EXHIBIT 4.1
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CHUNGHWA TELECOM CO., LTD.
AND
THE BANK OF NEW YORK
As Depositary
AND
HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY
RECEIPTS
Deposit Agreement
Dated as of _______________, 2003
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DEPOSIT AGREEMENT
DEPOSIT AGREEMENT dated as of _____________, 2003 among CHUNGHWA
TELECOM CO., LTD., a company incorporated under the laws of the Republic of
China (herein called the "Company"), THE BANK OF NEW YORK, a New York banking
corporation (herein called the "Depositary"), and all Holders and Beneficial
Owners from time to time of American Depositary Receipts issued hereunder.
W I T N E S S E T H :
WHEREAS, the Company desires to provide, as hereinafter set forth in
this Deposit Agreement, for the deposit of Shares (as hereinafter defined) of
the Company from time to time with the Depositary or with the Custodian (as
hereinafter defined) as agent of the Depositary for the purposes set forth in
this Deposit Agreement, for the creation of American Depositary Shares
representing the Shares so deposited and for the execution and delivery of
American Depositary Receipts evidencing the American Depositary Shares; and
WHEREAS, the American Depositary Receipts (as hereinafter defined) are
to be substantially in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement;
NOW, THEREFORE, in consideration of the premises, it is agreed by and
between the parties hereto as follows:
ARTICLE 1. DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated, apply to the respective terms used in this Deposit Agreement:
SECTION 1.01 American Depositary Shares; ADSs.
The terms "American Depositary Shares" or "ADSs" shall mean the
securities representing the interests in the Deposited Securities (as
hereinafter defined) and evidenced by the Receipts issued hereunder and shall
include Temporary ADSs unless the context otherwise requires. Each American
Depositary Share shall represent the number of Shares specified on Exhibit A
annexed hereto, until there shall occur a distribution upon Deposited Securities
covered by Section 4.03 or a change in Deposited Securities covered by Section
4.08 with respect to which additional Receipts are not executed and delivered,
and thereafter American Depositary Shares shall evidence the amount of Shares or
Deposited Securities specified in such Sections.
SECTION 1.02 Beneficial Owner.
The term "Beneficial Owner" shall mean each person owning from time to
time any beneficial interest in the American Depositary Shares evidenced by any
Receipt.
SECTION 1.03 Certificate of Payment.
The term "Certificate of Payment" shall mean the Certificate of
Payment, which may be delivered by the Company from time to time, evidencing the
irrevocable right to receive definitive share certificates representing the
Shares delivered by or on behalf of the Company in connection with an offering
of Shares by the Company and registered in the name of the Depositary. The
Company shall instruct the Depositary in writing whenever such an offering
occurs, the Shares of which may be evidenced by Certificates of Payment.
SECTION 1.04 Commission.
The term "Commission" shall mean the Securities and Exchange
Commission of the United States or any successor governmental agency in the
United States.
SECTION 1.05 Company.
The term "Company" shall mean Chunghwa Telecom Co., Ltd., a company
limited by shares organized under the laws of the R.O.C., and its successors.
SECTION 1.06 Custodian.
The term "Custodian" shall mean Taipei, Taiwan office of the
International Commerce Bank of China, a bank organized under the laws of the
R.O.C., as agent of the Depositary for the purposes of this Deposit Agreement,
and any other firm or corporation which may hereafter be appointed by the
Depositary pursuant to the terms of Section 5.05, as substitute or additional
custodian or custodians hereunder, as the context shall require and shall also
mean all of them collectively.
SECTION 1.07 Deliver, Deposit, Surrender, Transfer or Withdrawal.
