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UNITED MICROELECTRONICS CORPORATION
AND
CITIBANK, N.A.,
As Depositary,
AND
THE HOLDERS AND BENEFICIAL OWNERS
OF AMERICAN DEPOSITARY SHARES EVIDENCED BY
AMERICAN DEPOSITARY RECEIPTS ISSUED UNDER THE
DEPOSIT AGREEMENT, DATED AS OF SEPTEMBER 21, 2000
Amendment No. 1
to
Deposit Agreement
-------------------------------
Dated as of March 6, 2006
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AMENDMENT NO. 1 TO DEPOSIT AGREEMENT
AMENDMENT NO. 1 TO DEPOSIT AGREEMENT, dated as of March 6, 2006 (this
"Amendment"), by and among United Microelectronics Corp., a company organized
and existing under the laws of the Republic of China (the "Company"), Citibank,
N.A., a national banking association organized under the laws of the United
States of America (the "Depositary"), and all Holders and Beneficial Owners from
time to time of American Depositary Shares evidenced by American Depositary
Receipts issued under the Deposit Agreement, dated as of September 21, 2000, as
amended from time to time.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Deposit
Agreement, dated as of September 21, 2000, as supplemented by a letter agreement
by and between the Company and the Depositary dated as of December 12, 2001, as
further supplemented by a letter agreement dated as of August 19, 2003, by and
among the Company, Teco Electric & Machinery Co. Ltd and the Depositary, and as
further supplemented by a letter agreement dated as of October 5, 2005 by and
between the Company and the Depositary, (such deposit agreement as so
supplemented, the "Deposit Agreement"), for the creation of American Depositary
Shares representing the Shares (as defined in the Deposit Agreement) so
deposited and for the execution and delivery of American Depositary Receipts
("Receipts") in respect of the American Depositary Shares ("ADSs"); and
WHEREAS, the Company Law of the Republic of China ("ROC Company Law") has
been amended to permit certain shareholders of the Company to make proposals to
be considered at the annual ordinary meeting of the Company's shareholders and
the Company desires to amend the Deposit Agreement to reflect such change and to
permit Beneficial Owners of ADSs, subject to the conditions set forth herein, to
instruct the Depositary to make a proposal for consideration at the annual
ordinary meeting of the Company's shareholders; and
WHEREAS, pursuant to Section 6.1 of the Deposit Agreement, the Company and
the Depositary deem it desirable to amend the Deposit Agreement, the Receipts
currently outstanding and the form of Receipt annexed to the Deposit Agreement
as Exhibit A for the purposes set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Company and the Depositary
hereby agree to amend the Deposit Agreement, the Receipts and the form of
Receipt attached as Exhibit A to the Deposit Agreement as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless otherwise specified in this Amendment,
all capitalized terms used, but not otherwise defined, herein shall have the
meanings given to such terms in the Deposit Agreement.
SECTION 1.02. Effective Date. The term "Effective Date" shall mean the
date set forth above and as of which this Amendment shall become effective.
ARTICLE II
AMENDMENTS TO DEPOSIT AGREEMENT
SECTION 2.01. Deposit Agreement. All references in the Deposit Agreement
to the term "Deposit Agreement" shall, as of the Effective Date, refer to the
Deposit Agreement, as amended by this Amendment.
SECTION 2.02. Principal Office. The definition of "Principal Office" in
Section 1.28 of the Deposit Agreement is, as of the Effective Date, deleted in
its entirety and in its stead the following is inserted:
"SECTION 1.28 "Principal Office", when used with respect to the
Depositary, shall mean the principal office of the Depositary at which at
any particular time its depositary receipts business shall be
administered, which, at the date of the Deposit Agreement, is located at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A."
SECTION 2.03. Submission of Proposals. The Deposit Agreement is hereby
amended, as of the Effective Date, to add the following Section 4.15 at the end
of Article IV of the Deposit Agreement:
"Section 4.15 Right to Submit Proposals at Annual Ordinary Meeting
of Shareholders.
(a) Proposals by Shareholders.
The Company has informed the Depositary that under ROC Company Law,
as in effect as of the date of the Deposit Agreement, holders of one
percent (1%) or more of the total issued and outstanding Shares (including
the treasury Shares) of the Company as of the applicable record date for
determining holders of Shares with the right to vote at an annual ordinary
meeting of the Company's shareholders (the "Shareholder Proposal Record
Date"), are entitled to submit one (1) written proposal (the "Proposal")
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each year for consideration at the annual ordinary meeting of the
Company's shareholders, provided that: (i) the Proposal is in the
traditional Chinese language and does not exceed 300 traditional Chinese
characters (including the reason(s) for the Proposal, all accompanying
supporting statements and all punctuation marks) in length, (ii) the
Proposal is submitted to the Company during the period for submission of
Proposals (the "Submission Period") announced by the Company (it being
agreed by the Company that the Company shall announce publicly each year
the Submission Period and the place for eligible shareholders to submit
the Proposal in a report on Form 6-K submitted to the Commission prior to
the commencement of the 60 days closed period prior to the annual ordinary
meeting of the Company's shareholders), (iii) only one (1) matter for
consideration at the annual ordinary meeting of the Company's shareholders
shall be allowed in each Proposal, and (iv) the proposing shareholder
shall attend, in person or by a proxy, such annual ordinary meeting of the
Company's shareholders whereat his or her or its Proposal is to be
discussed in the Chinese language and such proposing shareholder, or his
or her or its proxy, shall take part in the discussion of such Proposal in
the Chinese language. For the avoidance of doubt, shareholders shall have
no right to nominate candidates for election as directors at a meeting of
the Company's shareholders pursuant to the Articles of Incorporation of
the Company, as in effect on the date hereof. As the holder of the
Deposited Securities, the Depositary or its nominee is entitled, provided
the conditions of ROC law are satisfied, to submit only one (1) Proposal
each year in respect of all of the Shares held on deposit as of the
applicable Shareholder Proposal Record Date. Holders and Beneficial Owners
of ADSs do not under ROC law have individual rights to submit Proposals to
the Company for consideration at the annual ordinary meeting of the
Company's shareholders but may be able to submit Proposals to the Company
for consideration at the annual ordinary meeting of the Company's
shareholders if the Beneficial Owners (i) timely present their ADSs to the
Depositary for cancellation pursuant to the terms of the Deposit Agreement
and become holders of Shares in the ROC prior to the expiration of the
Submission Period and prior to the applicable Shareholder Proposal Record
Date, and (ii) otherwise satisfy the conditions of ROC law applicable to
the submission of Proposals to the Company for consideration at an annual
ordinary meeting of the Company's shareholders. Beneficial Owners of ADSs
may not receive sufficient advance notice of an annual ordinary meeting of
the Company's shareholders to enable the timely withdrawal of Shares to
make a Proposal to the Company and may not be able to re-deposit under the
Deposit Agreement the Shares so withdrawn. The Company has informed the
Depositary that a Proposal shall only be voted upon at the annual ordinary
meeting of the Company's shareholders if the Proposal is accepted by the
board of directors of the Company as eligible in accordance with Article
172-1 of the ROC Company Law and the Company's Articles of Incorporation
for consideration at an annual ordinary meeting of the Company's
shareholders. In addition, the Company has no obligation to give notice of
noncompliance and/or opportunity to cure for any Proposal which fails to
satisfy the requirements and conditions of the ROC laws.
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(b) Single Proposal by Depositary or its Nominee on behalf of
Beneficial Owners.
Holders and Beneficial Owners of ADSs do not have individual
proposal rights. The Depositary will, if so requested by Beneficial
Owner(s) as of the applicable ADS Record Date that own(s), individually or
as a group, at least 51% of the ADSs outstanding as of the applicable ADS
Record Date (such Beneficial Owner(s), the "Submitting Holder(s)"), submit
to the Company for consideration at the annual ordinary meeting of the
Company's shareholders one (1) Proposal each year, provided that: (i) the
Proposal submitted to the Depositary by the Submitting Holder(s) is in the
traditional Chinese language or in English along with traditional Chinese
translation and does not exceed 300 traditional Chinese characters
(including the reason(s) for the Proposal, all accompanying supporting
statements, and all punctuation marks) in length and in the case of
English proposal, the length and the content of the proposal shall be
determined based on the Chinese translation, (ii) the Proposal is
submitted to the Depositary by the Submitting Holder(s) at least two (2)
Business Days prior to the expiration of the Submission Period, (iii) the
Proposal is accompanied by a written certificate signed by each Submitting
Holder, addressed to the Depositary and the Company and in a form
satisfactory to the Depositary and the Company (the "First Proposal
Certificate"), certifying, inter alia, (w) that each Submitting Holder has
only certified the said Proposal, (x) that the Submitting Holder(s)
own(s), individually or in the aggregate, at least 51% of the ADSs
outstanding as of the date the Proposal is submitted by the Submitting
Holder(s) to the Depositary (the "Proposal Submission Date"), (y) if the
Proposal Submission Date is (i) on or after the applicable ADS Record
Date, that the Submitting Holder(s) owned at least 51% of the ADSs
outstanding as of the applicable ADS Record Date, and (ii) prior to the
applicable ADS Record Date, that the Submitting Holder(s) will continue to
own at least 51% of the ADSs outstanding as of the applicable ADS Record
Date and will provide the Second Proposal Certificate, as defined below,
and (z) the name(s) and address(es) of the Submitting Holder(s) and the
number of ADSs owned by each Submitting Holder (together with certified
evidence of each Submitting Holder's ownership of the applicable ADSs as
of the Proposal Submission Date, in the case of (y)(ii) above, and the
applicable ADS Record Date, in the case of (y)(i) above), (iv) if the
Proposal Submission Date is prior to the applicable ADS Record Date, the
Submitting Holder(s) must also provide, within five (5) Business Days
after the applicable ADS Record Date, a second written certificate signed
by each Submitting Holder, addressed to the Depositary and the Company and
in a form satisfactory to the Depositary and the Company (the "Second
Proposal Certificate"), certifying, inter alia, that the Submitting
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Holder(s) continued to own at least 51% of the ADSs outstanding as of the
applicable ADS Record Date (together with certified evidence of each
Submitting Holder's ownership of the applicable ADSs as of such applicable
ADS Record Date), (v) the Proposal is accompanied by a joint and several
irrevocable undertaking of all Submitting Holders (which undertaking may
be contained in the First Proposal Certificate or the Second Proposal
Certificate) that each such Submitting Holder shall pay all fees and
expenses incurred in relation to the submission of the Proposal for voting
at the annual ordinary meeting of the Company's shareholders (including,
but not limited to, the costs and expenses of the Submitting Holder(s), or
his, her, its or their representative, to attend the annual ordinary
meeting of the Company's shareholders), (vi) the Shares registered in the
name of the Depositary or its nominee as representative of the Holders and
Beneficial Owners constitute one percent (1%) or more of the total issued
and outstanding Shares (including the treasury Shares) of the Company as
of the Shareholder Proposal Record Date, (vii) such Proposal contains only
one (1) matter for consideration at the annual ordinary meeting of the
Company's shareholders, and (viii) the Submitting Holder(s), or his, her,
its or their representative, attend(s) the annual ordinary meeting of the
Company's shareholders and take(s) part in the discussions of the Proposal
in the Chinese language, provided further that only one (1) individual may
attend, and take part in the discussion of the Proposal at such annual
ordinary meeting on behalf of all Submitting Holders. Each Beneficial
Owner hereby agrees and acknowledges that (i) if the Submitting Holder(s),
or his, her, its or their representative, does not attend the annual
ordinary meeting of the Company's shareholders, the chairman of such
meeting may ask the attending shareholders to discuss, the Proposal, and
(ii) in no event shall the Submitting Holder(s), or his, her, its or their
representative's, presence at an annual ordinary meeting of the Company's
shareholders entitle such Submitting Holder(s), or his, her, its or their
representative, to vote the Shares represented by such Submitting Holder's
ADSs (or any other ADSs) or to vote the Shares represented by all the
outstanding ADSs at such annual ordinary meeting of the Company's
shareholders.
Upon the timely receipt by the Depositary of any Proposal which the
Depositary reasonably believes to be in full compliance with the
immediately preceding paragraph, the Depositary shall submit a copy of
such Proposal and of the other materials received from the Submitting
Holder(s) to the Company during the Submission Period. Any Proposal so
submitted as to which the Depositary has not received within five (5)
Business Days after the applicable ADS Record Date any Second Proposal
Certificate required under the immediately preceding paragraph shall be
deemed irrevocably withdrawn at the expiration of such five (5) Business
Day period. In the event the Depositary receives more than one (1)
Proposal by a Submitting Holder, or a group of Submitting Holders, each of
which appears to satisfy the requirements set forth in the immediately
preceding paragraph, the Depositary is hereby authorized and instructed to
disregard all Proposals, except for the first Proposal, received by the
Depositary from such Submitting Holder(s) and shall submit only the first
of such Proposals to the Company for consideration at the annual ordinary
meeting of the Company's shareholders in accordance with the terms hereof.
