Depositary to, or hold such balance
uninvested and without liability for interest thereon for the respective
accounts of, the Holders entitled thereto.
15. RECORD
DATES.
Whenever
any cash dividend or other cash distribution shall become payable or any
distribution other than cash shall be made, or whenever rights shall be
issued
with respect to the Deposited Securities, or whenever the Depositary shall
receive notice of any meeting of holders of Shares or other Deposited
Securities, or whenever for any reason the Depositary causes a change in
the
number of Shares that are represented by each American Depositary Share,
or
whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date, (a) for the determination of the Holders of
Receipts who shall be (i) entitled to receive such dividend, distribution
or rights or the net proceeds of the sale thereof or (ii) entitled to give
instructions for the exercise of voting rights at any such meeting, (b) on
or after which each American Depositary Share will represent the changed
number
of Shares, subject to the provisions of the Deposit Agreement or (c) for
such other purpose as the Depositary finds necessary or convenient, which
date
shall be the same date or as near as possible to the corresponding record
date
fixed by the Company.
16. VOTING
OF DEPOSITED SECURITIES.
(a) The
Holders hereby appoint the Depositary as their representative to exercise
voting
rights with respect to the Shares represented by the ADSs in the following
manner. The Company agrees to provide the Depositary no later than the
business day (the "Cutoff Date") that is at least twenty-four (24) calendar
days
prior to any meeting of shareholders (such period covering the date of
dispatch
of such notice and the date of the meeting of shareholders) with sufficient
copies of the annual report or other relevant report, as the Depositary
may
reasonably request. Upon the written request of the Company, the
Depositary will, at the sole cost and expense of the Company, duplicate
for
distribution a sufficient amount of documents specified by the Company
to be
duplicated and distributed, including a copy of notices of meetings of
the
shareholders of the Company and the agenda therefor and any voting instruction
forms, as well as English translations thereof (containing an indication
of the
number of directors or supervisors to be elected in the case of an election
of
directors or supervisors) by which each Holder may give instructions to
the
Depositary to vote (i) for or against each resolution specified in the
agenda for the meeting and (ii) on a cumulative basis, for the persons
designated by such Holder as directors and supervisors (the "Materials").
Upon receipt of the Materials, the Depositary shall, as soon as
practicable thereafter, fix a record date for determining the Holders entitled
to receive information as to such meeting as provided in Section 4.06 of
the
Deposit Agreement and shall mail the Materials to such Holders. If the
Company fails to supply the Materials to the Depositary by the Cutoff Date,
the
Depositary shall be under no obligation to mail the Materials to Holders
and,
subject to the provisions described below, will cause all Deposited Securities
represented by the ADRs to be present at the relevant meeting of shareholders
insofar as practicable and permitted under applicable law but will not
vote or
notify any voting instructions relating to any such Deposited Securities.
In order for voting instructions with respect to an ADS to be valid, the
instructions must be completed and duly signed by the Holder of such ADS
on the
record date established by the Depositary and returned to the Depositary
by such
date. The Depositary shall exercise voting rights with respect to the ADS
only in accordance with valid voting instructions.
A-12
Subject
to the provisions described in the following paragraph, which will apply
to the
election of directors and supervisors, if a Holder or Holders together
holding
at least 51% of the ADSs outstanding at the relevant record date instruct
the
Depositary to vote in the same manner in respect of one or more resolutions
to
be proposed at the meeting (other than the election of directors or
supervisors), the Depositary will notify the instructions to the Designated
Representative (as defined below in this Section 4.7) or such other person
as he
may designate (the "Substitute") and appoint the Designated Representative
or
the Substitute as the representative of the Depositary and Holders to attend
such meeting and vote all the Deposited Securities represented by ADSs
in the
manner so instructed by such Holders in relation to such resolution or
resolutions. If, for any reason, the Depositary has not by the date
specified by it received instructions from a Holder or Holders together
holding
at least 51% of all the ADSs outstanding at the relevant record date to
vote in
the same manner in respect of any resolution (other than the election of
directors or supervisors), then such Holders will be deemed to have instructed
the Depositary to authorize and appoint the Designated Representative or
the
Substitute as the representative of the Depositary and the Holders to attend
such meeting and vote, at his sole discretion, all the Deposited Securities
represented by all ADSs, which may not be in the interest of the Holders;
provided,
however,
that no
such authorization shall be given with respect to any matter as to which
the
Designated Representative informs the Depositary that he does not wish
to be so
authorized, in which event the Depositary will not vote at the relevant
meeting
but will take such action as is necessary to cause all the Deposited Securities
to be counted for the purpose of satisfying applicable quorum
requirements.