The terms "deliver", "deposit", "surrender", "transfer" or "withdraw",
when used (i) with respect to Shares: (a) in the case of book-entry Shares,
shall refer to an entry or entries in an account or accounts maintained by
institutions authorized under applicable law to effect transfers of securities,
or (b) in the case of certificated Shares, to the physical delivery, deposit,
withdrawal or transfer of certificates representing the Shares and (ii) with
respect to American Depositary Shares evidenced by Receipts, (a) in the case of
American Depositary Shares available in book-entry form, shall refer to
appropriate adjustments in the records maintained by (1) the Depositary, (2) The
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Depository Trust Company ("DTC") or its nominee, or (3) institutions that have
accounts with DTC, as applicable, or (b) otherwise, shall refer to the physical
delivery, deposit, surrender, transfer or withdrawal of such American Depositary
Shares evidenced by Receipts.
SECTION 1.08 Deposit Agreement.
The term "Deposit Agreement" shall mean this Agreement, as the same
may be amended from time to time in accordance with the provisions hereof.
SECTION 1.09 Depositary; Corporate Trust Office.
The term "Depositary" shall mean The Bank of New York, a New York
banking corporation, and any successor as depositary hereunder. The term
"Corporate Trust Office", when used with respect to the Depositary, shall mean
the office of the Depositary which at the date of this Agreement is 101 Barclay
Street, New York, New York 10286.
SECTION 1.10 Deposited Securities.
The term "Deposited Securities" as of any time shall mean Shares at
such time deposited or deemed to be deposited under this Deposit Agreement and
any and all other securities, property and cash received by the Depositary or
the Custodian in respect thereof and at such time held hereunder, subject as to
cash to the provisions of Section 4.05.
SECTION 1.11 Dollars; NT$ or NT Dollars
The term "US$" or "Dollars" shall mean United States dollars. The term
"NT$" or "NT Dollars" shall mean New Taiwan Dollars.
SECTION 1.12 Foreign Registrar.
The term "Foreign Registrar" shall mean the entity that presently
carries out the duties of registrar for the Shares or any successor as registrar
for the Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
SECTION 1.13 Holder.
The term "Holder" shall mean the person in whose name a Receipt is
registered on the books of the Depositary maintained for such purpose.
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SECTION 1.14 Receipts; ADRs.
The terms "Receipts" or "ADRs" shall mean the American Depositary
Receipts issued hereunder evidencing American Depositary Shares and shall
include Temporary ADRs unless the context requires otherwise.
SECTION 1.15 Registrar.
The term "Registrar" shall mean any bank or trust company having an
office in the Borough of Manhattan, The City of New York, which shall be
appointed by the Depositary to register Receipts and transfers of Receipts as
herein provided.
SECTION 1.16 Restricted Securities.
The term "Restricted Securities" shall mean Shares, or Receipts
representing such Shares, which are acquired directly or indirectly from the
Company or its affiliates (as defined in Rule 144 under the Securities Act of
1933) in a transaction or chain of transactions not involving any public
offering or which are subject to resale limitations under Regulation D under
that Act or both, or which are held by an officer, director (or persons
performing similar functions) or other affiliate of the Company, or which would
require registration under the Securities Act in connection with the offer and
sale thereof in the United States, or which are subject to other restrictions on
sale or deposit under the laws of the United States or the R.O.C., or under a
shareholder agreement or the Articles of Incorporation of the Company.
SECTION 1.17 R.O.C. or Taiwan.
The terms "R.O.C." or "Taiwan" shall mean the Republic of China.
SECTION 1.18 Securities Act of 1933.
The term "Securities Act of 1933" shall mean the United States
Securities Act of 1933, as from time to time amended.
SECTION 1.19 Shares.
The term "Shares" shall mean common shares of the Company, heretofore
validly issued and outstanding and fully paid, nonassessable and free of any
pre-emptive rights of the holders of outstanding Shares or hereafter validly
issued and outstanding and fully paid, nonassessable and free of any pre-emptive
rights of the holders of outstanding Shares.
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SECTION 1.20 Temporary ADRs.
The term "Temporary ADRs", as defined in Section 2.10, shall mean the
Temporary American Depositary Receipts issued hereunder evidencing Temporary
ADSs.