The Depositary shall not have any obligation to verify the accuracy of the
5
information contained in any document submitted to it by the Submitting
Holder(s). Neither the Depositary nor its nominee shall be obligated to
attend and speak at the annual ordinary meeting of the Company's
shareholders on behalf of the Submitting Holder(s). The Proposal submitted
by the Depositary is still subject to review by the board of directors of
the Company and there is no assurance that the Proposal will be accepted
by the board of directors and will be included in the agenda of the
ordinary shareholders' meeting. In addition, if the Company determines
that, at the discretion of the Company, the Proposal submitted by the
Depositary does not qualify, the Company has no obligation to notify the
Depositary or to allow the Depositary to modify such Proposal.
Notwithstanding anything contained in the Deposit Agreement or any
ADR and except that the Depositary shall arrange, at the request of the
Company and at the Company's expense, for the mailing to Holders of copies
of materials that the Company has made available to the Depositary for
such purpose, the Depositary shall not be obligated to provide to the
Holders or Beneficial Owners of ADSs any notices relating to the proposal
rights, including, without limitation, notice of the Submission Period, or
the receipt of any Proposal(s) from Submitting Holders, or of the holdings
of any ADSs by any persons."
ARTICLE III
AMENDMENTS TO THE RECEIPTS
SECTION 3.01. Amendments to Receipts.
(a) The last sentence of the introductory paragraph of the form of
Receipt attached as Exhibit A to the Deposit Agreement and of each of the
Receipts issued and outstanding under the Deposit Agreement as of the Effective
Date is hereby amended as of the Effective Date by deleting such sentence in its
entirety and inserting the following in its stead: "The Depositary's Principal
Office is located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, U.S.A."
(b) The address of the Principal Office of the Depositary identified
on the bottom of the front page of the Receipt attached as Exhibit A to the
Deposit Agreement and of each of the Receipts issued and outstanding under the
Deposit Agreement as of the Effective Date is hereby amended as of the Effective
Date by identifying such address as "388 Greenwich Street, New York, New York
10013, U.S.A."
(c) The first sentence of paragraph (1) of the Form of Receipt
attached as Exhibit A to the Deposit Agreement and of each of the Receipts is
issued and outstanding under the terms of the Deposit Agreement as of the
Effective Date is hereby amended as of the Effective Date by deleting such
sentence in its entirety and inserting the following in its stead:
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"This American Depositary Receipt is one of an issue of American
Depositary Receipts ("Receipts"), all issued and to be issued upon the
terms and conditions set forth in the Deposit Agreement, dated as of
September 21, 2000, as supplemented by a letter agreement by and between
the Company and the Depositary dated as of December 12, 2001, as further
supplemented by a letter agreement dated as of August 19, 2003, by and
among the Company, Teco Electric & Machinery Co. Ltd and the Depositary,
and as further supplemented by a letter agreement dated as of October 5,
2005 by and between the Company and the Depositary, and as further amended
by Amendment No. 1 to Deposit Agreement, dated as of March 6, 2006 (such
deposit agreement as so supplemented and amended and further amended from
time to time, the "Deposit Agreement"), by and among the Company, the
Depositary and all Holders and Beneficial Owners from time to time of
American Depositary Shares ("ADSs") evidenced by Receipts issued
thereunder, each of whom by accepting an ADS (or an interest therein)
agrees to become a party thereto and becomes bound by all the terms and
provisions thereof."
SECTION 3.02. Addition to Receipts.
Each of the Receipts issued and outstanding as of the Effective Date
and the form of Receipt attached as Exhibit A to the Deposit Agreement is hereby
amended as of the Effective Date to add the following Paragraph (26) at the end
of the Receipt:
"(26) Right to Submit Proposals at Annual Ordinary Meeting of
Shareholders.
(a) Proposals by Shareholders.
The Company has informed the Depositary that under ROC Company Law,
as in effect as of the date of the Deposit Agreement, holders of one
percent (1%) or more of the total issued and outstanding Shares (including
the treasury Shares) of the Company as of the applicable record date for
determining holders of Shares with the right to vote at an annual ordinary
meeting of the Company's shareholders (the "Shareholder Proposal Record
Date"), are entitled to submit one (1) written proposal (the "Proposal")
each year for consideration at the annual ordinary meeting of the
Company's shareholders, provided that: (i) the Proposal is in the
traditional Chinese language and does not exceed 300 Chinese characters
(including the reason(s) for the Proposal, all accompanying supporting
statements and all punctuation marks) in length, (ii) the Proposal is
submitted to the Company during the period for submission of Proposals
(the "Submission Period") announced by the Company (it being agreed by the
Company that the Company shall announce publicly each year the Submission
7
Period and the place for eligible shareholders to submit the Proposal in a
report on Form 6-K submitted to the Commission prior to the commencement
of the 60 days closed period prior to the annual ordinary meeting of the
Company's shareholders), (iii) only one (1) matter for consideration at
the annual ordinary meeting of the Company's shareholders shall be allowed
in each Proposal, and (iv) the proposing shareholder shall attend, in
person or by a proxy, such annual ordinary meeting of the Company's
shareholders whereat his or her or its Proposal is to be discussed in the
Chinese language and such proposing shareholder, or his or her or its
proxy, shall take part in the discussion of such Proposal in the Chinese
language. For the avoidance of doubt, shareholders shall have no right to
nominate candidates for election as directors at a meeting of the
Company's shareholders pursuant to the Articles of Incorporation of the
Company, as in effect on the date hereof. As the holder of the Deposited
Securities, the Depositary or its nominee is entitled, provided the
conditions of ROC law are satisfied, to submit only one (1) Proposal each
year in respect of all of the Shares held on deposit as of the applicable
Shareholder Proposal Record Date. Holders and Beneficial Owners of ADSs do
not under ROC law have individual rights to submit Proposals to the
Company for consideration at the annual ordinary meeting of the Company's
shareholders but may be able to submit Proposals to the Company for
consideration at the annual ordinary meeting of the Company's shareholders
if the Beneficial Owners (i) timely present their ADSs to the Depositary
for cancellation pursuant to the terms of the Deposit Agreement and become
holders of Shares in the ROC prior to the expiration of the Submission
Period and prior to the applicable Shareholder Proposal Record Date, and
(ii) otherwise satisfy the conditions of ROC law applicable to the
submission of Proposals to the Company for consideration at an annual
ordinary meeting of the Company's shareholders. Beneficial Owners of ADSs
may not receive sufficient advance notice of an annual ordinary meeting of
the Company's shareholders to enable the timely withdrawal of Shares to
make a Proposal to the Company and may not be able to re-deposit under the
Deposit Agreement the Shares so withdrawn. The Company has informed the
Depositary that a Proposal shall only be voted upon at the annual ordinary
meeting of the Company's shareholders if the Proposal is accepted by the
board of directors of the Company as eligible in accordance with Article
172-1 of the ROC Company Law and the Company's Articles of Incorporation
for consideration at an annual ordinary meeting of the Company's
shareholders. In addition, the Company has no obligation to give notice of
noncompliance and/or opportunity to cure for any Proposal which fails to
satisfy the requirements and conditions of the ROC laws.
(b) Single Proposal by Depositary or its Nominee on behalf of
Beneficial Owners.
Holders and Beneficial Owners of ADSs do not have individual
proposal rights. The Depositary will, if so requested by (a) Beneficial
Owner(s) as of the applicable ADS Record Date that own(s), individually or
as a group, at least 51% of the ADSs outstanding as of the applicable ADS
Record Date (such Beneficial Owner(s), the "Submitting Holder(s)"), submit
to the Company for consideration at the annual ordinary meeting of the
Company's shareholders one (1) Proposal each year, provided that: (i) the
Proposal submitted to the Depositary by the Submitting Holder(s) is in the
traditional Chinese language or in English language along with traditional
Chinese translation and does not exceed 300 traditional Chinese characters
(including the reason(s) for the Proposal, all accompanying supporting
statements, and all punctuation marks) in length and in the case of
8
English proposal, the length and the content of the proposal shall be
determined based on the Chinese translation, (ii) the Proposal is
submitted to the Depositary by the Submitting Holder(s) at least two (2)
Business Days prior to the expiration of the Submission Period, (iii) the
Proposal is accompanied by a written certificate signed by each Submitting
Holder, addressed to the Depositary and the Company and in a form
satisfactory to the Depositary and the Company (the "First Proposal
Certificate"), certifying, inter alia, (w) that each Submitting Holder has
only certified the said Proposal, (x) that the Submitting Holder(s)
own(s), individually or in the aggregate, at least 51% of the ADSs
outstanding as of the date the Proposal is submitted by the Submitting
Holder(s) to the Depositary (the "Proposal Submission Date"), (y) if the
Proposal Submission Date is (i) on or after the applicable ADS Record
Date, that the Submitting Holder(s) owned at least 51% of the ADSs
outstanding as of the applicable ADS Record Date, and (ii) prior to the
applicable ADS Record Date, that the Submitting Holder(s) will continue to
own at least 51% of the ADSs outstanding as of the applicable ADS Record
Date and will provide the Second Proposal Certificate, as defined below,
and (z) the name(s) and address(es) of the Submitting Holder(s) and the
number of ADSs owned by each Submitting Holder (together with certified
evidence of each Submitting Holder's ownership of the applicable ADSs as
of the Proposal Submission Date, in the case of (y)(ii) above, and the
applicable ADS Record Date, in the case of (y)(i) above)), (iv) if the
Proposal Submission Date is prior to the applicable ADS Record Date, the
Submitting Holder(s) must also provide, within five (5) Business Days
after the applicable ADS Record Date, a second written certificate signed
by each Submitting Holder, addressed to the Depositary and the Company and
in a form satisfactory to the Depositary and the Company (the "Second
Proposal Certificate"), certifying, inter alia, that the Submitting
Holder(s) continued to own at least 51% of the ADSs outstanding as of the
applicable ADS Record Date (together with certified evidence of each
Submitting Holder's ownership of the applicable ADSs as of such applicable
ADS Record Date), (v) the Proposal is accompanied by a joint and several
irrevocable undertaking of all Submitting Holders (which undertaking may
be contained in the First Proposal Certificate or the Second Proposal
Certificate) that each such Submitting Holder shall pay all fees and
expenses incurred in relation to the submission of the Proposal for voting
at the annual ordinary meeting of the Company's shareholders (including,
but not limited to, the costs and expenses of the Submitting Holder(s), or
his, her, its or their representative, to attend the annual ordinary
meeting of the Company's shareholders), (vi) the Shares registered in the
name of the Depositary or its nominee as representative of the Holders and
9
Beneficial Owners constitute one percent (1%) or more of the total issued
and outstanding Shares (including the treasury Shares) of the Company as
of the Shareholder Proposal Record Date, (vii) such Proposal contains only
one (1) matter for consideration at the annual ordinary meeting of the
Company's shareholders, and (viii) the Submitting Holder(s), or his, her,
its or their representative, attend(s) the annual ordinary meeting of the
Company's shareholders and take(s) part in the discussions of the Proposal
in the Chinese language, provided further that only one (1) individual may
attend, and take part in the discussion of the Proposal at such annual
ordinary meeting on behalf of all Submitting Holders. Each Beneficial
Owner hereby agrees and acknowledges that (i) if the Submitting Holder(s),
or his, her, its or their representative, does not attend the annual
ordinary meeting of the Company's shareholders, the chairman of such
meeting may ask the attending shareholders to discuss, or not discuss, the
Proposal, and (ii) in no event shall a Submitting Holder's, or his, her,
its or their representative's, presence at an annual ordinary meeting of
the Company's shareholders entitle such Submitting Holder(s), or his, her,
its or their representative, to vote the Shares represented by such
Submitting Holder's ADSs (or any other ADSs) or to vote the Shares
represented by all the outstanding ADSs at such annual ordinary meeting of
the Company's shareholders.
Upon the timely receipt by the Depositary of any Proposal which the
Depositary reasonably believes to be in full compliance with the
immediately preceding paragraph, the Depositary shall submit a copy of
such Proposal and of the other materials received from the Submitting
Holder(s) to the Company during the Submission Period. Any Proposal so
submitted as to which the Depositary has not received within five (5)
Business Days after the applicable ADS Record Date any Second Proposal
Certificate required under the immediately preceding paragraph shall be
deemed irrevocably withdrawn at the expiration of such five (5) Business
Day period. In the event the Depositary receives more than one (1)
Proposal by a Submitting Holder, or a group of Submitting Holders, each of
which appears to satisfy the requirements set forth in the immediately
preceding paragraph, the Depositary is hereby authorized and instructed to
disregard all Proposals, except for the first Proposal, received by the
Depositary from such Submitting Holder(s) and shall submit only the first
of such Proposals to the Company for consideration at the annual ordinary
meeting of the Company's shareholders in accordance with the terms of the
Deposit Agreement. The Depositary shall not have any obligation to verify
the accuracy of the information contained in any document submitted to it
by the Submitting Holder(s). Neither the Depositary nor its nominee shall
be obligated to attend and speak at the annual ordinary meeting of the
Company's shareholders on behalf of the Submitting Holder(s). The Proposal
submitted by the Depositary is still subject to review by the board of
directors of the Company and there is no assurance that the Proposal will
be accepted by the board of directors and will be included in the agenda
of the ordinary shareholders' meeting. In addition, if the Company
determines that, at the discretion of the Company, the Proposal submitted
by the Depositary does not qualify, the Company has no obligation to
notify the Depositary or to allow the Depositary to modify such Proposal.