The
Depositary will notify the Designated Representative or the Substitute
of the
instructions for the election of directors and supervisors received from
Holders
and appoint the Designated Representative or the Substitute as the
representative of the Depositary and the Holders to attend such meeting
and,
subject to the provisions described in this paragraph, vote the Deposited
Securities represented by ADSs as to which the Depositary has received
instructions from Holders for the election of directors and supervisors
in the
manner so instructed, subject to any restrictions imposed by R.O.C. law,
rule or
regulation or the Articles of Association of the Company. Holders who by
the date specified by the Depositary have not delivered instructions to
the
Depositary, will be deemed to have instructed the Depositary to authorize
the
Designated Representative or the Substitute as the representative of the
Depositary and the Holders to attend such meeting and vote, at his sole
discretion, all the Deposited Securities represented by ADSs as to which
the
Depositary has not received instructions from the Holders for the election
of
directors and supervisors, which may not be in the interest of the Holders;
provided,
however,
that no
such authorization shall be given with respect to any election of directors
or
supervisors as to which the Designated Representative informs the Depositary
that he does not wish to be so authorized, in which event the Depositary
will
attend such meeting and will vote those Deposited Securities represented
by the
ADSs as to which it has received instructions from Holders for the election
of
directors and supervisors in the manner so instructed; provided further,
that
the Depositary will not vote at the relevant meeting any Deposited Securities
represented by ADSs, as to which the Depositary has not received instructions
from the Holders for the election of directors and supervisors but will
take
such action as is necessary to cause all the Deposited Securities to be
counted
for the purpose of satisfying applicable quorum requirements.
A-13
By
continuing to hold ADRs, all Holders will be deemed to have agreed to these
voting provisions, as they may be amended from time to time.
The
Depositary will not, and the Depositary will endeavor to ensure that the
Custodian and their respective nominees (including the Designated
Representative) do not (except as described above), exercise any discretion
as
to voting, nor vote or attempt to exercise the right to vote that attaches
to
the Deposited Securities, other than in accordance with instructions received
as
herein provided.
"Designated
Representative" means the person who is the Chairman of the Company from
time to
time.
Beneficial
Owners are entitled to exercise their voting rights only through the procedures
applicable to the respective Holders of the ADRs in which they have a beneficial
interest.
(b) Shareholders
proposal rights.
Holders
that individually or together with other Holders hold at least 51% of the
ADSs
outstanding at the Shareholder Record Date are entitled to submit each
year one
written proposal (the "Proposal") for voting at the general meeting of
shareholders of the Company; provided, that
(i) the
Proposal is in the Chinese language and does not exceed 300 Chinese characters
in length (interpunction marks are included in the calculation of 300
charter,
(ii) the
Proposal is submitted to the Depositary at least five (5) Business Days
prior to
the expiry of the Submission Period, which Submission Period shall be publicly
announced by the Company each year in a report on Form 6-K filed with the
Commission prior to the commencement of the sixty (60) calendar day closed
period for general meetings of shareholders of the Company,
(iii) the
Proposal is accompanied by a written certificate to the Depositary (the
"First
Certificate"), in the form required by the Depositary, certifying that
the
Proposal is being submitted by Holders ("Submitting Holders") that individually
or together with other Holders hold at least 51% of the ADSs outstanding
at the
Submission Date and, if the Submission Date is on or after the Shareholder
Record Date, also certifying that the Submitting Holders held at least
51% of
the ADSs outstanding as of the Shareholder Record Date,
A-14
(iv) if
the
Submission Date is prior to the Shareholder Record Date, the Submitting
Holders
must also provide, within three (3) Business Days after the Shareholder
Record
Date, a second written certificate (the "Second Certificate") to the Depositary,
in the form required by the Depositary, certifying that the Submitting
Holders
continued to hold at least 51% of the ADSs outstanding at the Shareholder
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 Certificate
or the Second 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 general meeting of the shareholders of the Company (including the
costs
and expenses of the Depositary or its agent to attend the general meeting
of the
shareholders of the Company) as such fees and expenses may be reasonably
determined and documented by the Depositary or the Company, and
(vi) the
Proposal shall only be voted upon at the general meeting of shareholders
of the
Company if the Proposal is accepted by the board of directors of the Company
as
eligible in accordance with law for consideration at a shareholders
meeting.
Any
Proposal received by the Depositary which the Depositary reasonably believes
to
be in full compliance with the preceding paragraph shall be submitted by
the
Depositary to the Company prior to the expiration of the Submission Period.
The
Depositary shall withdraw any Proposal so submitted as to which the Depositary
has not received within three (3) Business Days after the Shareholder Record
Date any Second Certificate required under the preceding paragraph. In
determining whether any Proposal meets the requirements set forth above,
the
Depositary may rely upon a statement set forth in the First Certificate
or
Second Certificate stating that the Proposal is in full compliance with
the
requirements set forth in the preceding paragraph. The Depositary has no
obligation to perform any investigation in connection with any Proposal.
