EXECUTION COPY
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
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▇▇▇▇▇▇ Export Processing Zone,
▇▇▇▇▇▇ Kaohsiung,
Taiwan, Republic of China
As of February 1, 2001
Citibank, N.A. - ADR Department
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Exchange of Rule 144A GDSs (CUSIP #00756 M 107) for ADSs
(CUSIP # 00756 M 404)
Ladies and Gentlemen:
Reference is made to (i) the Amended and Restated Deposit Agreement,
dated as of September 29, 2000 (the "Deposit Agreement"), by and among Advanced
Semiconductor Engineering, Inc., a company incorporated 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
("Citibank"), acting in its capacity as ADR Depositary (Citibank acting in such
capacity, the "Depositary"), and all Holders and Beneficial Owners of American
Depositary Shares ("ADSs") evidenced by American Depositary Receipts ("ADRs")
issued thereunder, and (ii) the Deposit Agreement, dated as of July 13, 1995, as
amended by Amendment No. 1 to Deposit Agreement, dated November 30, 1998 (the
Deposit Agreement as so amended, the "GDS Deposit Agreement"), by and between
the Company, Citibank, as GDS Depositary (Citibank acting in such capacity, the
"GDS Depositary"), and (x) all Holders and Beneficial Owners of Rule 144A Global
Depositary Shares, on the one hand, and (y) the Holders and Beneficial Owners of
International Global Depositary Shares, on the other hand. All capitalized terms
used, but not otherwise defined, herein shall have the meaning given to such
terms in the Deposit Agreement.
The Company hereby irrevocably instructs the GDS Depositary to
terminate the Rule 144A depositary receipts facility (the "Rule 144A Depositary
Receipts Facility") established and currently existing pursuant to the GDS
Deposit Agreement for the Rule 144A Global Depositary Shares bearing CUSIP #
00756 M 107 (such Rule 144A Global Depositary Shares, the "Rule 144A GDSs") upon
the terms of Paragraph 27 of the Provisions of the Global Depositary Receipts
attached as Annex A to the GDS Deposit Agreement and to refuse any deposits of
Shares thereunder. As contemplated in the Deposit Agreement and notwithstanding
the terms of the GDS Deposit Agreement, the Company requests that Citibank, in
its capacity as Depositary and as GDS Depositary, establish procedures upon the
terms and conditions set forth herein to enable holders and beneficial owners of
Rule 144A GDSs, who have not prior to the date hereof exchanged their Rule 144A
GDSs in exchange for ADSs pursuant to the Company's registered exchange offer
(pursuant to the Exchange Offer Prospectus filed with the Securities and
Exchange Commission under cover of Registration Statement on Form F-4, Reg. No.
333-44636), to surrender such Rule 144A GDSs at any time prior to March 30, 2001
in exchange for ADSs issued under the terms of the Deposit Agreement. The
purpose and intent of this letter agreement is to supplement the Deposit
Agreement for the sole purpose of accommodating the surrender of the Rule 144A
GDSs, the issuance of ADSs, and the delivery of ADRs in the context of the
termination (the "Termination") of the Rule 144A Depositary Receipts Facility.
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Company and the Depositary hereby agree as
follows:
1. Depositary Procedures. Citibank, in its capacity as Depositary
and GDS Depositary, agrees, upon the instructions of the Company contained
herein, to establish all necessary procedures to enable the surrender of Rule
144A GDSs to the GDS Depositary in connection with the Termination in order to
enable the issuance by the Depositary of ADSs to the persons surrendering the
Rule 144A GDSs upon the terms described herein.
In order to effectuate the foregoing, the Company hereby instructs
(i) Citibank, in its capacity as Depositary and as GDS Depositary, to distribute
on or after February 2, 2001 to participants in DTC who hold Rule 144A GDSs in
their DTC accounts, a Notice of Termination of Rule 144A GDR Facility
substantially in the form of the draft thereof attached hereto as Exhibit A,
(ii) the GDS Depositary (a) to accept Rule 144A GDSs validly surrendered to it
for purposes of receiving ADSs until March 30, 2001, and (b) to cancel such Rule
144A GDSs and to deliver the Shares represented by such Rule 144A GDSs into the
custodial account established by the Depositary to accept Shares under the terms
of the ADR facility established pursuant to the Deposit Agreement, in each case
only upon the timely receipt of the applicable duly completed and signed
Exchange Certification substantially in the form of the draft thereof attached
as Exhibit B (the "Exchange Certification"), and (iii) the Depositary to issue
in the name of, and deliver to, the persons who (a) validly surrendered Rule
144A GDSs to the GDS Depositary, and (b) timely delivered to the GDS Depositary
the applicable duly completed and signed Exchange Certification, ADSs, that
represent the number of Shares transferred on behalf of such persons from the
custodial account of the Rule 144A Depositary Receipts Facility to the custodial
account containing the Shares accepted for deposit in respect of the ADR
Facility under the terms of the Deposit Agreement.