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
10
of materials that the Company has made available to the Depositary for
such purpose, the Depositary shall not be obligated to provide to the
Holders or Beneficial Owners of ADSs any notices relating to the proposal
rights, including, without limitation, notice of the Submission Period, or
the receipt of any Proposal(s) from Submitting Holders, or of the holdings
of any ADSs by any persons, except that the Depositary shall, upon a
Holder's request, inform such Holder of the total number of ADSs then
issued and outstanding."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. The Company represents and
warrants to, and agrees with, the Depositary and the Holders and Beneficial
Owners, that:
(a) This Amendment, when executed and delivered by the Company, and
the Deposit Agreement and all other documentation executed and delivered by the
Company in connection therewith, will be and have been, respectively, duly and
validly authorized, executed and delivered by the Company, and constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and
(b) In order to ensure the legality, validity, enforceability or
admissibility into evidence of this Amendment or the Deposit Agreement as
amended hereby, and other document furnished hereunder or thereunder in the
Republic of China, neither of such agreements need to be filed or recorded with
any court or other authority in the Republic of China, except for filing this
Amendment with the Financial Supervisory Commission, nor does any stamp or
similar tax need be paid in the Republic of China on or in respect of such
agreements; and
(c) None of the terms of this Amendment violate or conflict with,
nor does the execution and delivery of this Amendment, the filing of the related
Post-Effective Amendment No. 1 to the Registation Statement on Form F-6 or the
consummation of the transactions contemplated therein violate or conflict with
any agreement to which the Company is a party or by which the Company is bound;
and
11
(d) All of the information provided to the Depositary by the Company
in connection with this Amendment is true, accurate and correct in all material
aspects.
ARTICLE V
MISCELLANEOUS
SECTION 5.01. New Receipts. From and after the Effective Date, the
Depositary shall arrange to have new Receipts printed or amended that reflect
the changes to the form of Receipt effected by this Amendment. All Receipts
issued hereunder after the Effective Date, once such new Receipts are available,
whether upon the deposit of Shares or other Deposited Securities or upon the
transfer, combination or split-up of existing Receipts, shall be substantially
in the form of the specimen Receipt attached as Exhibit A hereto. However,
Receipts issued prior or subsequent to the date hereof, which do not reflect the
changes to the form of Receipt effected hereby, do not need to be called in for
exchange and may remain outstanding until such time as the Holders thereof
choose to surrender them for any reason under the Deposit Agreement. The
Depositary is authorized and directed to take any and all actions deemed
necessary to effect the foregoing.
SECTION 5.02. Notice of Amendment to Holders . The Depositary is hereby
directed to send notices informing the Holders (i) of the terms of this
Amendment, (ii) of the Effective Date of this Amendment, and (iii) that the
Holders shall be given the opportunity, but that it is unnecessary, to
substitute their Receipts with new Receipts reflecting the changes effected by
this Amendment, as provided in Section 5.01 hereof.
SECTION 5.03. Indemnification. The Company hereby agrees that, to the
extent the Depositary (or any of its directors, employees and officers) incur
any liability as a result of compliance with the terms of this Amendment and of
consummation of the transactions contemplated herein, the Depositary (and all of
its directors, employees and officers) shall be indemnified and held harmless by
the Company in the manner provided for in Section 5.8 of the Deposit Agreement.
12
IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
UNITED MICROELECTRONICS
CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇
Title: CFO
CITIBANK, N.A., as Depositary
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
13
EXHIBIT A
FORM OF RECEIPT
Number CUSIP NUMBER: 910873 20 7
American Depositary Shares (each
American Depositary Share
representing five Fully Paid common
shares each par value NT$10 per share)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
Representing
DEPOSITED FULLY PAID COMMON SHARES
of
UNITED MICROELECTRONICS CORPORATION
(Incorporated under the laws of the Republic of China (the "ROC"))
CITIBANK, N.A., a national banking association organized and
existing under the laws of the United States of America, as depositary (the
"Depositary"), hereby certifies that CEDE & CO., as nominee of THE DEPOSITORY
TRUST COMPANY (hereinafter ("DTC") is the record owner of
_______________________ American Depositary Shares (hereinafter each an "ADS"),
representing deposited common shares, each of par value of NT$10, including
evidence of rights to receive such common shares (the "Shares") of United
Microelectronics Corporation, a corporation incorporated under the laws of the
ROC (the "Company"). As of the date of the Deposit Agreement (as hereinafter
defined), each ADS represents five Shares deposited under the Deposit Agreement
with the Custodian, which at the date of execution of the Deposit Agreement is
Citibank, N.A., Taipei Branch, (the "Custodian"). The ratio of American
Depositary Shares to Shares is subject to amendment as provided in Article IV of
the Deposit Agreement. The Depositary's Principal Office is located at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
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(1) The Deposit Agreement. This American Depositary Receipt is one
of an issue of American Depositary Receipts ("Receipts"), all issued and to be
issued upon the terms and conditions set forth in the Deposit Agreement, dated
as of September 21, 2000, as supplemented by a letter agreement by and between
the Company and the Depositary dated as of December 12, 2001, as further
supplemented by a letter agreement dated as of August 19, 2003, by and among the
Company, Teco Electric & Machinery Co. Ltd and the Depositary, and as further
supplemented by a letter agreement dated as of October 5, 2005 by and between
the Company and the Depositary, and as further amended by Amendment No. 1 to
Deposit Agreement, dated as of _________________, 2006 (such deposit agreement
as so supplemented and amended and further amended from time to time, the
"Deposit Agreement"), by and among the Company, the Depositary and all Holders
and Beneficial Owners from time to time of American Depositary Shares ("ADSs")
evidenced by Receipts issued thereunder, each of whom by accepting an ADS (or an
interest therein) agrees to become a party thereto and becomes bound by all the
terms and provisions thereof.
The statements made on the face and reverse of this Receipt are
summaries of certain provisions of the Deposit Agreement and the Articles of
Incorporation of the Company (as in effect on the date of the signing of the
Deposit Agreement) and are qualified by and subject to the detailed provisions
of the Deposit Agreement and the Articles of Incorporation, to which reference
is hereby made. All capitalized terms used herein which are not otherwise
defined herein shall have the meanings ascribed thereto in the Deposit
Agreement. The Depositary makes no representation or warranty as to the validity
or worth of the Deposited Securities. The Depositary has made arrangements for
the acceptance of the ADSs into DTC. Each Beneficial Owner of ADSs held through
DTC must rely on the procedures of DTC and the DTC Participants to exercise and
be entitled to any rights attributable to such ADSs.
(2) Surrender of Receipts and Withdrawal and Sale of Deposited
Securities.
(a) ROC Requirements. The Depositary and the Company have been
advised that under current ROC law, a Holder who is a non-ROC person wishing to
withdraw Deposited Securities from the ADR facility is required to appoint an
eligible agent in the ROC 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 ROC and will act as the guarantor of the
withdrawing Holder's tax payment obligations. In addition, subject to certain
limited exceptions, under current ROC law, repatriation of profits by a non-ROC
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withdrawing Holder is subject to the submission of evidence of the appointment
of a Tax Guarantor to, and approval thereof by, the tax authority. In addition,
under current ROC law, such withdrawing Holder is required to appoint a local
agent in the ROC to, among other things, open a securities trading account with
a local securities brokerage firm, remit funds and exercise a 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 Facilities on the TSE or otherwise. The laws of the ROC applicable
to the withdrawal of Deposited Securities may change from time to time. There
can be no assurances that current law will remain in effect or that future
changes of ROC law will not adversely affect the ability of Holders to withdraw
Deposited Securities hereunder.
(b) Sale of Deposited Securities. Upon surrender of Receipts at the
Principal Office and upon payment of any fees, reasonable expenses, taxes or
other governmental charges as provided hereunder, subject to the terms of the
Deposit Agreement and the Company's Articles of Incorporation, and the transfer
restrictions applicable to the Deposited Securities, if any, Holders may request
that the Deposited Securities represented by such Holders' Receipts be sold on
such Holder's behalf. Any Holder requesting a sale of Deposited Securities may
be required by the Depositary to deliver, or cause to be delivered, to the
Depositary a written order requesting the Depositary to sell, or cause to be
sold, such Deposited Securities. Any such sale of Deposited Securities will be
conducted in accordance with applicable ROC law through a securities company in
the ROC on the TSE or in such other manner as is or may be permitted under
applicable ROC law. The Depositary and the Company have been advised that under
current ROC law, the Shares deposited in connection with the Offering may not be
sold for a period of three months from the closing of the Offering. Any such
sale of Deposited Securities will be at the expense and risk of the Holder
requesting such sale. Any Holder requesting the Depositary to sell the Deposited
Securities represented by such Holder's ADSs may be required to enter into a
separate agreement to cover the terms of the sale of such Deposited Securities.
Upon receipt of any proceeds from any such sale, the Depositary
shall, subject to any restrictions imposed by ROC law and regulations, and as
provided in the Deposit Agreement, convert or cause to be converted any such
proceeds into U.S. dollars and distribute any such proceeds to the Holders
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entitled thereto after deduction or payment of any fees, reasonable expenses,
taxes or governmental charges (including, without limitation, any ROC and U.S.
taxes) incurred in connection with such sale, as provided under the Deposit
Agreement. Any such sale may be subject to ROC taxation on capital gains, if
any, and will be subject to a securities transaction tax in the ROC. The ROC
does not, as of the date hereof, impose tax on capital gains arising from ROC
securities transactions, but there can be no assurance that a capital gains tax
on ROC securities transactions will not be imposed in the future or as to the
manner in which any ROC capital gains tax in respect of a sale of Deposited
Securities would be imposed or calculated.
(c) Withdrawal of Deposited Securities. The Holder of this Receipt
(and of the ADSs evidenced hereby) shall be entitled to Delivery (at the
Custodian's designated office) of the Deposited Securities at the time
represented by the ADS(s) evidenced hereby upon satisfaction of each of the
following conditions: (i) the Holder (or a duly authorized attorney of the
Holder) has duly Delivered to the Depositary at its Principal Office the ADSs
evidenced hereby (and, if applicable, this Receipt) for the purpose of
withdrawal of the Deposited Securities represented thereby, (ii) if so required
by the Depositary, this Receipt has been properly endorsed in blank or is
accompanied by proper instruments of transfer in blank (including signature
guarantees in accordance with standard securities industry practice), (iii) if
so required by the Depositary, the Holder of the ADSs has executed and delivered
to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be Delivered to or upon the written
order of the person(s) designated in such order, (iv) all applicable fees and
charges of, and reasonable expenses incurred by, the Depositary and all
applicable taxes and governmental charges (as are set forth in Section 5.9 and
Exhibit B to the Deposit Agreement) have been paid, and (v) the Holder of the
ADSs has delivered to the Depositary any and all certifications necessary to
allow the Company to comply with applicable ROC law reporting requirements
(including the Form of Certification Upon Withdrawal as Exhibit C to the Deposit
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Agreement), duly completed by or on behalf of the Beneficial Owner(s) of the
ADSs surrendered for withdrawal (unless the Depositary is otherwise instructed
by the Company), subject, however, in each case, to the terms and conditions of
this Receipt, of the Deposit Agreement, of the Company's Articles of
Incorporation and of any applicable laws and regulations and the rules of the
Taiwan Securities Central Depository Co. Ltd., and to any provisions of or
governing the Deposited Securities, in each case as in effect at the time
thereof. The Depositary and the Company have been advised that under current ROC
law, ADSs representing newly issued Shares deposited in connection with the
Offering may not be surrendered for a period of three months from the closing of
the Offering; consequently, the Company and the Depositary have elected to
prohibit the surrender of ADSs and the withdrawal of any Shares deposited in
connection with the Offering until the expiration of such three month period.
Upon satisfaction of each of the conditions specified above, the
Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the
Receipt evidencing the ADSs so Delivered), (ii) shall direct the Registrar to
record the cancellation of the ADSs so Delivered on the books maintained for
such purpose, and (iii) shall direct the Custodian to Deliver (without
unreasonable delay) at the Custodian's designated office the Deposited
Securities represented by the ADSs so cancelled together with any certificate or
other document of or relating to title for the Deposited Securities, or evidence
of the electronic transfer thereof (if available), as the case may be, to or
upon the written order of the person(s) designated in the order delivered to the
Depositary for such purpose, subject however, in each case, to the terms and
conditions of the Deposit Agreement, of this Receipt, of the Articles of
Incorporation of the Company, of applicable laws and regulations and of the
rules of the Taiwan Securities Central Depository Co. Ltd., and to the terms and
conditions of or governing the Deposited Securities, in each case as in effect
at the time thereof.
The Depositary shall not accept for surrender ADSs representing less
than a whole number of Eligible Securities. In the case of the Delivery of ADSs
representing a number other than a whole number of Eligible Securities, the
Depositary shall cause ownership of the appropriate whole number of Eligible
Securities to be Delivered in accordance with the terms hereof, and shall, at
the discretion of the Depositary, either (i) return to the person surrendering
such ADSs the number of ADSs representing any remaining fractional Eligible
Securities, or (ii) sell or cause to be sold the fractional Eligible Securities
represented by the ADS(s) so surrendered and remit the proceeds of such sale
(net of (a) applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the person surrendering the ADSs.