Notwithstanding
anything contained in the Deposit Agreement or any ADR, 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
Proposal submission period, or the receipt of any Proposal from Holders
or
Beneficial Owners, or of the holdings of any ADSs by any persons, except
that
the Depositary shall, upon a Holder's written request, inform such Holder
of the
total number of ADSs then issued and outstanding.
(c) Shareholders
nomination right. Holders
and Beneficial Owners of ADSs do not have individual nomination rights.
In the
event that the Company were to amend its Articles of Incorporation to adopt
a
Candidate Nomination System, the Depositary would, if so requested by a
Holder
or 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) and/or Holders, the
"Nominating Holder(s)"), submit to the Company for consideration at a meeting
of
the Company's shareholders involving the election of directors one (1)
Nomination, provided that:
A-15
(i) subject
to any applicable provision with respect to nomination of a director under
the
Articles of Incorporation of the Company, the number of director candidates
contained in the Nomination shall not exceed the number of the directors
to be
elected at such meeting,
(ii) the
Nomination shall contain the name, educational background and past work
experience of each director candidate identified in the Nomination,
(iii) the
Nomination shall include a letter of consent issued by each director candidate
identified in the Nomination consenting to act as director if she/he/it
is
elected as such,
(iv) a
written
statement by each director candidate assuring that she/he/it is not in
violation
of any of the circumstances set forth in Article 30 of the ROC Company
Law, as
amended,
(v) if
the
Nomination involves the election of independent directors of the Company,
the
Nomination shall include documents proving that each director candidate
complies
with the criteria set forth in the ROC Securities and Exchange Act and
the
Regulations Governing Appointment of Independent Directors and Compliance
Matters for Public Companies,
(vi) if
a
director candidate is corporate shareholder of the Company (which cannot
be the
Depositary or its nominee), or such corporate shareholder's representative,
additional information and documents reflecting the basic registration
information of such corporate shareholder and the document certifying the
number
of Shares in its possession,
(vii) any
further conditions under Article 192-1 of the ROC Company Law, as amended,
and
of the Company's amended Articles of Incorporation are so satisfied,
(viii) the
Nomination is submitted to the Depositary by the Nominating Holder(s) at
least
five (5) Business Days prior to the expiration of the Nomination Submission
Period,
(ix) the
Nomination is accompanied by a written certificate signed by each Nominating
Holder, addressed to the Depositary and the Company and in a form satisfactory
to the Depositary and the Company (the "First Nomination Certificate"),
certifying, inter alia, (w) that each Nominating Holder has only endorsed
the
said Nomination, (x) that the Nominating Holder(s) own(s), individually
or in
the aggregate, at least 51% of the ADSs outstanding as of the date the
Nomination is submitted by the Nominating Holder(s) to the Depositary (the
"Nomination Submission Date"), (y) if the Nomination Submission Date is
(i) on
or after the applicable ADS Record Date, that the Nominating Holder(s)
owned at
least 51% of the ADSs outstanding as of the applicable ADS Record Date,
and (ii)
prior to the applicable ADS Record Date, that the Submitting Holder(s)
will
continue to own at least 51% of the ADSs outstanding as of the applicable
ADS
Record Date and will provide the Second Nomination Certificate, as defined
below, and (z) the name(s) and address(es) of the Nominating Holder(s)
and the
number of ADSs owned by each Nominating Holder (together with certified
evidence
of each Nominating Holder's ownership of the applicable ADSs as of the
Nomination Submission Date, in the case of (y)(ii) above, and the applicable
ADS
Record Date, in the case of (y)(i) above),
A-16
(x) if
the
Nomination Submission Date is prior to the applicable ADS Record Date,
the
Nominating Holder(s) must also provide, within five (5) Business Days after
the
applicable ADS Record Date, a second written certificate signed by each
Nominating Holder addressed to the Depositary and the Company and in a
form
satisfactory to the Depositary and the Company (the "Second Nomination
Certificate"), certifying, inter alia, that the Nominating Holder(s) continued
to own at least 51% of the ADSs outstanding as of the applicable ADS Record
Date
(together with certified evidence of each Nominating Holder's ownership
of the
applicable ADSs as of such applicable ADS Record Date),
(xi) the
Nomination is accompanied by a joint and several irrevocable undertaking
of all
Nominating Holders (which undertaking may be contained in the First Nomination
Certificate or the Second Nomination Certificate) that each such Nominating
Holder shall pay all fees and expenses incurred in relation to the submission
of
the Nomination at the meeting of the Company's shareholders, and
(xii) the
Shares registered in the name of the Depositary or its nominee as representative
of the Holders and Beneficial Owners constitute one percent (1%) or more
of the
total issued and outstanding Shares of the Company as of the Candidate
Nomination Record Date. Each Beneficial Owner hereby agrees and acknowledges
that in no event shall the Depositary or its nominee be nominated by the
Nominating Holder(s) for election as a director at a meeting of the Company's
shareholders.