2. Company Assistance. The Company agrees to (i) assist the
Depositary in the establishment of the procedures described above and the
issuance of such ADSs, and (ii) take all commercially reasonable steps necessary
and reasonably satisfactory to the Depositary to ensure that such procedures and
the issuance of such ADSs do not violate the provisions of the Securities Act,
the Exchange Act or any other applicable U.S. laws. In furtherance of the
foregoing, the Company shall cause its U.S. counsel to deliver an opinion
addressed to the Depositary stating, inter alia, that (i) all Shares represented
by Rule 144A GDSs presented to the GDS Depositary in accordance with the tems
hereof may be transferred by the holders of such Rule 144A GDSs without the need
for registration under the Securities Act, (ii) ADSs delivered by the Depositary
under the terms hereof and the Shares represented thereby may be transferred
pursuant to Rule 144(k) of the Securities Act by the holders of Rule 144A GDSs
surrendered to the GDS Depositary under the terms hereof; and (iii) the Shares
received for deposit pursuant to the terms hereof and the ADSs issued in respect
thereof will not be deemed "restricted securities" (as defined in Rule 144 under
the Securities Act) provided they are not held by the Company or any of its
Affiliates.
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3. Representations, Warranties and Agreements of the Company. The
Company hereby represents and warrants to the Depositary that (a) neither it nor
any of its Affiliates (as defined in the Deposit Agreement and hereinafter used
as so defined) has at any time in the two-year period preceding the date hereof
deposited, or will at any time hereafter deposit, any Shares into (x) the Rule
144A Depositary Receipts Facility, except for deposits by the Company of Shares
in connection with the distribution of Share dividends, (b) neither it nor any
of its Affiliates currently owns, or has at any time in the two-year period
preceding the date hereof owned, any Rule 144A GDSs; (c) neither it nor any
entity controlled by it will at any time after the date hereof purchase or
otherwise beneficially own or acquire, directly or indirectly, any Rule 144A
GDSs; and (d) upon reasonable inquiry (with the assistance of its U.S. counsel)
into the facts and circumstances surrounding the Rule 144A Depositary Receipts
Facility, it believes that the resale and transfer restrictions applicable to
the Rule 144A GDSs will not be needed after the date hereof. For the purpose of
this letter agreement "control" means the possession, direct or indirect, of the
power to direct or cause the direction of mangement and policies of a person,
whether through the ownership of voting securities, by contract or otherwise.
4. Indemnity. The Company agrees to indemnify and hold harmless (i)
the Depositary, the Custodian and their respective officers, directors,
employees, agents and Affiliates, and (ii) the GDS Depositary, the custodian
appointed under the GDS Deposit Agreement and their respective officers,
directors and employees for any liability, loss, expense (including without
limitation, the reasonable fees and expenses of counsel) incurred as a result
of, or in connection with, (x) the acceptance and cancellation of Rule 144A
GDSs, as applicable, the acceptance of Shares for deposit, the issuance of ADSs
and the delivery of ADRs, in each case upon the terms set forth herein, except
to the extent of their own gross negligence or willful misconduct in performing
such acts or omitting to perform such acts, (y) any other acts performed or
omitted by the GDS Depositary or the Depositary as contemplated by this letter
agreement, except to the extent of their own gross negligence or willful
misconduct in performing such acts or omitting to perform such acts, or (z) its
reliance on any information contained herein or acting upon any instructions set
forth in or contemplated in this letter agreement.
This letter agreement shall be interpreted under, and all rights
hereunder shall be governed by, the laws of the State of New York without regard
to the principles of conflicts of law thereof.
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The Company and the Citibank have caused this letter agreement to be
executed and delivered on their behalf by their respective officers thereunto
duly authorized as of the date set forth above.
ADVANCED SEMICONDUCTOR
ENGINEERING, INC.