A-5
Notwithstanding anything else contained in this Receipt or the
Deposit Agreement, the Depositary may make delivery at the Principal Office of
the Depositary of (i) any cash dividends or cash distributions, or (ii) any
proceeds from the sale of any distributions of securities or rights, which are
at the time held by the Depositary in respect of the Deposited Securities
represented by the ADSs evidenced by this Receipt. At the request, risk and
expense of any Holder surrendering ADSs represented by this Receipt, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held by the Custodian in respect of the Deposited Securities represented by such
ADSs to the Depositary for delivery at the Principal Office of the Depositary.
Such direction shall be given by letter or, at the request, risk and expense of
such Holder, by air courier, cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of Receipts. The Registrar
shall register the transfer of this Receipt (and of the ADSs represented
thereby) on the books maintained for such purpose and the Depositary shall
cancel this Receipt and execute new Receipts evidencing the same aggregate
number and type of ADSs as those evidenced by this Receipt when cancelled, shall
cause the Registrar to countersign such new Receipts, and shall Deliver such new
Receipts to or upon the order of the person entitled thereto, if each of the
following conditions has been satisfied: (i) this Receipt has been duly
Delivered by the Holder (or by a duly authorized attorney of the Holder) to the
Depositary at its Principal Office for the purpose of effecting a transfer
thereof (ii) this Receipt has been properly endorsed or is accompanied by proper
instruments of transfer (including signature guarantees in accordance with
standard securities industry practice), (iii) this Receipt has been duly stamped
(if required by the laws of the State of New York or of the United States), and
(iv) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and governmental charges (as are set forth
in Section 5.9 and Exhibit B to the Deposit Agreement) have been paid subject,
however, in each case, to the terms and conditions of this Receipt, of the
Deposit Agreement and of applicable law, in each case as in effect at the time
thereof.
The Registrar shall register the split-up or combination of this
Receipt (and of the ADSs represented hereby) on the books maintained for such
purpose and the Depositary shall cancel this Receipt and execute new Receipts
for the number of ADSs requested, but in the aggregate not exceeding the number
of the same type of ADSs evidenced by this Receipt (when cancelled), shall cause
the Registrar to countersign such new Receipts, and shall Deliver such new
Receipts to or upon the order of the Holder thereof, if each of the following
A-6
conditions has been satisfied: (i) this Receipt has been duly Delivered by the
Holder (or by a duly authorized attorney of the Holder) to the Depositary at its
Principal Office for the purpose of effecting a split-up or combination hereof,
and (ii) all applicable fees and charges of, and expenses incurred by, the
Depositary and all applicable taxes and government charges (as are set forth in
Section 5.9 and Exhibit B to the Deposit Agreement) have been paid, subject,
however, in each case, to the terms and conditions of this Receipt, of the
Deposit Agreement and of applicable law, in each case, as in effect at the time
thereof.
(4) Pre-Conditions to Registration, Transfer, Etc. As a condition
precedent to the execution and delivery, registration of transfer, split-up,
combination or surrender of any Receipt the delivery of any distribution
thereon, or the withdrawal of any Deposited Securities, the Depositary or the
Custodian may require (i) payment from the depositor of Eligible Securities or
presenter of ADSs or of a Receipt of a sum sufficient to reimburse it for any
tax or other governmental charges and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with respect to
Eligible Securities being deposited or withdrawn) and payment of any applicable
fees and charges of the Depositary as provided in the Deposit Agreement, (ii)
the production of proof satisfactory to it as to the identity and genuineness of
any signature or any other matters contemplated by Section 3.1 of the Deposit
Agreement and (iii) compliance with (A) any laws or governmental regulations
relating to the execution and delivery of Receipts and ADSs or to the withdrawal
of Deposited Securities and (B) such reasonable regulations as the Depositary
and the Company establish consistent with the provisions of the Deposit
Agreement and applicable law.
The issuance of ADSs against deposits of Eligible Securities
generally or against deposits of particular Eligible Securities may be
suspended, or the deposit of particular Eligible Securities may be refused, or
the registration of transfer of Receipts in particular instances may be refused,
or the registration of transfer of Receipts generally may be suspended, during
any period when the transfer books of the Company, the Depositary, a Registrar
or the Eligible Securities Registrar are closed or if any such action is deemed
necessary or advisable by the Depositary or the Company, in good faith, at any
time or from time to time because of any requirement of law, any government or
governmental body or commission or any securities exchange upon which the
Receipts or Eligible Securities are listed, or under any provision of the
A-7
Deposit Agreement or provisions of, or governing, the Deposited Securities, or
any meeting of shareholders of the Company or for any other reason, subject, in
all cases, to Article (24) hereof. Notwithstanding any provision of the Deposit
Agreement or this Receipt to the contrary, Holders are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Eligible Securities in connection with voting
at a shareholders meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S., ROC or foreign laws
or governmental regulations relating to the Receipts or to the withdrawal of the
Deposited Securities, and (iv) other circumstances specifically contemplated by
Section I.A.(l) of the General Instructions to Form F-6 (as such General
Instructions may be amended from time to time).
(5) Compliance With Information Requests. Notwithstanding any other
provision of the Deposit Agreement or this Receipt, each Holder and Beneficial
Owner of the ADSs represented hereby agrees to comply with requests from the
Company pursuant to ROC law, the rules and requirements of the Taiwan Stock
Exchange, and of any stock exchange on which the Eligible Securities or ADSs
are, or will be, registered, traded or listed or the Articles of Incorporation
of the Company, which are made to provide information, inter alia, as to the
capacity in which such Holder or Beneficial Owner owns ADSs (and Eligible
Securities or Deposited Securities, as the case may be) and regarding the
identity of any other person(s) interested in such ADSs and the nature of such
interest and various other matters, whether or not they are Holders and/or
Beneficial Owners at the time of such request. The Depositary agrees to use its
reasonable efforts to forward, upon the request of the Company, and at the
Company's expense, any such request from the Company to the Holders and to
forward to the Company any such responses to such requests received by the
Depositary.
(6) Ownership Restrictions. Notwithstanding any other provision in
the Deposit Agreement, the Company may restrict transfers of the Shares,
Eligible Securities or securities convertible into Shares where the Company
informs the Depositary that such transfer might result in ownership of Shares
exceeding limits under applicable law, the SFC, the TSE or the Articles of
Incorporation of the Company. The Company may also restrict, in such manner as
it deems appropriate, transfers of ADSs where such transfer may result in the
total number of Shares, Eligible Securities, or securities convertible into
Shares represented by the ADSs owned by a single Holder or Beneficial Owner to
A-8
exceed any such limits. The Company may, in its sole discretion but subject to
applicable law, instruct the Depositary to take action with respect to the
ownership interest of any Holder or Beneficial Owner in excess of the limits set
forth in the preceding sentence, including but not limited to the imposition of
restrictions on the transfer of ADSs, the removal or limitation of voting rights
or mandatory sale or disposition on behalf of a Holder or Beneficial Owner of
the Deposited Securities represented by the ADSs held by such Holder or
Beneficial Owner in excess of such limitations, if and to the extent such
disposition is permitted by applicable law and the Articles of Incorporation of
the Company.
(7) Liability of Holder for Taxes, Duties and Other Charges. If any
tax or other governmental charge shall become payable with respect to any
Receipt or any Deposited Securities or ADSs, such tax, or other governmental
charge shall be payable by the Holders and Beneficial Owners to the Depositary.
The Company, the Custodian and/or the Depositary may withhold or deduct from any
distributions made in respect of Deposited Securities and may sell for the
account of a Holder and/or Beneficial Owner any or all of the Deposited
Securities and apply such distributions and sale proceeds in payment of such
taxes (including applicable interest and penalties) or charges, the Holder and
the Beneficial Owner hereof remaining liable for any deficiency. The Custodian
may refuse the deposit of Eligible Securities and the Depositary may refuse to
issue ADSs, to deliver Receipts, register the transfer, split-up or combination
of ADRs and (subject to Article (24) hereof) the withdrawal of Deposited
Securities until payment in full of such tax, charge, penalty or interest is
received. The Holders and Beneficial Owners may be asked to indemnify the
Depositary, the Company, the Custodian and any of their respective directors,
employees, agents and Affiliates against, and hold each of them harmless from,
any claims by any governmental authority with respect to taxes, additions to
tax, penalties or interest arising out of the inaccuracy of any information
provided by such Holder and/or Beneficial Owner in order to obtain any refund of
taxes, reduced rate of withholding at source or other tax benefit on behalf of
such Holder and/or Beneficial Owner.
(8) Representations and Warranties on Deposit of Eligible
Securities. Each person depositing Shares under the Deposit Agreement shall be
deemed thereby to represent and warrant that (i) such Shares (and the
certificates therefor) are duly authorized, validly issued, fully paid,
non-assessable and legally obtained by such person, (ii) all preemptive (and
similar) rights, if any, with respect to such Shares, have been validly waived
A-9
or exercised, (iii) the person making such deposit is duly authorized so to do
and (iv) the Shares presented for deposit are free and clear of any lien,
encumbrance, security interest, charge, mortgage or adverse claim and are not,
and the ADSs issuable upon such deposit will not be, Restricted Securities and
the Shares presented for deposit have not been stripped of any rights or
entitlements. Such representations and warranties shall survive the deposit and
withdrawal of Shares, the issuance and cancellation of ADSs in respect thereof
and the transfer of such ADSs.
If any such representations or warranties are false in any way, the
Company and Depositary shall be authorized, at the cost and expense of the
person depositing Shares, to take any and all actions necessary to correct the
consequences thereof.
(9) Filing Proofs, Certificates and Other Information. Any person
presenting Eligible Securities for deposit, any Holder and any Beneficial Owner
may be required, and every Holder and Beneficial Owner agrees from time to time
to provide to the Depositary and the Custodian such proof of citizenship or
residence, taxpayer status, payment of all applicable taxes or other
governmental charges, exchange control and any other applicable regulatory
approval, legal or beneficial ownership of ADSs and Deposited Securities,
compliance with applicable laws and the terms of the Deposit Agreement and the
provisions of, or governing, the Deposited Securities, to execute such
certifications and to make such representations and warranties and to provide
such other information or documentation (or, in the case of Eligible Securities
in registered form presented for deposit, such information relating to the
registration on the books of the Company or of the Eligible Securities
Registrar) as the Depositary or the Custodian may reasonably deem necessary or
proper or as the Company may reasonably require by written request to the
Depositary. The Depositary and the Registrar, as applicable, may withhold the
execution or delivery or registration of transfer of any Receipt or the
distribution or sale of any dividend or other distribution of rights or of the
proceeds thereof or, to the extent not limited by the terms of the Deposit
Agreement, the delivery of any Deposited Securities until such proof or other
information is filed or such certificates are executed, or such representations
A-10
are made or such other documents or information are provided, in each case to
the Depositary's, the Registrar's and the Company's satisfaction. The Depositary
shall provide the Company, in a timely manner, with copies or originals if
necessary and appropriate of (i) any such proofs of citizenship or residence,
taxpayer status, or exchange control approval which it receives from Holders and
Beneficial Owners, (ii) any other information or documents which the Company may
reasonably request and which the Depositary shall reasonably request and receive
from any Holder or Beneficial Owner or any person presenting Eligible Securities
for deposit or ADSs for cancellation, transfer or withdrawal, and (iii) in the
case of withdrawal of Shares, any information and documents provided by Holders
to the Depositary, in accordance with Exhibit C of the Deposit Agreement.
Nothing herein shall obligate the Depositary to (i) obtain any information for
the Company if not provided by the Holders or Beneficial Owners or (ii) verify
or vouch for the accuracy of the information so provided by the Holders or
Beneficial Owners.
(10) Charges of Depositary. The Depositary shall charge the
following fees for the services performed under the terms of the Deposit
Agreement:
(i) to any person to whom ADSs are issued upon the deposit
of Shares, a fee not in excess of U.S.$5.00 per 100 ADSs
(or portion thereof) so issued under the terms of the
Deposit Agreement (excluding issuances pursuant to
paragraph (iii) and (iv) below);
(ii) to any person surrendering ADSs for cancellation and
withdrawal of Deposited Securities, a fee not in excess
of U.S.$5.00 per 100 ADSs (or portion thereof) so
surrendered;
(iii) to any Holder of ADRs, a fee not in excess of U.S.$2.00
per 100 ADSs (or portion thereof) held for the
distribution of cash proceeds (i.e., upon the sale of
rights and other entitlements); no fee shall be payable
for the distribution of cash dividends or the
distribution of ADSs pursuant to stock dividends or
other free distributions of shares as long as such fees
prohibited by the exchange upon which the ADSs are
listed.
(iv) to any Holder of ADRs, a fee not in the excess of
U.S.$5.00 per 100 ADSs (or portion thereof) issued upon
the exercise of rights.