SECTION 1.21 Temporary ADSs.
The term "Temporary ADSs", as defined in Section 2.10, shall mean the
securities representing interests in Certificates of Payment.
ARTICLE 2. FORM OF RECEIPTS, DEPOSIT OF SHARES, EXECUTION AND DELIVERY, TRANSFER
AND SURRENDER OF RECEIPTS
SECTION 2.01 Form and Transferability of Receipts.
Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement with appropriate insertions,
modifications and omissions, as hereinafter provided. No Receipt shall be
entitled to any benefits under this Deposit Agreement or be valid or obligatory
for any purpose, unless such Receipt shall have been executed by the Depositary
by the manual signature of a duly authorized signatory of the Depositary;
provided, however, that such signature may be a facsimile if a Registrar for the
Receipts shall have been appointed and such Receipts are countersigned by the
manual signature of a duly authorized officer of the Registrar. The Depositary
shall maintain books on which each Receipt so executed and delivered as
hereinafter provided and the transfer of each such Receipt shall be registered.
Receipts bearing the manual or facsimile signature of a duly authorized
signatory of the Depositary who was at any time a proper signatory of the
Depositary shall bind the Depositary, notwithstanding that such signatory has
ceased to hold such office prior to the execution and delivery of such Receipts
by the Registrar or did not hold such office on the date of issuance of such
Receipts. Notwithstanding anything herein to the contrary, the Depositary shall
not issue Temporary ADRs in physical certificated form and Holders of Temporary
ADRs shall not be entitled to receive definitive Temporary ADRs, except as may
be required by any book-entry settlement system in which the Temporary ADSs are
accepted for settlement.
On or before the date which is three months from the date of an
offering of Shares, each Temporary ADR representing an interest in a Certificate
of Payment shall bear the following legend:
PURSUANT TO THE LAWS OF THE REPUBLIC OF CHINA, THE TEMPORARY AMERICAN DEPOSITARY
SHARES REPRESENTING CERTIFICATES OF PAYMENT EVIDENCED BY THIS TEMPORARY
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AMERICAN DEPOSITARY RECEIPT MAY NOT BE SURRENDERED PURSUANT TO SECTION 2.05 OF
THE DEPOSIT AGREEMENT, AND SHARES, INCLUDING EVIDENCES OF THE RIGHT TO RECEIVE
SHARES, MAY NOT BE WITHDRAWN. ON THE DATE WHICH IS THREE MONTHS FROM THE DATE OF
THE OFFERING OF SHARES IN CONNECTION WITH WHICH THIS TEMPORARY AMERICAN
DEPOSITARY RECEIPT REPRESENTING AN INTEREST IN A CERTIFICATE OF PAYMENT WAS
ISSUED, AND AFTER RECEIPT BY THE CUSTODIAN OF CERTIFICATES REPRESENTING COMMON
SHARES, AND ALL TIMES SUBSEQUENT THERETO, HOLDERS AND BENEFICIAL OWNERS OF THIS
TEMPORARY ADR SHALL THEREAFTER BE HOLDERS AND BENEFICIAL OWNERS OF AMERICAN
DEPOSITARY RECEIPTS ("ADRS") ISSUED HEREUNDER AND SHALL HAVE ALL OF THE RIGHTS
AND OBLIGATIONS SET FORTH UNDER THIS DEPOSIT AGREEMENT AND THE ADRS.
TEMPORARY ADRS REPRESENTING CERTIFICATES OF PAYMENT AND THE TEMPORARY ADSS
EVIDENCED THEREBY ARE IDENTICAL TO AND CONFER ALL OF THE RIGHTS AND OBLIGATIONS
SET FORTH IN THE DEPOSIT AGREEMENT RELATING TO RECEIPTS AND AMERICAN DEPOSITARY
SHARES EVIDENCED THEREBY; PROVIDED, HOWEVER, THAT (1) HOLDERS OF TEMPORARY ADRS
REPRESENTING CERTIFICATES OF PAYMENT WILL NOT BE ABLE TO SURRENDER SUCH
TEMPORARY ADRS FOR THE PURPOSE OF WITHDRAWAL OF THE UNDERLYING DEPOSITED
SECURITIES AND (2) TEMPORARY ADRS SHALL BEAR ONE OR MORE SEPARATE CUSIP NUMBERS
THAT IS DIFFERENT FROM ANY CUSIP NUMBER THAT IS OR MAY BE ASSIGNED TO THE ADRS.