Upon
the
timely receipt by the Depositary of any Nomination which the Depositary
reasonably believes to be in full compliance with the immediately preceding
paragraph, the Depositary shall submit a copy of such Nomination and of
the
other materials received from the Nominating Holder(s) to the Company prior
to
the expiration of the Nomination Submission Period. Any Nomination so submitted
as to which the Depositary has not received within five (5) Business Days
after
the applicable ADS Record Date any Second Nomination Certificate required
under
the immediately preceding paragraph shall be deemed irrevocably withdrawn
at the
expiration of such five (5) Business Day period. In the event the Depositary
receives more than one (1) Nomination by a Nominating Holder, or a group
of
Nominating Holders, each of which appears to satisfy the requirements set
forth
in the immediately preceding paragraph, the Depositary is hereby authorized
and
instructed to disregard all Nominations received from such Submitting Holder(s),
except for the first Nomination received by the Depositary from such Nominating
Holder(s) and shall submit such Nomination to the Company for consideration
at a
meeting of the Company's shareholders involving the election of directors
in
accordance with the terms of the Deposit Agreement. The Depositary shall
not
have any obligation to verify the accuracy of the information contained
in any
document submitted to it by the Nominating Holder(s). Neither the Depositary
nor
its nominee shall be obligated to attend and speak at the meeting of the
Company's shareholders involving the election of directors on behalf of
the
Nominating Holder(s).
In
determining whether any Nomination meets the requirements set forth above,
the
Depositary may rely upon a statement set forth in the First Nomination
Certificate or Second Nomination Certificate stating that the Nomination
is in
full compliance with the requirements set forth in the preceding paragraph.
The
Depositary has no obligation to perform any investigation in connection
with any
Nomination.
A-17
Notwithstanding
anything contained in the Deposit Agreement or any ADR, and except that
the
Depositary shall arrange, at the request of the Company and at the Company's
expense, for the mailing to Holders of copies of materials that the Company
has
made available to the Depositary for such purpose, the Depositary shall
not be
obligated to provide to the Holders or Beneficial Owners of ADSs any notices
relating to the nomination rights, including, without limitation, notice
of the
Nomination Submission Period, or the receipt of any Nomination(s) from
Nominating Holders, or of the holdings of any ADSs by any persons, except
that
the Depositary shall, upon a Holder's request, inform such Holder of the
total
number of ADSs then issued and outstanding.
17. CHANGES
AFFECTING DEPOSITED SECURITIES.
In
circumstances where the provisions of Section 4.03 of the Deposit Agreement
do not apply, upon any change in nominal value, change in par value, split-up,
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, and upon the Depositary
having
obtained specific regulatory approval, if necessary, for the issuance of
additional ADSs from the appropriate governmental entity in the R.O.C.,
any
securities which shall be received by the Depositary or a Custodian in
exchange
for, in conversion of or in respect of Deposited Securities shall be treated
as
new Deposited Securities under the Deposit Agreement, and American Depositary
Shares shall thenceforth represent, in addition to the existing Deposited
Securities, the right to receive the new Deposited Securities so received
in
exchange or conversion, unless additional Receipts are delivered pursuant
to the
following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in
the case
of a distribution in Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts specifically describing such new Deposited
Securities.
A-18
18. LIABILITY
OF THE COMPANY AND DEPOSITARY.
Neither
the Depositary nor the Company nor any of their respective directors, employees,
agents or affiliates shall incur any liability to any Holder or Beneficial
Owner
of any Receipt, if by reason of any provision of any present or future
law,
rule, regulation, order, decree or fiat of the United States, the R.O.C.