In addition, Holders, Beneficial Owners, person depositing Shares for
deposit and person surrendering ADSs for cancellation and withdrawal of
Deposited Securities will be required to pay the following charges:
(i) taxes (including applicable interest and penalties) and
other governmental charges;
A-11
(ii) such registration fees as may from time to time be in
effect for the registration of Shares or other Deposited
Securities on the share register and applicable to
transfers of Shares or other Deposited Securities to or
from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals,
respectively;
(iii) such cable, telex and facsimile transmission and
delivery expenses as are expressly provided in the
Deposit Agreement to be at the expense of the person
depositing or withdrawing Shares or Holders and
Beneficial Owners of ADSs;
(iv) the expenses and charges incurred by the Depositary in
the conversion of foreign currency;
(v) such fees and expenses as are incurred by the Depositary
in connection with compliance with exchange control
regulations and other regulatory requirements applicable
to Shares, Deposited Securities, ADSs and ADRs; and
(vi) the fees and expenses incurred by the Depositary in
connection with the delivery of Deposited Securities.
Any other charges and expenses of the Depositary under the Deposit
Agreement will be paid by the Company upon agreement between the Depositary and
the Company. All fees and charges may, at any time and from time to time, be
changed by agreement between the Depositary and Company but, in the case of fees
and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (22) of this Receipt. The Depositary will provide,
without charge, a copy of its latest fee schedule to anyone upon request. The
charges and expenses of the Custodian are for the sole account of the
Depositary.
(11) Title to Receipts. It is a condition of this Receipt, and every
successive Holder of this Receipt by accepting or holding the same consents and
agrees, that title to this Receipt (and to each ADS evidenced hereby) shall be
transferable on the same terms as a certificated security under the laws of the
State of New York, provided that the Receipt has been properly endorsed or is
accompanied by properly executed instruments of transfer. Notwithstanding any
notice to the contrary, the Depositary may deem and treat the Holder of this
Receipt (that is, the person in whose name this Receipt is registered on the
A-12
books of the Depositary) as the absolute owner thereof for all purposes. The
Depositary shall have no obligation nor be subject to any liability under the
Deposit Agreement or this Receipt to any holder of this Receipt or any
Beneficial Owner unless such holder is the Holder of this Receipt registered on
the books of the Depositary or, in the case of a Beneficial Owner, such
Beneficial Owner, or the Beneficial Owner's representative, is the Holder
registered on the books of the Depositary.
(12) Validity of Receipt. This Receipt (and the American Depositary
Shares represented hereby) shall not be entitled to any benefits under the
Deposit Agreement or be valid or enforceable for any purpose against the
Depositary or the Company unless this Receipt has been (i) dated, (ii) signed by
the manual or facsimile signature of a duly authorized signatory of the
Depositary, (iii) countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar, and (iv) registered in the books
maintained by the Registrar for the registration of issuances and transfers of
Receipts. Receipts bearing the facsimile signature of a duly-authorized
signatory of the Depositary or the Registrar, who at the time of signature was a
duly authorized signatory of the Depositary or the Registrar, as the case may
be, shall bind the Depositary, notwithstanding the fact that such signatory has
ceased to be so authorized prior to the delivery of such Receipt by the
Depositary.
(13) Available Information; Reports; Inspection of Transfer Books.
The Company is subject to the periodic reporting requirements of the Exchange
Act and accordingly files certain information with the Commission. These reports
and documents can be inspected and copied at the public reference facilities
maintained by the Commission located at Judiciary Plaza, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ and at the Commission's New York City office located at
Seven World ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Depositary
shall make available for inspection by Holders at its Principal Office any
reports and communications, including any instruction soliciting materials,
received from the Company which are both (a) received by the Depositary, the
Custodian, or the nominee of either of them as the holder of the Deposited
Securities and (b) made generally available to the holders of such Deposited
Securities by the Company. The Depositary shall also mail to Holders copies of
such reports when furnished by the Company pursuant to Section 5.6 of the
Deposit Agreement.
A-13
The Registrar shall keep books for the registration of issuances and
transfers of Receipts which at all reasonable times shall be open for inspection
by the Company and by the Holders of such Receipts, provided that such
inspection shall not be, to the Registrar's knowledge, for the purpose of
communicating with Holders of such Receipts in the interest of a business or
object other than the business of the Company or other than a matter related to
the Deposit Agreement or the Receipts.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar or
one or more co-registrars for registration of Receipts and transfers,
combinations and split-ups, and to countersign such Receipts in accordance with
any requirements of such exchanges or systems. Such Registrar or co-registrars
may be removed and a substitute or substitutes appointed by the Depositary.
The Registrar may close the transfer books with respect to the
Receipts, at any time or from time to time, when deemed necessary or advisable
by it in good faith in connection with the performance of its duties hereunder,
or at the reasonable written request of the Company subject, in all cases, to
Article (24) hereof.
Dated: CITIBANK, N.A.
as Depositary
Countersigned
By: By:
------------------------ ------------------------
Authorized Representative Vice President
The address of the Principal Office of the Depositary is ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
A-14
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(14) Dividends and Distributions in Cash, Eligible Securities, etc.
Subject always to the laws and regulations of the ROC, whenever the Depositary
receives confirmation from the Custodian of receipt of any cash dividend or
other cash distribution on any Deposited Securities, or receives proceeds from
the sale of any Deposited Securities or any entitlements held in respect of
Deposited Securities under the terms hereof, the Depositary will, if at the time
of receipt thereof any amounts received in a Foreign Currency can in the
judgment of the Depositary (pursuant to Section 4.7 of the Deposit Agreement) be
converted on a practicable basis into Dollars transferable to the United States,
promptly convert or cause to be converted such cash dividend, distribution or
proceeds into Dollars (on the terms described in Section 4.7 of the Deposit
Agreement) and will distribute promptly the amount thus received (net of (a) the
applicable fees and charges of, and reasonable expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders entitled thereto as of the ADS
Record Date in proportion to the number of American Depositary Shares held as of
the ADS Record Date. The Depositary shall distribute only such amount, however,
as can be distributed without attributing to any Holder a fraction of one cent,
and any balance not so distributed shall be held by the Depositary (without
liability for interest thereon) and shall be added to and become part of the
next sum received by the Depositary for distribution to Holders of ADSs
outstanding at the time of the next distribution. If the Company, the Custodian
or the Depositary is required to withhold and does withhold from any cash
dividend or other cash distribution in respect of any Deposited Securities an
amount on account of taxes, duties or other governmental charges, the amount
distributed to Holders on the American Depositary Shares representing such
Deposited Securities shall be reduced accordingly. Such withheld amounts shall
be forwarded by the Company, the Custodian or the Depositary to the relevant
governmental authority. Evidence of payment thereof by the Company shall be
forwarded by the Company to the Depositary upon request.
Subject always to the laws and regulations of the ROC, if any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of Eligible Securities, the Company shall cause such Eligible
Securities to be deposited with the Custodian and registered, as the case may
be, in the name of the Depositary, the Custodian or any of their nominees. Upon
receipt of confirmation of such deposit from the Custodian, the Depositary shall
A-15
establish the ADS Record Date upon the terms described in Section 4.8 of the
Deposit Agreement and either (i) the Depositary shall, subject to Section 5.9
thereof, and the laws and regulations of the ROC, distribute to the Holders as
of the ADS Record Date in proportion to the number of American Depositary Shares
held as of the ADS Record Date, additional American Depositary Shares, which
represent in the aggregate the number of Eligible Securities received as such
dividend, or free distribution, subject to the other terms of this Deposit
Agreement (including, without limitation, (a) the applicable fees and charges
of, and reasonable expenses incurred by, the Depositary and (b) taxes), or (ii)
if additional American Depositary Shares are not so distributed, each American
Depositary Share issued and outstanding after the ADS Record Date shall, to the
extent permissible by law, thenceforth also represent rights and interests in
the additional integral number of Eligible Securities distributed upon the
Deposited Securities represented thereby (subject to the laws and regulations of
the ROC and net of (a) the applicable fees and charges of, and expenses incurred
by, the Depositary and (b) taxes). In lieu of delivering fractional American
Depositary Shares, the Depositary shall sell the number of Eligible Securities
or American Depositary Shares, as the case may be, represented by the aggregate
of such fractions and distribute the net proceeds upon the terms described in
Section 4.1 of the Deposit Agreement. In the event that (x) the Depositary
determines that any distribution in property (including Eligible Securities) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, or, (y) if the Company, in the fulfillment of its
obligation under Section 5.7 of the Deposit Agreement, has furnished an opinion
of U.S. counsel determining that Eligible Securities must be registered under
the Securities Act or other laws in order to be distributed to Holders (and no
such registration statement has been declared effective), or (z) the deposit of
Eligible Securities is not permitted under the laws or regulations of the ROC,
the Depositary may dispose of all or a portion of such property (including
Eligible Securities and rights to subscribe therefor) in such amounts and in
such manner, including by public or private sale, as the Depositary deems
necessary and practicable, and the Depositary shall distribute the net proceeds
of any such sale (after deduction of such (a) taxes and (b) fees and charges of,
and reasonable expenses incurred by, the Depositary) to Holders entitled thereto
upon the terms described in Section 4.1 of the Deposit Agreement. The Depositary
shall hold and/or distribute any unsold balance of such property in accordance
with the provisions of the Deposit Agreement.
A-16
Subject always to the laws and regulations of the ROC, whenever the
Company intends to distribute to the holders of the Deposited Securities rights
to subscribe for additional Eligible Securities, the Company shall give timely
notice thereof to the Depositary stating whether or not it wishes such rights to
be made available to Holders of ADSs. Upon receipt of a notice indicating that
the Company wishes such rights to be made available to Holders of ADSs, the
Depositary shall consult with the Company to determine, and the Company shall
assist the Depositary in its determination, whether it is lawful and reasonably
practicable to make such rights available to the Holders. The Depositary shall
make such rights available to Holders only if (i) the Company shall have
requested that such rights be made available to Holders, (ii) the Depositary
shall have received satisfactory documentation within the terms of Section 5.7
of the Deposit Agreement, and (iii) the Depositary shall have determined that
such distribution of rights is reasonably practicable. In the event any of the
conditions set forth above are not satisfied, the Depositary shall proceed with
the sale of the rights as contemplated in Section 4.3.2 of the Deposit
Agreement. In the event all conditions set forth above are satisfied, the
Depositary shall establish an ADS Record Date (upon the terms described in
Section 4.8 of the Deposit Agreement) and establish procedures to distribute
rights to purchase additional ADSs (by means of warrants or otherwise) and to
enable the Holders to exercise such rights (upon payment of applicable (a) fees
and charges of; and reasonable expenses incurred by, the Depositary and (b)
taxes). The Company shall assist the Depositary to the extent necessary in
establishing such procedures. Nothing herein shall obligate the Depositary to
make available to the Holders a method to exercise rights to subscribe for
Eligible Securities (rather than ADSs).
If (i) the Company does not request the Depositary to make the
rights available to Holders or requests that the rights not be made available to
Holders, (ii) the Depositary fails to receive satisfactory documentation within
the terms of Section 5.7 of the Deposit Agreement or determines it is not
reasonably practicable to make the rights available to Holders, or (iii) any
rights made available are not exercised and appear to be about to lapse, the
Depositary shall determine whether it is lawful and reasonably practicable to
sell such rights, in a riskless principal capacity, at such place and upon such
terms (including public or private sale) as it may deem practical. The Company
shall assist the Depositary to the extent necessary to determine such legality
and practicability. The Depositary shall, upon such sale, convert and distribute
proceeds of such sale (net of applicable (a) fees and charges of, and reasonable
expenses incurred by, the Depositary and (b) taxes) upon the terms set forth in
Section 4.1 of the Deposit Agreement.
A-17
If the Depositary is unable to make any rights available to Holders
upon the terms described in Section 4.3.1 of the Deposit Agreement or to arrange
for the sale of the rights upon the terms described in Section 4.3.2 of the
Deposit Agreement, the Depositary shall allow such rights to lapse.
The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or practicable to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding anything to the contrary in Section 4.3 of the
Deposit Agreement, if registration (under the Securities Act or any other
applicable law) of the rights or the securities to which any rights relate may
be required in order for the Company to offer such rights or such securities to
Holders and to sell the securities represented by such rights, the Depositary
will not distribute such rights to the Holders unless and until a registration
statement under the Securities Act (or other applicable law) covering such
offering is in effect. In the event that the Company, the Depositary or the
Custodian shall be required to withhold and does withhold from any distribution
of property (including rights) an amount on account of taxes or other
governmental charges, the amount distributed to the Holders of American
Depositary Shares representing such Deposited Securities shall be reduced
accordingly. In the event that the Depositary determines that any distribution
in property (including Eligible Securities and rights to subscribe therefor) is
subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Eligible Securities and rights to subscribe therefor) in
such amounts and in such manner, including by public or private sale, as the
Depositary deems necessary and practicable to pay any such taxes or charges.
Because ROC law presently does not contemplate the issuance of
rights in negotiable form and the possibility of such issuance is unlikely, a
liquid market for rights may not exist, and this may adversely affect (1) the
ability of the Depositary to dispose of such rights or (2) the amount the
Depositary would realize upon disposal of rights.
A-18
There can be no assurance that Holders generally, or any Holder in
particular, will be given the opportunity to receive or exercise rights on the
same terms and conditions as the holders of Deposited Securities or be able to
exercise such rights. Nothing herein shall obligate the Company to file any
registration statement in respect of any rights or Eligible Securities or other
securities to be acquired upon the exercise of such rights.