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇
Title: Chairman
Date: February 1, 2001
CITIBANK, N.A.,
as Depositary and GDS Depositary
By: /s/ ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Date: February 1, 2001
EXHIBITS
A Notice of Termination
B Exchange Certification
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EXHIBIT A
to
Letter Agreement, dated as of February 1, 2001,
by and between
Advanced Semiconductor Engineering, Inc. and Citibank, N.A., as Depositary
and GDS Depositary
____________________________________________
NOTICE OF TERMINATION
____________________________________________
Please refer to the form of Notice of Termination attached hereto.
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NOTICE OF TERMINATION OF RULE 144A GDR FACILITY
TO THE HOLDERS AND BENEFICIAL OWNERS OF
RULE 144A GLOBAL DEPOSITARY RECEIPTS ("GDRs")
EVIDENCING RULE 144A GLOBAL DEPOSITARY SHARES ("GDSs")
REPRESENTING THE DEPOSITED SECURITIES.
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COMPANY: Advanced Semiconductor Engineering, Inc.("ASE")
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DEPOSITARY: CITIBANK, N.A.
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DEPOSIT AGREEMENT: Deposit Agreement, dated as of July 13, 1995, as
amended by Amendment No. 1 to Deposit Agreement, dated
as of November 30, 1998, by and between the Company
and the Depositary and all Holders and Beneficial
Owners of Rule 144A GDRs evidencing Rule 144A GDSs
issued thereunder. Capitalized terms used but not
otherwise defined herein shall have the meaning given
to such terms in the Deposit Agreement.
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DEPOSITED SECURITIES: Shares of Common Stock of ASE.
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GDS CUSIP NO.: 00756 M 107
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GDS RATIO: One (1) Rule 144A GDS: Five (5) Shares of Common
Stock.
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TERMINATION DATE: March 30, 2001.
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ASE has directed the Depositary to terminate the Deposit Agreement
for the Rule 144A GDR Facility. In accordance with the terms of the Deposit
Agreement, the Deposit Agreement will terminate as of the Termination Date.
Holders and Beneficial Owners of Rule 144A GDSs are requested to arrange for the
surrender of their Rule 144A GDSs and the withdrawal of Deposited Securities.
Please note that, as contemplated in the Deposit Agreement, Holders and
Beneficial Owners presenting Rule 144A GDSs for cancellation and withdrawal of
Deposited Securities will be required by the Depositary to complete and sign a
certification and agreement upon the terms set forth in the Deposit Agreement.
As provided in the Deposit Agreement, if any Rule 144A GDSs remain
outstanding after the Termination Date, the Depositary shall discontinue the
registration of transfer of the Rule 144A GDRs, shall suspend the distribution
of dividends to the Holders of the Rule 144A GDSs, shall not accept any deposits
of shares (and shall instruct the custodian for the Deposited Securities
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accordingly) 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 the Deposited
Securities, shall sell property and rights and convert Deposited Securities into
cash as provided in the Deposit Agreement and shall continue to deliver
Deposited Securities (in all cases without liability for taxes and after
deduction of expenses).
ASE and Citibank, N.A. have, pursuant to an Amended and Restated
Deposit Agreement, dated as of September 29, 2000 (the "New Deposit Agreement"),
established a new Depositary Receipts facility for American Depositary Shares
listed on the New York Stock Exchange (CUSIP 00756 M 404). At ASE's request and
direction, the Depositary has agreed to make available a means for holders of
Rule 144A GDSs (CUSIP 00756 M 107) who have not previously tendered their Rule
144A GDSs in the Company's exchange offer to surrender such Rule 144A GDSs to
the Depositary prior to March 30, 2001 and to receive in return American
Depositary Shares issued under the terms of the New Deposit Agreement. A draft
of the New Deposit Agreement has been filed with the Securities and Exchange
Commission under cover of a Registration Statement on Form F-6 (Reg. No.
333-12468).
If you wish to receive American Depositary Shares upon the terms
described above, you will need to deliver (i) your Rule 144A GDSs and (ii) a
completed and signed Exchange Certification to the Depositary in each case prior
to March 30, 2001. A copy of the Exchange Certification is enclosed.
Please further note that, as provided in Paragraph 27 of the
Provisions of the Global Depositary Receipts attached as Exhibit A to the
Deposit Agreement, after October 1, 2001, the Depositary may, and intends to,
sell the Deposited Securities held by or for the Depositary and may thereafter
hold the net proceeds of any such sale, together with any other cash then held
by it under the Deposit Agreement, unsegregated and without liability for
interest, for the pro rata benefit of the Holders of the Rule 144A GDSs not
theretofore surrendered. After such sale, the Depositary shall be discharged
from all obligations to Holders and Beneficial Owners of Rule 144A GDSs under
the Deposit Agreement, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case the fees of the
Depositary for the surrender of Rule 144A GDSs, 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).