or any
other jurisdiction, or of any other governmental or regulatory authority,
or any
securities exchange or market or automated quotation system, or by reason
of any
provision, present or future, of the Articles of Incorporation of the Company,
or by reason of any provision of any securities issued or distributed by
the
Company, or any offering or distribution thereof, or by reason of any act
of God
or war or terrorism or other circumstances beyond its control, the Depositary
or
the Company shall be prevented, delayed or forbidden from or be subject
to any
civil or criminal penalty on account of doing or performing any act or
thing
which by the terms of the Deposit Agreement it is provided shall be done
or
performed; nor shall the Depositary or the Company or any of their respective
directors, employees, agents or affiliates incur any liability to any Holder
or
Beneficial Owner of a Receipt by reason of any non-performance or delay,
caused
as aforesaid, in the performance of any act or thing which by the terms
of the
Deposit Agreement it is provided shall or may be done or performed, or
by reason
of any exercise of, or failure to exercise, any discretion provided for
in the
Deposit Agreement. Where, by the terms of a distribution pursuant to
Section 4.01, 4.02 or 4.03 of the Deposit Agreement, or an offering or
distribution pursuant to Section 4.04 of the Deposit Agreement, such
distribution or offering may not be made available to Holders of Receipts,
and
the Depositary may not dispose of such distribution or offering on behalf
of
such Holders and make the net proceeds available to such Holders, then
the
Depositary shall not make such distribution or offering, and shall allow
any
rights, if applicable, to lapse. Neither the Company nor the Depositary
assumes any obligation or shall be subject to any liability under the Deposit
Agreement to Holders or Beneficial Owners of Receipts, except that they
agree to
perform their obligations specifically set forth in the Deposit Agreement
without gross negligence or willful misconduct. The Depositary shall not
be subject to any liability with respect to the validity or worth of the
Deposited Securities. Neither the Depositary nor the Company shall be
under any obligation to appear in, prosecute or defend any action, suit,
or
other proceeding in respect of any Deposited Securities or in respect of
the
Receipts, which in its opinion may involve it in expense or liability,
unless
indemnity satisfactory to it against all expense and liability shall be
furnished as often as may be required, and the Custodian shall not be under
any
obligation whatsoever with respect to such proceedings, the responsibility
of
the Custodian being solely to the Depositary. Neither the Depositary nor
the Company shall be liable for any action or nonaction by it in reliance
upon
the advice of or information from legal counsel, accountants, any person
presenting Shares for deposit, any Holder or Beneficial Owner of a Receipt,
or
any other person believed by it in good faith to be competent to give such
advice or information. The Depositary shall not be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast (provided that any such
action
or nonaction is in good faith) or for the effect of any such vote, provided
that any
such action or nonaction is in good faith. Notwithstanding
anything to the contrary set forth in the Deposit Agreement or any ADR,
the
Depositary and its agents may fully respond to any and all demands or requests
for information maintained by or on its behalf in connection with the Deposit
Agreement, any Holder or Holders, any ADR or ADRs or otherwise related
hereto to
the extent such information is requested or required by or pursuant to
any
lawful authority, including without limitation laws, rules, regulations,
administrative or judicial process, banking, securities or other regulators.
Neither the Company nor the Depositary nor any of their respective agents
shall
be liable to Holders or Beneficial Owners for any indirect, special, punitive
or
consequential damages. Neither
the Depositary nor the Company shall be liable for any acts or omissions
made by
a successor depositary whether in connection with a previous act or omission
of
the Depositary or in connection with a matter arising wholly after the
removal
or resignation of the Depositary, provided
that in
connection with the issue out of which such potential liability arises,
the
Depositary performed its obligations without gross negligence or bad faith
while
it acted as Depositary. The Company has agreed to indemnify and save
harmless the Depositary and its agents under certain circumstances and
the
Depositary has agreed to indemnify and save harmless the Company under
certain
circumstances set forth in the Deposit Agreement. No disclaimer of liability
under the Securities Act of 1933 is intended by any provision of the Deposit
Agreement.
A-19
19. RESIGNATION
AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
CUSTODIAN.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary
and its acceptance of such appointment by the Company as provided in the
Deposit
Agreement. The Depositary may at any time be removed by the Company by 120
days prior written notice of such removal, to become effective upon the
later of
(i) the 120th
day
after delivery of the notice to the Depositary or (ii) the appointment
by the
Company of a successor depositary and its acceptance of such appointment
as
provided in the Deposit Agreement. Whenever the Depositary in its
discretion determines that it is in the best interest of the Holders of
Receipts
to do so, it may, subject to the prior written consent of the Company (which
consent shall not be unreasonably withheld or delayed), appoint a
substitute or additional custodian or custodians.
20. AMENDMENT.
The
form
of the Receipts and any provisions of the Deposit Agreement may at any
time and
from time to time be amended by agreement between the Company and the Depositary
without the consent of Holders or Beneficial Owners of Receipts in any
respect
which they may deem necessary or desirable. Any amendment which shall
impose or increase any fees or charges (other than taxes and other governmental
charges, registration fees and cable, telex or facsimile transmission costs,
delivery costs or other such expenses), or which shall otherwise prejudice
any
substantial existing right of Holders of Receipts, shall, however, not
become
effective as to outstanding Receipts until the expiration of 30 days after
notice of such amendment shall have been given to the Holders of outstanding
Receipts. Every Holder of a Receipt at the time any amendment so becomes
effective shall be deemed, by continuing to hold such Receipt, to consent
and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Holder of
any Receipt to surrender such Receipt and receive therefor the Deposited
Securities represented thereby except in order to comply with mandatory
provisions of applicable law.
A-20
21. TERMINATION
OF DEPOSIT AGREEMENT.
The
Depositary at any time at the direction of the Company, shall 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. The Depositary may likewise terminate the
Deposit Agreement by mailing notice of such termination to the Company
and the
Holders of all Receipts then outstanding if at any time 180 days, or at
such
time prior to 180 days in accordance with applicable U.S. law, regulation,
or of
any U.S. governmental or regulatory authority or stock exchange, shall
have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have
been
appointed and accepted its appointment as provided in the Deposit
Agreement.