In addition to the foregoing, the Receipts may be endorsed with or
have incorporated in the text thereof such legends or recitals or modifications
not inconsistent with the provisions of this Deposit Agreement as may be
required by the Depositary or required to comply with any applicable law or
regulations thereunder or with the rules and regulations of any securities
exchange upon which American Depositary Shares may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of the date
of issuance of the underlying Deposited Securities or otherwise.
Title to a Receipt (and to the American Depositary Shares evidenced
thereby), when properly endorsed or accompanied by proper instruments of
transfer, shall be transferable by delivery with the same effect as in the case
of a negotiable instrument under the laws of the State of New York; provided,
however, that the Depositary, notwithstanding any notice to the contrary, may
treat the Holder thereof as the absolute owner thereof for the purpose of
determining the person entitled to distribution of
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dividends or other distributions or to any notice provided for in this Deposit
Agreement and for all other purposes.
SECTION 2.02 Deposit of Shares.
The deposit of Shares in connection with an offering of Shares will be
made on behalf of the Company by delivery to the Custodian on behalf of the
Depositary of a Certificate of Payment, in form and substance satisfactory to
the Depositary, evidencing the irrevocable right to receive physical share
certificates representing Shares registered in the name of the Depositary or its
nominee. The Company agrees to issue and deliver the physical share certificates
represented by such Certificate of Payment in respect of such deposit on or
before three months from the date of issuance of such Shares pursuant to the
applicable offering.
Subject to the limitations on the issuance of additional ADSs
described below, and subject terms and conditions of this Deposit Agreement,
Shares or evidence of rights to receive Shares may be deposited by delivery
thereof to any Custodian hereunder, accompanied by any appropriate instrument or
instruments of transfer, or endorsement, in form satisfactory to the Custodian,
together with all such certifications as may be required by the Depositary or
the Custodian in accordance with the provisions of this Deposit Agreement, and,
if the Depositary requires, together with a written order directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order, a Receipt or Receipts for the number of
American Depositary Shares representing such deposit. No Share shall be accepted
for deposit unless accompanied by evidence reasonably satisfactory to the
Depositary (which may be an opinion of counsel) that any necessary approval has
been granted by any governmental body in the R.O.C. If required by the
Depositary, Shares presented for deposit at any time, whether or not the
transfer books of the Company or the Foreign Registrar, if applicable, are
closed, shall also be accompanied by an agreement or assignment, or other
instrument satisfactory to the Depositary, which will provide for the prompt
transfer to the Custodian of any dividend, or right to subscribe for additional
Shares or to receive other property which any person in whose name the Shares
are or have been recorded may thereafter receive upon or in respect of such
deposited Shares, or in lieu thereof, such agreement of indemnity or other
agreement as shall be satisfactory to the Depositary.