If you have any questions about the above termination, please call
Citibank, N.A. at 1-877-CITI-ADR (▇-▇▇▇-▇▇▇-▇▇▇▇).
Citibank, N.A., as GDR Depositary
February 2, 2001
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EXHIBIT B
To
Letter Agreement, dated as of February 1, 2001,
by and between
Advanced Semiconductor Engineering, Inc. and Citibank, N.A., as Depositary
and GDS Depositary
____________________________________________
EXCHANGE CERTIFICATION
____________________________________________
Please refer to the form of Exchange Certification attached hereto.
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EXCHANGE CERTIFICATION
Citibank, N.A. - ADR Department
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Advanced Semiconductor Engineering, Inc.
Reference is hereby made to the Notice of Termination of Rule 144A
GDR Facility, dated February 2, 2001 (the "Notice of Termination"), pursuant to
which Citibank, N.A., as Rule 144A GDR Depositary, informed the Holders and
Beneficial Owners of Rule 144A GDRs evidencing Rule 144A GDSs, CUSIP #00756 M
107 (the "Rule 144A GDSs"), that Advanced Semiconductor Engineering, Inc. (the
"Company") has instructed it to terminate the Depositary Receipts facility for
the Rule 144A GDSs created pursuant to the terms of the Deposit Agreement, dated
as of July 13, 1995, as amended (the "Deposit Agreement"). All capitalized terms
used, but not otherwise defined, herein shall have the meaning given to such
terms in the Deposit Agreement.
As noted in the Notice of Termination, the Company and Citibank,
N.A. have entered into an Amended and Restated Deposit Agreement, dated as of
September 29, 2000 (the "New Deposit Agreement") pursuant to the terms of which
a new Depositary Receipts facility has been created, the American Depositary
Shares of which are listed for trading on The New York Stock Exchange, Inc.
1. We are hereby surrendering Rule 144A GDSs (CUSIP #00756 M 107) to
the Rule 144A GDR Depositary in order to receive American Depositary Shares
("ADSs") issued under the terms of the New Deposit Agreement (CUSIP # 00756 M
404).
2. We certify for the benefit of the Company and Citibank, N.A.
that:
a. We are the beneficial owners of the Rule 144A GDSs being
surrendered and will be the beneficial owners of the ADSs that are to be
delivered to us; and
b. The Rule 144A GDSs are being surrendered to the Depositary
free and clear of any liens, encumbrances, security interests, charges,
mortgages or adverse claims and such Rule 144A GDSs have not been stripped of
any rights or entitlements; and
c. We are not, as of the date hereof, an "Affiliate" (as such
term is defined in Regulation C of the Securities Act and hereinafter used as so
defined) of the Company and we have not been an Affiliate of the Company at any
time during the three months preceding the date hereof; and
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d. We are either (i) a Qualified Institutional Buyer (as
defined in Rule 144A under the Securities Act), or (ii) a person other than a
"U.S. person" located outside the United States (within the meaning of
Regulation S under the Securities Act); and
e. We have not purchased the Rule 144A GDSs from the Company
or, to the best of our knowledge, from any Affiliate of the Company in the
two-year period immediately preceding the date hereof except for Rule 144A GDSs
received as part of a stock dividend; and
f. We are not aware of any facts or circumstances that would
prohibit our free transfer of the ADSs to be delivered to us or of the Shares
represented thereby; and
3. We agree to indemnify and hold harmless Citibank, N.A., the
Company and their respective officers, directors, employees, agents and
Affiliates for any liability, loss or expense they may incur (including, without
limitation, reasonable fees and expenses of counsel) as a result of any
inaccuracy of any information or of any certification provided by us herein, or
as a result of our breach of any agreement or undertaking herein or in the
Deposit Agreement.
Number of Rule 144A GDSs being delivered:_______________________________
(CUSIP #00756 M 107)
DTC Transaction Code: ___________________
Name of Beneficial Owner:________________
By:______________________________________
Name:____________________________________
Title:___________________________________
Address:_________________________________
_________________________________
Daytime Telephone Number:________________
Taxpayer ID #:___________________________
Date:____________________________________
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