To
the
extent non-R.O.C. persons who are Holders of ADRs are permitted to withdraw
the
Shares underlying the ADSs evidenced thereby under applicable law at the
time of
the termination of this Agreement, the following paragraph shall apply
to all
Holders who may so withdraw such Shares.
On
and
after the date of termination, the Holder of a Receipt will, upon (a) surrender
of such Receipt at the Depositary's Office, (b) payment of the fee of the
Depositary for the surrender of Receipts referred to in Section 2.05 of
the
Deposit Agreement, and (c) payment of any applicable taxes or governmental
charges, be entitled to delivery, to him or upon his order, of the number
of
Deposited Securities represented by the American Depositary Shares evidenced
by
such Receipt. If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration
of
transfers of Receipts, 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 and other property as provided in the Deposit Agreement,
and
shall continue to deliver Deposited Securities, together with any dividends
or
other distributions received with respect thereto and the net proceeds
of the
sale of any Shares, rights or other property, in exchange for Receipts
surrendered to the Depositary (after deducting, in each case, the fee of
the
Depositary for the surrender of a Receipt, any expenses for the account
of the
Holder of such Receipt in accordance with the terms and conditions of the
Deposit Agreement, and any applicable taxes or governmental
charges).
To
the
extent non-R.O.C. persons who are Holders of ADRs are not permitted to
withdraw
the Shares underlying the ADSs evidenced thereby under applicable law at
the
time of the termination of this Agreement, the following paragraph shall
apply
to all Holders who may not so withdraw such Shares.
If
any
Receipts shall remain outstanding after the date of termination, the Depositary
thereafter shall discontinue the registration of transfers of Receipts,
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, Shares
and
other property as provided in this Deposit Agreement, and shall continue
to
deliver the net proceeds of the sale of any rights, Shares or other property,
in
exchange for Receipts surrendered to the Depositary (after deducting, in
each
case, the fee of the Depositary for the surrender of a Receipt, any expenses
for
the account of the Holder of such Receipt in accordance with the terms
and
conditions of the Deposit Agreement, and any applicable taxes or governmental
charges).
A-21
At
any
time after the expiration of one year from the date of termination, the
Depositary may sell the Deposited Securities then held under the Deposit
Agreement and may thereafter hold uninvested the net proceeds of any such
sale,
together with any other cash then held by it thereunder, unsegregated and
without liability for interest, for the pro rata benefit of the Holders
of
Receipts which have not theretofore been surrendered, such Holders thereupon
becoming general creditors of the Depositary with respect to such net proceeds.
After making such sale, the Depositary shall be discharged from all
obligations under the Deposit Agreement, except to account for such net
proceeds
and other cash (after deducting, in each case, the fee of the Depositary
for the
surrender of a Receipt, any expenses for the account of the Holder of such
Receipt in accordance with the terms and conditions of the Deposit Agreement,
and any applicable taxes or governmental charges). Upon the termination of
the Deposit Agreement, the Company shall be discharged from all obligations
under the Deposit Agreement except for its obligations to the Depositary
with
respect to indemnification, charges, and expenses.
22. DISCLOSURE
OF INTERESTS.
The
Company and the Depositary may from time to time request Holders or former
Holders to provide information as to the capacity in which such Holders
hold or
held ADRs and regarding the identity of any other persons then or previously
interested in such ADRs and the nature of such interest and various other
matters as may be required to comply with applicable law or the Articles
of
Incorporation of the Company. Each such Holder agrees to provide any
information requested by the Company or the Depositary pursuant to
Section 3.04 of the Deposit Agreement and this Article (25) and any
applicable laws or regulations whether or not still a Holder at the time
of such
request.
23. OWNERSHIP
RESTRICTIONS.
Notwithstanding
any other provision of the Deposit Agreement, the Company may, subject
to any
applicable laws and regulations, restrict deposits of the Shares where
such
deposit might result in ownership of Shares exceeding the limits under
the
applicable law or the Company’s Articles of Incorporation. Currently, under the
Telecommunications Act of the R.O.C., the total direct and indirect shareholding
of the Company by non-R.O.C. persons may not exceed twenty percent (20%)
of the
total outstanding Shares, which shareholding limitation may change from
time to
time. The Company may, in its sole discretion, instruct the Depositary
to take
action with respect to the ownership interest of any Holder in excess of
the
limitation set forth in the preceding sentence, including but not limited
to
refusing to accept Shares for deposit from a holder of Shares in excess
of the
applicable limitation if a deposit of Shares would result in a violation
of such
limitations, if and to the extent such action is permitted by any applicable
law. The Depositary shall use its reasonable efforts to comply with the
written instruction of the Company as provided in this Section, only if
such
instructions are reasonable and practicable.