Whenever the Company intends to distribute to the holders of
Deposited Securities property other than cash, Eligible Securities or rights to
purchase additional Eligible Securities, the Company shall give timely notice
thereof to the Depositary and shall indicate whether or not it wishes such
distribution to be made to Holders of ADSs. Upon receipt of a notice indicating
that the Company wishes such distribution be made to Holders of ADSs, the
Depositary shall consult with the Company, and the Company shall assist the
Depositary, to determine whether such distribution to Holders is lawful and
reasonably practicable. The Depositary shall not make such distribution unless
(i) the Company shall have requested the Depositary to make such distribution to
Holders, (ii) the Depositary shall have received satisfactory documentation
within the terms of Section 5.7 of the Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution is reasonably
practicable.
Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the requisite
determinations set forth in the paragraph above, the Depositary shall distribute
the property so received to the Holders of record, as of the ADS Record Date, in
proportion to the number of ADSs held by them respectively and in such manner as
the Depositary may deem practicable for accomplishing such distribution (i) upon
receipt of payment or net of the applicable fees and charges of, and expenses
incurred by, the Depositary, and (ii) net of any taxes withheld. The Depositary
may dispose of all or a portion of the property so distributed and deposited, in
such amounts and in such manner (including by public or private sale) as the
Depositary, may deem practicable or necessary to satisfy any taxes (including
applicable interest and penalties) or other governmental charges applicable to
the distribution.
If (i) the Company does not request the Depositary to make such
distribution to Holders or requests the Depositary not to make such distribution
to Holders, (ii) the Depositary does not receive satisfactory documentation
within the terms of Section 5.7 of the Deposit Agreement, or (iii) the
Depositary determines that all or a portion of such distribution is not
A-19
reasonably practicable, the Depositary shall sell or cause such property to be
sold in a public or private sale, at such place or places and upon such terms as
it may deem practicable and shall (i) cause the proceeds of such sale, if any,
to be converted into Dollars and (ii) distribute the proceeds of such conversion
received by the Depositary (net of applicable (a) fees and charges of and
expenses incurred by, the Depositary and (b) taxes) to the Holders as of the ADS
Record Date upon the terms of Section 4.1 of the Deposit Agreement. If the
Depositary is unable to sell such property, the Depositary may dispose of such
property in any way it deems reasonably practicable under the circumstances.
Subject always to the laws and regulations of the ROC and to the
terms of Article IV of the Deposit Agreement, distributions in respect of
Deposited Securities that are held by the Depositary in bearer form shall be
made to the Depositary for the account of the respective Holders of Receipts
with respect to which any such distribution is made upon due presentation by the
Depositary or the Custodian to the Company of any relevant coupons, talons, or
certificates. The Company shall promptly notify the Depositary of such
distributions. The Depositary or the Custodian shall promptly present such
coupons, talons or certificates, as the case may be, in connection with any such
distribution.
(15) Redemption. If the Company intends to exercise any right of
redemption in respect of any of the Deposited Securities, the Company shall give
notice thereof to the Depositary at least 60 days prior to the intended date of
redemption which notice shall set forth the particulars of the proposed
redemption. Upon receipt of such (i) notice and (ii) satisfactory documentation
given by the Company to the Depositary within the terms of Section 5.7 of the
Deposit Agreement, and only if the Depositary shall have determined that such
proposed redemption is practicable, the Depositary shall mail to each Holder a
notice setting forth the intended exercise by the Company of the redemption
rights and any other particulars set forth in the Company's notice to the
Depositary. The Depositary shall instruct the Custodian to present to the
Company the Deposited Securities in respect of which redemption rights are being
exercised against payment of the applicable redemption price. Upon receipt of
confirmation from the Custodian that the redemption has taken place and that
funds representing the redemption price have been received, the Depositary shall
A-20
convert, transfer, and distribute the proceeds (net of applicable (a) fees and
charges of, and the reasonable expenses incurred by, the Depositary, and (b)
taxes), retire ADSs and cancel ADRs upon delivery of such ADSs by Holders
thereof and the terms set forth in Sections 4.1 and 6.2 of the Deposit
Agreement. If less than all outstanding Deposited Securities are redeemed, the
ADSs to be retired will be selected by lot or on a pro rata basis, as may be
determined by the Depositary. The redemption price per ADS shall be the per
share amount received by the Depositary upon the redemption of the Deposited
Securities represented by American Depositary Shares (subject to the terms of
Section 4.7 of the Deposit Agreement and the applicable fees and charges of, and
expenses incurred by, the Depositary, and taxes) multiplied by the number of
Deposited Securities represented by each ADS redeemed.
(16) Fixing of ADS Record Date. Whenever the Depositary shall
receive notice of the fixing of a record date by the Company for the
determination of holders of Deposited Securities entitled to receive any
distribution (whether in cash, Eligible Securities, rights, or other
distribution), or whenever for any reason the Depositary causes a change in the
number of Eligible Securities that are represented by each American Depositary
Share, or whenever the Depositary shall receive notice of any meeting of, or
solicitation of consents or of instructions, of holders of Deposited Securities,
or whenever the Depositary shall find it necessary or convenient in connection
with the giving of any notice, solicitation of any consent or any other matter,
the Depositary shall fix a record date (the "ADS Record Date") for the
determination of the Holders of Receipts who shall be entitled to receive such
distribution, to give instructions for the exercise of voting rights at any such
meeting, to give or withhold such consent, to receive such notice or
solicitation or to otherwise take action, or to exercise the rights of Holders
with respect to such changed number of Eligible Securities represented by each
American Depositary Share. The Depositary shall make reasonable efforts to
establish the ADS Record Date as closely as possible to the applicable record
date for the Deposited Securities (if any). Subject to applicable law and the
provisions of Section 4.1 through 4.7 of the Deposit Agreement and to the other
terms and conditions of the Deposit Agreement, only the Holders of Receipts at
the close of business in New York on such ADS Record Date shall be entitled to
receive such distribution, to give such voting instructions, to receive such
notice or solicitation, or otherwise take action.
A-21
(17) Voting of Deposited Securities.
(a) Voting by Shareholders. The ROC Company Law and the Articles of
Incorporation of the Company, in each case, as in effect on the date hereof,
provide that: (i) a holder of Shares (including holders of interests in any
Certificate of Payment evidencing the irrevocable right to receive Shares) is
entitled to one vote for each Share held, except that the number of votes of a
holder of more than 3% of the total outstanding Shares is discounted by the
Company by a factor of 2% of that portion of the Shares held in excess of 3%
(e.g., a holder of 10% of the total outstanding Shares would be permitted to
exercise voting rights only with respect of a 9.86% of such Shares) and (ii) a
shareholder must, as to all matters subject to a vote of shareholders (other
than the election of directors and supervisors), exercise the voting rights for
all Shares held by such shareholder in the same manner (e.g., a holder of 1,000
Shares cannot split his/her votes but must vote all 1,000 Shares in the same
manner). The voting rights attaching to the Deposited Securities must be
exercised by, or on behalf of, the Depositary, as representative of the Holders,
collectively in the same manner, except in the case of an election of directors
and supervisors, which shall be on a cumulative basis. Deposited Securities
which have been withdrawn from the ADR Facilities and timely transferred on the
Company's register of shareholders to a person other than the Depositary may be
voted by the registered holder(s) thereof directly, subject, in each case, to
the limitations of ROC law and the Articles of Incorporation of the Company.
Holders may not receive sufficient advance notice of shareholders' meetings to
enable them to timely withdraw the Deposited Securities and vote at such
meetings and may not be able to re-deposit the withdrawn securities under the
terms of the Deposit Agreement.
(b) Voting by ADS Holders. Holders of ADSs have no individual voting
rights with respect to the Deposited Securities represented by their ADSs. Each
Holder shall be deemed, by acceptance of ADSs or acquisition of any beneficial
interest therein, to have authorized and directed the Depositary, without
liability, to appoint the Chairman of the Board of Directors of the Company (or
his/her designate) (the "Voting Representative"), as representative of the
Depositary, the Custodian or the nominee who is registered in the ROC as
representative of the Holders in respect of the Deposited Securities (the
"Registered Holder"), to vote the Shares or other Deposited Securities in
accordance with the terms hereof.
A-22
The Company agrees to timely notify the Depositary of any proposed
shareholders' meeting and to provide to the Depositary in New York, at least 24
calendar days before any shareholders' meeting, sufficient copies as the
Depositary may reasonably request of English language translations of the
Company's notice of shareholders' meeting and the agenda of the materials to be
voted on (in the form the Company generally makes available to holders of Shares
in the ROC), including, without limitation, a list of candidates proposed by the
Company for an election of directors or supervisors (such materials
collectively, the "Shareholder Notice"). As soon as practicable after receipt by
the Depositary of the requisite number of Shareholder Notices, the Depositary
shall establish the ADS Record Date (upon the terms of Section 4.8 of the
Deposit Agreement) and shall, at the Company's expense and, provided no U.S.
legal prohibitions exist, deliver to Holders as of the applicable ADS Record
Date, (i) the Shareholder Notice, (ii) a depositary notice setting forth the
manner in which Holders of ADSs may instruct the Depositary to cause the
Deposited Securities represented by their ADSs to be voted under the terms of
this Deposit Agreement including, a description of the Management Instruction
(as defined below), together with a form of voting instructions and/or other
means to provide voting instructions (the depositary notice and the related
materials prepared by the Depositary collectively, the "Depositary Notice"). The
Depositary is under no obligation to deliver the Shareholder Notice and the
Depositary Notice to Holders if the Company has failed to provide to the
Depositary in New York the requisite number of Shareholder Notices at least 24
calendar days prior to the date of any shareholders' meeting. If the Depositary
has not delivered the Shareholder Notice or Depositary Notice to Holders, it
will endeavor to cause all Deposited Securities represented by ADRs to be
present at the relevant shareholders' meeting insofar as practicable and
permitted under applicable law but will not cause the Shares or other Deposited
Securities to be voted; provided, however, that the Depositary may determine, at
its sole discretion, to send such Shareholder Notice and Depositary Notice to
Holders and/or cause the Shares or other Deposited Securities to be voted as it
deems appropriate. There can be no assurance that Holders generally or any
Holder in particular will receive Shareholder Notices and Depositary Notices
with sufficient time to enable the return of voting instructions to the
Depositary in a timely manner.
Notwithstanding anything else contained in the Deposit Agreement,
the Depositary shall not have any obligation to take any action with respect to
any meeting, or solicitation of consents or instructions, of holders of Shares
or other Deposited Securities if the taking of such action would violate U.S.
laws.
A-23
(c) Voting of Deposited Securities Upon ADS Holders' Instructions.
If Holders of ADSs together holding at least 51% of all the ADSs (including
Temporary ADSs) outstanding as of the relevant ADS Record Date shall instruct
the Depositary, prior to the date established for such purpose by the
Depositary, to vote in the same manner in respect of one or more resolutions to
be proposed at a shareholders' meeting (including resolutions for the election
directors and/or supervisors), the Depositary shall notify to and appoint the
Voting Representative as the representative of the Depositary and the Registered
Holder to attend such shareholders' meeting and vote all Deposited Securities
evidenced by ADSs then outstanding (including Temporary ADSs) in the manner so
instructed by such Holders. If voting instructions are received by the
Depositary on or before the date established by the Depositary for the receipt
of such instructions from any Holder as of the ADS Record Date, which are signed
but without further indication as to voting instructions, the Depositary shall
deem such Holder to have instructed a vote in favor of the items set forth in
such instructions. The Depositary and Custodian shall not have any obligation to
monitor, and shall not incur any liability for, the actions, or the failure to
act, of the Voting Representative as representative of the Registered Holder.
(d) Management Instruction. If, for any reason (other than a failure
by the Company to supply the requisite number of Shareholder Notices to the
Depositary within the requisite time period provided in Section 4.9 of the
Deposit Agreement, the Depositary has not, prior to the date established for
such purpose by the Depositary received instructions from Holders together
holding at least 51% of all ADSs (including Temporary ADSs) outstanding at the
relevant ADS Record Date, to vote in the same manner in respect of any
resolution (including resolutions for the election of directors and/or
supervisors), then, subject to the following paragraph, the Holders shall be
deemed to have authorized and directed the Depositary to give a discretionary
instruction (a "Management Instruction") to the Voting Representative as the
representative of the Registered Holder to attend and vote at such meeting all
the Deposited Securities represented by ADSs then outstanding (including
Temporary ADSs) in his or her discretion. In such circumstances, the Voting
Representative shall be free to exercise the votes attaching to the Deposited
Securities in any manner he or she wishes, which may not be in the interests of
the Holders.
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The Depositary's grant of a Management Instruction in the manner and
circumstances described in the preceding paragraph shall be subject to the
receipt by the Depositary prior to each shareholders' meeting of an opinion of
ROC counsel of the Company addressed to, and in form and substance satisfactory
to, the Depositary to the effect that under ROC law (i) the arrangements
relating to the Management Instruction are permissible, and (ii) the Depositary
will not be deemed to be authorized to exercise any discretion when causing the
voting in accordance with Section 4.9 of the Deposit Agreement and will not be
subject to any potential liability under ROC law for losses arising from such
voting. In the event the Depositary does not receive such opinion, the
Depositary will not grant the Management Instruction but will cause the
Deposited Securities to be present at the shareholders' meeting to the extent
practicable and permitted by applicable law but will not cause the Deposited
Securities to be voted or the Management Instruction to be granted.