The Depositary and the Company have been advised that under current
R.O.C. law, no deposits of Shares may be made in the depositary receipt
facility, and no ADSs may be issues against such deposits, without specific
approval of the R.O.C. Securities and Futures Commission (the "SFC") except in
connection with the offering and the issuance of additional ADSs in connection
with (i) dividends on or free distributions of Shares, (ii) the exercise by
Holders of their pre-emptive rights applicable to Shares evidenced by ADSs in
the event of capital increases for cash or (iii) as permitted hereunder, the
purchase directly by any person or through the Depositary of
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Shares on the Taiwan Stock Exchange for deposit in the depositary receipt
facility, provided that the total number of ADSs outstanding after an issuance
described in clause (iii) does not exceed the number of issues ADSs previously
approved by the SFC (plus any ADSs created pursuant to clauses (i) and (ii)
above). The Depositary and the Company have been advised that under current
R.O.C. law, issuances under clause (iii) above will be permitted only to the
extent that previously issued ADSs have been canceled and the Shares withdrawn
from the depositary receipt facility upon cancellation of such ADSs have been
sold on the Taiwan Stock Exchange. The Depositary may not accept any Shares for
deposit pursuant to clause (iii) unless it receives evidence satisfactory (which
may be in the form of opinions of R.O.C. and U.S. counsel) to the effect that
such Shares may lawfully be deposited pursuant to the Deposit Agreement and are
not Restricted Securities. The laws of the R.O.C. applicable to the deposit of
Shares may change from time to time. There can be no assurance that current laws
will continue in effect or that future changes of R.O.C. law will not adversely
affect the ability to deposit Shares hereunder.
The Depositary and the Custodian will each refuse to accept for
deposit Shares or other securities that it reasonably believes to be Restricted
Securities. Persons depositing Shares, other than in connection with an issuance
approved by the SFC or by the Company depositing Shares constituting a free
distribution of Shares by way of dividend or stock split, will be required to
present appropriate evidence (including opinions of counsel if requested)
satisfactory to the Depositary and the Custodian that such Shares and the
issuance of the ADRs evidencing the ADSs issuable upon such deposit are not
Restricted Securities.
At the request and risk and expense of any person proposing to deposit
Shares, and for the account of such person, the Depositary may receive
certificates for Shares to be deposited, together with the other instruments
herein specified, for the purpose of forwarding such Share certificates to the
Custodian for deposit hereunder.
Upon each delivery to a Custodian of a certificate or certificates for
Shares to be deposited hereunder, together with the other documents above
specified, such Custodian shall, as soon as transfer and recordation can be
accomplished, present such certificate or certificates to the Company or the
Foreign Registrar, if applicable, for transfer and recordation of the Shares
being deposited in the name of the Depositary or its nominee or such Custodian
or its nominee.
Deposited Securities shall be held by the Depositary or by a Custodian
for the account and to the order of the Depositary or at such other place or
places as the Depositary shall determine.
SECTION 2.03 Execution and Delivery of Receipts.
Upon receipt by any Custodian of any deposit pursuant to Section 2.02
hereunder (and in addition, if the transfer books of the Company or the Foreign
Registrar,
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if applicable, are open, the Depositary may in its sole discretion require a
proper acknowledgment or other evidence from the Company that any Deposited
Securities have been recorded upon the books of the Company or the Foreign
Registrar, if applicable, in the name of the Depositary or its nominee or such
Custodian or its nominee), together with the other documents required as above
specified, such Custodian shall notify the Depositary of such deposit and the
person or persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares to
be evidenced thereby. Such notification shall be made by letter or, at the
request, risk and expense of the person making the deposit, by cable, telex or
facsimile transmission. Upon receiving such notice from such Custodian, or upon
the receipt of Shares by the Depositary, the Depositary, subject to the terms
and conditions of this Deposit Agreement, shall execute and deliver at its
Corporate Trust Office, to or upon the order of the person or persons entitled
thereto, a Receipt or Receipts, registered in the name or names and evidencing
any authorized number of American Depositary Shares requested by such person or
persons, but only upon payment to the Depositary of the fees and expenses of the
Depositary for the execution and delivery of such Receipt or Receipts as
provided in Section 5.09, and of all taxes and governmental charges and fees
payable in connection with such deposit and the transfer of the Deposited
Securities.
Notwithstanding anything in this Section 2.03 to the contrary, the
Depositary shall execute and deliver Temporary ADRs evidencing Temporary ADSs
only in respect of a deposit of a Certificate of Payment in connection with an
offering of Shares.