A-22
24. COMPLIANCE
WITH INFORMATION REQUESTS.
Notwithstanding
any other provision of the Deposit Agreement, each Holder agrees to comply
with
requests from the Company pursuant to R.O.C. law and any stock exchange
on which
the Shares 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 owns Receipts (and Shares as the case
may be)
and regarding the identity of any other person interested in such Receipts
and
the nature of such interest, and the Depositary agrees to use its reasonable
efforts to comply with written instructions, only if such instructions
are
reasonable and practicable, received from the Company requesting that the
Depositary forward any such request from the Company to the Holder and
to
forward to the Company any such responses to such requests received by
the
Depositary.
25. COMPLIANCE
WITH U.S. SECURITIES LAWS.
Notwithstanding
anything in the Deposit Agreement to the contrary, the Issuer and the Depositary
each agrees that it will not exercise any rights it has under the Deposit
Agreement to prevent the withdrawal or delivery of Deposited Securities
in a
manner which would violate the U.S. securities laws, including, but not
limited
to, Section I.A.(1) of the General Instructions to the Registration Statement
on
Form F-6, as amended from time to time, under the Securities Act of
1933.
26. TAX
GUARANTOR; SECURITIES TRADING ACCOUNT.
The
Depositary and the Company have been advised that under current R.O.C.
law, a
Holder who is a non-R.O.C. person wishing to withdraw Deposited Securities
from
the ADR facility is required to appoint an eligible agent in the R.O.C.
for
filing tax returns and making tax payments (a “Tax Guarantor”). Such Tax
Guarantor will be required to meet the qualifications set by the Ministry
of
Finance of the R.O.C. and will act as the guarantor of the withdrawing
Holder’s
tax payment obligations. In addition, subject to certain limited
exceptions, under current R.O.C. law, repatriation of profits by a non-R.O.C.
withdrawing Holder is subject to the submission of evidence by the withdrawing
Holder of the appointment of a Tax Guarantor to, and approval thereof by,
the
tax authority.
The
Depositary and the Company have also been advised that, under current R.O.C.
law, such withdrawing Holder is required to appoint a local agent in the
R.O.C.
to, among other things, open a securities trading account with a local
securities brokerage firm, remit funds and exercise shareholder’s rights.
In addition, such withdrawing Holder is also required to appoint a
custodian bank to hold the securities and cash in safekeeping, make
confirmations and settle trades and report all relevant information.
Without making such appointment and the opening of such account, the
withdrawing Holder would be unable to hold or subsequently sell the Deposited
Securities withdrawn from the ADR facility on the Taiwan Stock Exchange
or
otherwise. The laws of the R.O.C. applicable to the withdrawal of
Deposited Securities may change from time to time. Furthermore, such
withdrawing Holder is also required to be, or to obtain the relevant R.O.C.
approval as, a qualified foreign institutional investor or a general foreign
investor in order to receive Shares upon withdrawal. There can be no
assurances that current law will remain in effect or that future changes
of
R.O.C. law will not adversely affect the ability of Holders to withdraw
Deposited Securities hereunder.
A-23
27. SUBMISSION
TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.
The
Company hereby (i) irrevocably designates and appoints CT Corporation, ▇▇▇
▇▇▇
▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, in the State of New York, as the Company's authorized
agent upon which process may be served in any suit or proceeding arising
out of
or relating to the Shares or Deposited Securities, the American Depositary
Shares, the Receipts or this Agreement, (ii) consents and submits to the
jurisdiction of any state or federal court in the State of New York in
which any
such suit or proceeding may be instituted, and (iii) agrees that service
of
process upon said authorized agent shall be deemed in every respect effective
service of process upon the Company in any such suit or proceeding. The
Depositary agrees to provide notice, in accordance with Section 7.05 of
the
Deposit Agreement, to the Company of any such service of process upon the
authorized agent; provided,
however, that any action or omission with respect to such notice shall
not in
any way invalidate or other constitute a waiver of such service of process.
The Company agrees to deliver to the Depositary, upon the execution and
delivery of this Deposit Agreement, a written acceptance by such agent
of its
appointment as such agent. The Company further agrees to take any and all
action, including the filing of any and all such documents and instruments,
as
may be necessary to continue such designation and appointment in full force
and
effect for so long as any American Depositary Shares or Receipts remain
outstanding or this Agreement remains in force. If for any reason the
authorized agent shall cease to be available to act as such, the Company
agrees
to designate a new authorized agent in New York on the terms and for the
purposes of this Article 27 or the Deposit Agreement and deliver to the
Depositary written notice, in accordance with Section 7.05 of the Deposit
Agreement, of such new authorized agent, which notice shall take effect
upon the
Depositary’s receipt of such notice. In the event the Company fails to
continue such designation and appointment in full force and effect, the
Company
hereby waives personal service of process upon it and consents that any
such
service of process may be made by certified or registered mail, return
receipt
requested, directed to the Company at its address last specified for notices
hereunder, and service so made shall be deemed completed five (5) days
after the
same shall have been so mailed.