The Depositary shall not, and the Depositary shall ensure that the
Custodian and its nominees do not, vote or attempt to exercise the right to vote
that attaches to the Shares or other Deposited Securities, other than in
accordance with instructions given in accordance with Section 4.9 of the Deposit
Agreement. The terms of Section 4.9 of the Deposit Agreement may be amended from
time to time in accordance with the terms of the Deposit Agreement. By
continuing to hold ADSs after the effective time of such amendment all Holders
and Beneficial Owners shall be deemed to have agreed to the terms of Section 4.9
of the Deposit Agreement as so amended.
(18) Changes Affecting Deposited Securities. Upon any change in
nominal or par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it is a party, any securities which shall be received by the
Depositary or the Custodian in exchange for, or in conversion of or replacement
of or otherwise in respect of, such Deposited Securities shall, to the extent
permitted by law, be treated as new Deposited Securities under the Deposit
Agreement, and the Receipts shall, subject to the provisions of the Deposit
Agreement and applicable law, evidence ADSs representing the right to receive
such additional or replacement securities, as applicable. The Depositary may,
A-25
with the Company's approval, and shall, if the Company shall so request, subject
to the terms of the Deposit Agreement and receipt of satisfactory documentation
contemplated by the Deposit Agreement, execute and deliver additional or
replacement Receipts as in the case of a dividend of Eligible Securities, or
call for the surrender of outstanding Receipts to be exchanged for new Receipts,
in either case, as well as in the event of newly deposited Shares, with
necessary modifications to the form of Receipt contained in this Exhibit A to
the Deposit Agreement, specifically describing such new Deposited Securities or
corporate change. Notwithstanding the foregoing, in the event that any security
so received may not be lawfully distributed to some or all Holders, the
Depositary may, with the Company's approval, and shall if the Company requests,
subject to receipt of satisfactory legal documentation contemplated in the
Deposit Agreement, sell such securities at public or private sale, at such place
or places and upon such terms as it may deem proper and may allocate the net
proceeds of such sales (net of (a) fees and charges of, and reasonable expenses
incurred by, the Depositary and (b) taxes) for the account of the Holders
otherwise entitled to such securities upon an averaged or other practicable
basis without regard to any distinctions among such Holders and distribute the
net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to the Deposit Agreement. The Depositary
shall not be responsible for (i) any failure to determine that it may be lawful
or feasible to make such securities available to Holders in general or any
Holder in particular, (ii) any foreign exchange exposure or loss incurred in
connection with such sale, or (iii) any liability to the purchaser of such
securities.
(19) Exoneration. Neither the Depositary nor the Company shall be
obligated to do or perform any act which is inconsistent with the provisions of
the Deposit Agreement or incur any liability (i) if the Depositary or the
Company shall be prevented or forbidden from, or delayed in, doing or performing
any act or thing required by the terms of the Deposit Agreement, by reason of
any provision of any present or future law or regulation of the United States,
the ROC or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or on account of the possible criminal
or civil penalties or restraint, or by reason of any provision, present or
future of the Articles of Incorporation of the Company or any provision of or
governing any Deposited Securities, or by reason of any act of God or war or
other circumstances beyond its control (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
A-26
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement or in the Articles of Incorporation of the Company or
provisions of or governing Deposited Securities, (iii) for any action or
inaction in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, any
Beneficial Owner or authorized representative thereof, or any other person
believed by it in good faith to be competent to give such advice or information,
(iv) for the inability by a Holder or Beneficial Owner to benefit from any
distribution, offering, right or other benefit which is made available to
holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of American Depositary Shares or (v) for
any consequential or punitive damages for any breach of the terms of the Deposit
Agreement.
The Depositary, its controlling persons, its agents, any Custodian
and the Company, its controlling persons and its agents may rely and shall be
protected in acting upon any written notice, request or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
No disclaimer of liability under the Securities Act is intended by
any provision of the Deposit Agreement.
(20) Standard of Care. The Company and its agents assume no
obligation and shall not be subject to any liability under the Deposit Agreement
or the Receipts to Holders or Beneficial Owners or other persons, except that
the Company and its agents agree to perform their obligations specifically set
forth in the Deposit Agreement without negligence or bad faith.
The Depositary and its agents assume no obligation and shall not be
subject to any liability under the Deposit Agreement or the Receipts to Holders
or Beneficial Owners or other persons, except that the Depositary and its agents
agree to perform their obligations specifically set forth in the Deposit
Agreement without negligence or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall be
under any obligation to appear in, prosecute or defend any action, suit or other
proceeding in respect of any Deposited Securities or in respect of the Receipts,
which in its opinion may involve it in expense or liability, unless indemnity
satisfactory to it against all expense (including fees and disbursements of
counsel) and liability be furnished as often as may be required (and no
Custodian shall be under any obligation whatsoever with respect to such
proceedings, the responsibility of the Custodian being solely to the
Depositary).
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The Depositary and its agents shall not be liable for any failure to
carry out any instructions to vote any of the Deposited Securities, or for the
manner in which any vote is cast or the effect of any vote, provided that any
such action or omission is in good faith and in accordance with the terms of
this Deposit Agreement. Provided that the Depositary acts or omits to act in
good faith and without negligence, the Depositary shall not incur any liability
for any failure to determine that any distribution or action may be lawful or
reasonably practicable, for the content of any information submitted to it by
the Company for distribution to the Holders or for any inaccuracy of any
translation thereof, for any investment risk associated with acquiring an
interest in the Deposited Securities, for the validity or worth of the Deposited
Securities or for any tax consequences that may result from the ownership of
ADSs, Shares or Deposited Securities, for the credit-worthiness of any third
party, for allowing any rights to lapse upon the terms of this Deposit Agreement
or for the failure or timeliness of any notice from the Company or for the
failure of the Company to exchange any Certificate of Payment into Shares. The
Depositary shall not be obligated in any way to monitor or enforce the
obligations of the Company, including, without limitation, in respect of any
Certificate of Payment, the conversion of such Certificate of Payment into
Shares.
(21) Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary under
the Deposit Agreement by written notice of resignation delivered to the Company,
such resignation to be effective on the earlier of (i) the 60th day after
delivery thereof to the Company (whereupon the Depositary shall be entitled to
take the actions contemplated in Section 6.2 of the Deposit Agreement), or (ii)
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 written notice of such removal, which removal shall be
effective on the earlier of (i) the 60th day after delivery thereof to the
Depositary (whereupon the Depositary shall be entitled to take the actions
contemplated in Section 6.2 of the Deposit Agreement), or (ii) upon the
appointment by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided.
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The Depositary may at any time be removed by the Company by written
notice of such removal, which removal shall be effective on the earlier of (i)
the 60th day after delivery thereof to the Depositary (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2 of the Deposit
Agreement), or (ii) upon the appointment by the Company of a successor
depositary and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting under the Deposit
Agreement shall resign or be removed, the Company shall use its best efforts to
appoint a successor depositary, which shall be a bank or trust company having an
office in the Borough of Manhattan, The City of New York. Every successor
depositary shall be required by the Company to execute and deliver to its
immediate predecessor and to the Company an instrument in writing accepting its
appointment under the Deposit Agreement, and thereupon such successor
depositary, without any further act or deed (except as required by applicable
law), shall become fully vested with all the rights, powers, duties and
obligations of its immediate predecessor (other than as contemplated in Section
5.8 and 5.9 of the Deposit Agreement). The immediate predecessor depositary,
upon payment of all sums due it and on the written request of the Company shall,
(i) execute and deliver an instrument transferring to such successor all rights
and powers of such predecessor hereunder (other than as contemplated in Sections
5.8 and 5.9 of the Deposit Agreement), (ii) duly assign, transfer and deliver
all right, title and interest to the Deposited Securities to such successor, and
(iii) deliver to such successor a list of the Holders of all outstanding
Receipts and such other information relating to Receipts and Holders thereof as
the successor may reasonably request. Any such successor depositary shall
promptly mail notice of its appointment to such Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
(22) Amendment/Supplement. This Receipt and any provisions of the
Deposit Agreement may at any time and from time to time be amended or
supplemented by written agreement between the Company and the Depositary in any
respect which they may deem necessary or desirable without the prior written
consent of the Holders or Beneficial Owners. Any amendment or supplement which
shall impose or increase any fees or charges (other than the charges in
connection with foreign exchange control regulations, and taxes and other
governmental charges, delivery and other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders or Beneficial
A-29
Owners, shall not, however, become effective as to this Receipt until the
expiration of 30 days after notice of such amendment or supplement shall have
been given to the Holders of this Receipt. The parties hereto agree that any
amendments or supplements which (i) are reasonably necessary (as agreed by the
Company and the Depositary) in order for (a) the ADSs to be registered on Form
F-6 under the Securities Act or (b) the ADSs to be traded solely in electronic
book-entry form and (ii) do not in either such case impose or increase any fees
or charges to be borne by Holders, shall be deemed not to materially prejudice
any substantial rights of Holders or Beneficial Owners. Every Holder and
Beneficial Owner at the time any amendment or supplement so becomes effective
shall be deemed, by continuing to hold such ADS(s), to consent and agree to such
amendment or supplement and to be bound by the Deposit Agreement as amended or
supplemented thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any governmental
body should adopt new laws, rules or regulations which would require amendment
or supplement of the Deposit Agreement to ensure compliance therewith, the
Company and the Depositary may amend or supplement the Deposit Agreement and
this Receipt at any time in accordance with such changed laws, rules or
regulations. Such amendment or supplement to the Deposit Agreement and this
Receipt in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws or rules or regulations.
(23) Termination. The Depositary shall, at any time at the written
direction of the Company, terminate the Deposit Agreement by mailing notice of
such termination to the Holders of all Receipts then outstanding at least 30
days prior to the date fixed in such notice for such termination. If 60 days
shall have expired after (i) the Depositary shall have delivered to the Company
a written notice of its election to resign, or (ii) the Company shall have
delivered to the Depositary a written notice of the removal of the Depositary,
and in either case a successor depositary shall not have been appointed and
accepted its appointment as provided herein and in the Deposit Agreement, the
Depositary may terminate the Deposit Agreement by mailing notice of such
A-30
termination to the Holders of all Receipts then outstanding at least 30 days
prior to the date fixed for such termination. On and after the date of
termination of the Deposit Agreement, the Holder of this Receipt will, upon
surrender of this Receipt at the Principal Office of the Depositary, upon the
payment of the charges of the Depositary for the surrender of ADSs referred to
in Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions set forth therein and subject always to the restrictions on
withdrawal as may be in effect under the laws and regulations of the ROC, and
upon payment of any applicable taxes or governmental charges, be entitled to
Delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding after the
date of termination of the Deposit Agreement, the Registrar thereafter shall
discontinue the registration of transfers of Receipts, and the Depositary shall
suspend the distribution of dividends to the Holders thereof, and shall not give
any further notices or perform any further acts under the Deposit Agreement,
except that the Depositary shall continue to collect dividends and other
distributions pertaining to Deposited Securities, shall sell rights as provided
in the Deposit Agreement, and shall continue to deliver Deposited Securities,
subject to the conditions and restrictions set forth in the Deposit Agreement,
together with any dividends or other distributions received with respect thereto
and the net proceeds of the sale of any rights or other property, in exchange
for Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case, the charges of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder in accordance with the terms
and conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). At any time after the expiration of six months from the
date of termination of the Deposit Agreement, the Depositary may sell the
Deposited Securities then held hereunder and may thereafter hold uninvested the
net proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders whose Receipts have not theretofore been
surrendered such Holders thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under the Deposit Agreement with respect to
the Receipts, the Deposited Securities and the ADSs, except to account for such
net proceeds and other cash (after deducting, or charging, as the case may be,
in each case the charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of the Deposit Agreement and any applicable taxes or governmental
charges or assessments). Upon the termination of the Deposit Agreement, the
Company shall be discharged from all obligations under the Deposit Agreement
except as set forth in the Deposit Agreement.
A-31
(24) Compliance with U.S. Securities Laws. Notwithstanding any
provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
(25) Certain Rights of the Depositary; Limitations. Subject to the
further terms and provisions of this Article (25), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its Affiliates and in ADSs. In its capacity as
Depositary, the Depositary shall not lend Eligible Securities or ADSs; provided,
however, that, subject to ROC law and regulations, the Depositary may (i) issue
ADSs prior to the receipt of Eligible Securities pursuant to Section 2.3 of the
Deposit Agreement and (ii) deliver Eligible Securities upon the receipt of ADSs
for cancellation upon withdrawal of Deposited Securities pursuant to Section 2.7
of the Deposit Agreement, including ADSs which were issued under (i) above but
for which Eligible Securities may not have been received (each such transaction
a "Pre-Release Transaction"). The Depositary may receive ADSs in lieu of
Eligible Securities under (i) above and receive Eligible Securities in lieu of
ADSs under (ii) above. Each such Pre-Release Transaction will be (a) subject to
a written agreement whereby the person or entity (the "Applicant") to whom ADSs
or Eligible Securities are to be delivered (w) represents that at the time of
the Pre-Release Transaction the Applicant or its customer owns the Eligible
Securities or ADSs that are to be delivered by the Applicant under such
Pre-Release Transaction, (x) agrees to indicate the Depositary as owner of such
Eligible Securities or ADSs in its records and to hold such Eligible Securities
or ADSs in trust for the Depositary until such Eligible Securities or ADSs are
delivered to the Depositary or the Custodian, (y) unconditionally guarantees to
deliver to the Depositary or the Custodian, as applicable, such Eligible
Securities or ADSs, and (z) agrees to any additional restrictions or
requirements that the Depositary deems appropriate, (b) at all times fully
collateralized with cash, United States government securities or such other
A-32
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.
Notwithstanding any other provision of the Deposit Agreement, the Depositary
shall not issue ADSs prior to the receipt of Eligible Securities in the case of
the deposit of Eligible Securities to be made by the Company in connection with
an offering of ADSs or pursuant to Sections 4.2 or 4.3 of the Deposit Agreement,
unless requested by the Company and to the extent permitted by applicable law.
The Depositary will normally limit the number of ADSs involved in
new Pre-Release Transactions at any one time to thirty percent (30%) of the ADSs
outstanding (without giving effect to ADSs outstanding under (i) above),
provided, however, that the Depositary reserves the right to disregard such
limit from time to time as it deems appropriate, and may, with the prior written
consent of the Company, change such limit for purposes of general application.
The Depositary may also set limits with respect to the number of
ADSs involved in Pre-Release Transactions with any one person on a case by case
basis as it deems appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the foregoing. Collateral
provided pursuant to (b) above, but not the earnings thereon, shall be held for
the benefit of the Holders (other than the Applicant). Neither Temporary ADSs
nor any interest in any Payment Certificate shall be eligible for
Pre-Release-Transactions under the Deposit Agreement.
(26) Right to Submit Proposals at Annual Ordinary Meeting of
Shareholders.
(a) Proposals by Shareholders. The Company has informed the
Depositary that under ROC Company Law, as in effect as of the date of the
Deposit Agreement, holders of one percent (1%) or more of the total issued and
outstanding Shares (including the treasury Shares) of the Company as of the
applicable record date for determining holders of Shares with the right to vote
at an annual ordinary meeting of the Company's shareholders (the "Shareholder
Proposal Record Date"), are entitled to submit one (1) written proposal (the
"Proposal") each year for consideration at the annual ordinary meeting of the
Company's shareholders, provided that: (i) the Proposal is in the traditional
Chinese language and does not exceed 300 Chinese characters (including the
reason(s) for the Proposal, all accompanying supporting statements and all
punctuation marks) in length, (ii) the Proposal is submitted to the Company
A-33
during the period for submission of Proposals (the "Submission Period")
announced by the Company (it being agreed by the Company that the Company shall
announce publicly each year the Submission Period and the place for eligible
shareholders to submit the Proposal in a report on Form 6-K submitted to the
Commission prior to the commencement of the 60 days closed period prior to the
annual ordinary meeting of the Company's shareholders), (iii) only one (1)
matter for consideration at the annual ordinary meeting of the Company's
shareholders shall be allowed in each Proposal, and (iv) the proposing
shareholder shall attend, in person or by a proxy, such annual ordinary meeting
of the Company's shareholders whereat his or her or its Proposal is to be
discussed in the Chinese language and such proposing shareholder, or his or her
or its proxy, shall take part in the discussion of such Proposal in the Chinese
language. For the avoidance of doubt, shareholders shall have no right to
nominate candidates for election as directors at a meeting of the Company's
shareholders pursuant to the Articles of Incorporation of the Company, as in
effect on the date hereof. As the holder of the Deposited Securities, the
Depositary or its nominee is entitled, provided the conditions of ROC law are
satisfied, to submit only one (1) Proposal each year in respect of all of the
Shares held on deposit as of the applicable Shareholder Proposal Record Date.
Holders and Beneficial Owners of ADSs do not under ROC law have individual
rights to submit Proposals to the Company for consideration at the annual
ordinary meeting of the Company's shareholders but may be able to submit
Proposals to the Company for consideration at the annual ordinary meeting of the
Company's shareholders if the Beneficial Owners (i) timely present their ADSs to
the Depositary for cancellation pursuant to the terms of the Deposit Agreement
and become holders of Shares in the ROC prior to the expiration of the
Submission Period and prior to the applicable Shareholder Proposal Record Date,
and (ii) otherwise satisfy the conditions of ROC law applicable to the
submission of Proposals to the Company for consideration at an annual ordinary
meeting of the Company's shareholders. Beneficial Owners of ADSs may not receive
sufficient advance notice of an annual ordinary meeting of the Company's
shareholders to enable the timely withdrawal of Shares to make a Proposal to the
Company and may not be able to re-deposit under the Deposit Agreement the Shares
so withdrawn. The Company has informed the Depositary that a Proposal shall only
be voted upon at the annual ordinary meeting of the Company's shareholders if
the Proposal is accepted by the board of directors of the Company as eligible in
accordance with Article 172-1 of the ROC Company Law and the Company's Articles
of Incorporation for consideration at an annual ordinary meeting of the
Company's shareholders. In addition, the Company has no obligation to give
notice of noncompliance and/or opportunity to cure for any Proposal which fails
to satisfy the requirements and conditions of the ROC laws.
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(b) Single Proposal by Depositary or its Nominee on behalf of
Beneficial Owners. Holders and Beneficial Owners of ADSs do not have individual
proposal rights. The Depositary will, if so requested by (a) Beneficial Owner(s)
as of the applicable ADS Record Date that own(s), individually or as a group, at
least 51% of the ADSs outstanding as of the applicable ADS Record Date (such
Beneficial Owner(s), the "Submitting Holder(s)"), submit to the Company for
consideration at the annual ordinary meeting of the Company's shareholders one
(1) Proposal each year, provided that: (i) the Proposal submitted to the
Depositary by the Submitting Holder(s) is in the traditional Chinese language or
in English language along with traditional Chinese translation and does not
exceed 300 traditional Chinese characters (including the reason(s) for the
Proposal, all accompanying supporting statements, and all punctuation marks) in
length and in the case of English proposal, the length and the content of the
proposal shall be determined based on the Chinese translation, (ii) the Proposal
is submitted to the Depositary by the Submitting Holder(s) at least two (2)
Business Days prior to the expiration of the Submission Period, (iii) the
Proposal is accompanied by a written certificate signed by each Submitting
Holder, addressed to the Depositary and the Company and in a form satisfactory
to the Depositary and the Company (the "First Proposal Certificate"),
certifying, inter alia, (w) that each Submitting Holder has only certified the
said Proposal, (x) that the Submitting Holder(s) own(s), individually or in the
aggregate, at least 51% of the ADSs outstanding as of the date the Proposal is
submitted by the Submitting Holder(s) to the Depositary (the "Proposal
Submission Date"), (y) if the Proposal Submission Date is (i) on or after the
applicable ADS Record Date, that the Submitting Holder(s) owned at least 51% of
the ADSs outstanding as of the applicable ADS Record Date, and (ii) prior to the
applicable ADS Record Date, that the Submitting Holder(s) will continue to own
at least 51% of the ADSs outstanding as of the applicable ADS Record Date and
will provide the Second Proposal Certificate, as defined below, and (z) the
name(s) and address(es) of the Submitting Holder(s) and the number of ADSs owned
by each Submitting Holder (together with certified evidence of each Submitting
A-35
Holder's ownership of the applicable ADSs as of the Proposal Submission Date, in
the case of (y)(ii) above, and the applicable ADS Record Date, in the case of
(y)(i) above)), (iv) if the Proposal Submission Date is prior to the applicable
ADS Record Date, the Submitting Holder(s) must also provide, within five (5)
Business Days after the applicable ADS Record Date, a second written certificate
signed by each Submitting Holder, addressed to the Depositary and the Company
and in a form satisfactory to the Depositary and the Company (the "Second
Proposal Certificate"), certifying, inter alia, that the Submitting Holder(s)
continued to own at least 51% of the ADSs outstanding as of the applicable ADS
Record Date (together with certified evidence of each Submitting Holder's
ownership of the applicable ADSs as of such applicable ADS Record Date), (v) the
Proposal is accompanied by a joint and several irrevocable undertaking of all
Submitting Holders (which undertaking may be contained in the First Proposal
Certificate or the Second Proposal Certificate) that each such Submitting Holder
shall pay all fees and expenses incurred in relation to the submission of the
Proposal for voting at the annual ordinary meeting of the Company's shareholders
(including, but not limited to, the costs and expenses of the Submitting
Holder(s), or his, her, its or their representative, to attend the annual
ordinary meeting of the Company's shareholders), (vi) the Shares registered in
the name of the Depositary or its nominee as representative of the Holders and
Beneficial Owners constitute one percent (1%) or more of the total issued and
outstanding Shares (including the treasury Shares) of the Company as of the
Shareholder Proposal Record Date, (vii) such Proposal contains only one (1)
matter for consideration at the annual ordinary meeting of the Company's
shareholders, and (viii) the Submitting Holder(s), or his, her, its or their
representative, attend(s) the annual ordinary meeting of the Company's
shareholders and take(s) part in the discussions of the Proposal in the Chinese
language, provided further that only one (1) individual may attend, and take
part in the discussion of the Proposal at such annual ordinary meeting on behalf
of all Submitting Holders. Each Beneficial Owner hereby agrees and acknowledges
that (i) if the Submitting Holder(s), or his, her, its or their representative,
does not attend the annual ordinary meeting of the Company's shareholders, the
chairman of such meeting may ask the attending shareholders to discuss, or not
discuss, the Proposal, and (ii) in no event shall a Submitting Holder's, or his,
her, its or their representative's, presence at an annual ordinary meeting of
the Company's shareholders entitle such Submitting Holder(s), or his, her, its
or their representative, to vote the Shares represented by such Submitting
Holder's ADSs (or any other ADSs) or to vote the Shares represented by all the
outstanding ADSs at such annual ordinary meeting of the Company's shareholders.
Upon the timely receipt by the Depositary of any Proposal which the
Depositary reasonably believes to be in full compliance with the immediately
preceding paragraph, the Depositary shall submit a copy of such Proposal and of
the other materials received from the Submitting Holder(s) to the Company during
A-36
the Submission Period. Any Proposal so submitted as to which the Depositary has
not received within five (5) Business Days after the applicable ADS Record Date
any Second Proposal Certificate required under the immediately preceding
paragraph shall be deemed irrevocably withdrawn at the expiration of such five
(5) Business Day period. In the event the Depositary receives more than one (1)
Proposal by a Submitting Holder, or a group of Submitting Holders, each of which
appears to satisfy the requirements set forth in the immediately preceding
paragraph, the Depositary is hereby authorized and instructed to disregard all
Proposals, except for the first Proposal, received by the Depositary from such
Submitting Holder(s) and shall submit only the first of such Proposals to the
Company for consideration at the annual ordinary meeting of the Company's
shareholders in accordance with the terms of the Deposit Agreement. The
Depositary shall not have any obligation to verify the accuracy of the
information contained in any document submitted to it by the Submitting
Holder(s). Neither the Depositary nor its nominee shall be obligated to attend
and speak at the annual ordinary meeting of the Company's shareholders on behalf
of the Submitting Holder(s). The Proposal submitted by the Depositary is still
subject to review by the board of directors of the Company and there is no
assurance that the Proposal will be accepted by the board of directors and will
be included in the agenda of the ordinary shareholders' meeting. In addition, if
the Company determines that, at the discretion of the Company, the Proposal
submitted by the Depositary does not qualify, the Company has no obligation to
notify the Depositary or to allow the Depositary to modify such Proposal.
Notwithstanding anything contained in the Deposit Agreement or any
ADR and except that the Depositary shall arrange, at the request of the Company
and at the Company's expense, for the mailing to Holders of copies of materials
that the Company has made available to the Depositary for such purpose, the
Depositary shall not be obligated to provide to the Holders or Beneficial Owners
of ADSs any notices relating to the proposal rights, including, without
limitation, notice of the Submission Period, or the receipt of any Proposal(s)
from Submitting Holders, or of the holdings of any ADSs by any persons, except
that the Depositary shall, upon a Holder's request, inform such Holder of the
total number of ADSs then issued and outstanding.
A-37
(ASSIGNMENT AND TRANSFER SIGNATURE LINES)
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto ____________________ whose taxpayer identification number is
_____________________ and whose address including postal zip code is
__________________________ the within Receipt and all rights thereunder, hereby
irrevocably constituting and appointing _______________ ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
Dated:
Name:
--------------------
By:
Title:
NOTICE: The signature of the Holder to this assignment
must correspond with the name as written upon the face
of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
If the endorsement be executed by an attorney, executor,
administrator, trustee or guardian, the person executing
the endorsement must give his/her full title in such
capacity and proper evidence of authority to act in such
capacity, if not on file with the Depositary, must be
forwarded with this Receipt.
All endorsements or assignments of Receipts must be
guaranteed by a member of a Medallion Signature Program
approved by the Securities Transfer Association, Inc.
SIGNATURE GUARANTEED