A-24
28. ARBITRATION;
SETTLEMENT OF DISPUTES.
In
the
event the Depositary is advised that a judgment of a United States court
may not
be recognized or enforced in the R.O.C., the following provisions shall
apply:
(i) Any
controversy, claim or cause of action brought by any party or parties hereto
against any other party or parties hereto arising out of or relating to
the
Deposit Agreement shall be settled by arbitration in accordance with the
Commercial Arbitration Rules of the American Arbitration Association, and
judgment upon the award rendered by the arbitrators may be entered in any
court
having jurisdiction thereof.
(ii) The
place
of the arbitration shall be the City of ▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America, and the language of the arbitration shall be
English.
(iii) The
number of arbitrators shall be three, each of whom shall be disinterested
in the
dispute or controversy, shall have no connection with any party thereto,
and
shall be an attorney experienced in international securities transactions.
Each party shall appoint one arbitrator and the two arbitrators shall
select a third arbitrator who shall serve as chairperson of the tribunal.
If a dispute, controversy or cause of action shall involve more than two
parties, the parties shall attempt to align themselves in two sides (i.e.,
claimant and respondent), each of which shall appoint one arbitrator as
if there
were only two parties to such dispute, controversy or cause of action.
If
either or both parties fail to select an arbitrator, or if such alignment
(in
the event there is more than two parties) shall not have occurred, within
sixty
(60) calendar days after the initiating party serves the arbitration demand
or
the two arbitrators fail to select a third arbitrator within sixty (60)
calendar
days of the selection of the second arbitrator, the American Arbitration
Association shall appoint the arbitrator or arbitrators in accordance with
its
rules. The parties and the American Arbitration Association may appoint
the arbitrators from among the nationals of any country, whether or not
a party
is a national of that country.
(iv) The
arbitrators shall have no authority to award damages not measured by the
prevailing party's actual damages and shall have no authority to award
any
consequential, special or punitive damages, and may not, in any event,
make any
ruling, finding or award that does not conform to the terms and conditions
of
the Deposit Agreement.
(v) In
the
event any third-party action or proceeding is instituted against the Depositary
relating to or arising from any act or failure to act by the Company, the
Company hereby submits to the personal jurisdiction of the court or
administrative agency in which such action or proceeding is
brought.
29. WAIVER
OF IMMUNITIES.
To
the
extent that the Company or any of its properties, assets or revenues may
have or
may hereafter become entitled to, or have attributed to it, any right of
immunity, on the grounds of sovereignty or otherwise, from any legal action,
suit or proceeding, from the giving of any relief in any respect thereof,
from
setoff or counterclaim, from the jurisdiction of any court, from service
of
process, from attachment upon or prior to judgment, from attachment in
aid of
execution or judgment, or from execution of judgment, or other legal process
or
proceeding for the giving of any relief or for the enforcement of any judgment,
in any jurisdiction in which proceedings may at any time be commenced,
with
respect to its obligations, liabilities or any other matter under or arising
out
of or in connection with the Shares or Deposited Securities, the American
Depositary Shares, the Receipts or the Deposit Agreement, the Company,
to the
fullest extent permitted by law, hereby irrevocably and unconditionally
waives,
and agrees not to plead or claim, any such immunity and consents to such
relief
and enforcement.
A-25
30. TEMPORARY
ADRS, TEMPORARY ADSS, EXCHANGE OF TEMPORARY ADSS FOR ADSS.
In
the
event the Company or any of its affiliates offers Shares in the form of
ADSs and
such ADSs initially represent Certificates of Payment, such ADSs (hereinafter,
“Temporary ADSs”) shall be assigned a unique CUSIP number until such time as the
Temporary ADSs no longer represent Certificates of Payment. The Company
undertakes to make Shares available in exchange for Certificates of Payment.
The Depositary shall thereupon surrender any Certificates of Payment then
eligible for exchange with the Company and the Company shall deliver Shares
to
the Depositary in exchange therefor. Upon receipt by the Depositary or the
Custodian of Shares in exchange for Certificates of Payment, the Depositary
will
instruct DTC to transfer the number of Temporary ADSs held by DTC participants
under the relevant number assigned to the non-temporary ADSs (the “Standard
ADSs”), and thenceforth such ADSs shall bear the same CUSIP and ISIN numbers
as
the Standard ADSs. Holders and Beneficial Owners of such Temporary ADSs
shall thereafter be Holders and Beneficial Owners of Standard ADSs and
shall
have all of the rights and obligations set forth under the Deposit Agreement
and
the ADRs evidencing the Standard ADSs.
A-26