SECTION 2.04 Transfer of Receipts; Combination and Split-up of Receipts.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall register transfers of Receipts on its transfer books from time
to time, upon any surrender of a Receipt, by the Holder in person or by a duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer, and duly stamped as may be required by the laws of the State of New
York and of the United States of America. Thereupon the Depositary shall execute
a new Receipt or Receipts and deliver the same to or upon the order of the
person entitled thereto.
The Depositary, subject to the terms and conditions of this Deposit
Agreement, shall upon surrender of a Receipt or Receipts for the purpose of
effecting a split-up or combination of such Receipt or Receipts, execute and
deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as the Receipt or Receipts surrendered.
The Depositary may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts at
designated transfer offices on behalf of the Depositary. In carrying out its
functions, a co-transfer
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agent may require evidence of authority and compliance with applicable laws and
other requirements by Holders or persons entitled to Receipts and will be
entitled to protection and indemnity to the same extent as the Depositary.
SECTION 2.05 Surrender of Receipts and Withdrawal of Shares.
Provided that the Company has delivered to the Custodian physical
share certificates represented by the Certificate of Payment in respect of a
deposit of Shares in connection with an offering, upon surrender at the
Corporate Trust Office of the Depositary of an ADR for the purpose of withdrawal
of the Deposited Securities represented by the ADSs evidenced by such ADR, upon
payment of the fee of the Depositary for the surrender and cancellation of ADRs
as provided in Section 5.09 and payment of all taxes (including any securities
transaction tax) and governmental charges payable in connection with such
surrender and withdrawal of the Deposited Securities, and subject to the terms
and conditions of this Deposit Agreement and the transfer restrictions
applicable to the Shares, if any, the Holder of such Receipt shall be entitled
to delivery, to him or upon his order, of the amount of Deposited Securities at
the time represented by the American Depositary Shares evidenced by such
Receipt. Delivery of such Deposited Securities may be made by the delivery of
(a) certificates in the name of such Holder or as ordered by him or certificates
properly endorsed or accompanied by proper instruments of transfer to such
Holder or as ordered by him and (b) any other securities, property and cash to
which such Holder is then entitled in respect of such Receipts to such Holder or
as ordered by him. Such delivery shall be made, as hereinafter provided, without
unreasonable delay.
A Receipt surrendered for such purposes may be required by the
Depositary to be properly endorsed in blank or accompanied by proper instruments
of transfer in blank, and if the Depositary so requires, the Holder thereof
shall execute and deliver to the Depositary a written order directing the
Depositary to cause the Deposited Securities being withdrawn to be delivered to
or upon the written order of a person or persons designated in such order.
Thereupon the Depositary shall direct the Custodian to deliver at the Taipei,
Taiwan office of such Custodian, subject to Sections 2.06, 3.01 and 3.02 and to
the other terms and conditions of this Deposit Agreement, to or upon the written
order of the person or persons designated in the order delivered to the
Depositary as above provided, the number of Deposited Securities represented by
the American Depositary Shares evidenced by such Receipt, except that the
Depositary may make delivery to such person or persons at the Corporate Trust
Office of the Depositary of any dividends or distributions with respect to the
Deposited Securities represented by the American Depositary Shares evidenced by
such Receipt, or of any proceeds of sale of any dividends, distributions or
rights, which may at the time be held by the Depositary.
At the request, risk and expense of any Holder so surrendering a
Receipt, and for the account of such Holder, the Depositary shall direct the
Custodian to forward any cash or other property (other than rights) comprising,
and forward a certificate or
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certificates and other proper documents of title for, the Deposited Securities
represented by the American Depositary Shares evidenced by such Receipt to the
Depositary for delivery at the Corporate Trust Office of the Depositary. Such
direction shall be given by letter or, at the request, risk and expense of such
Holder, by cable, telex or facsimile transmission.
The Depositary shall not deliver Deposited Securities to a Holder in
accordance with this Section 2.05 unless such Holder presents evidence of
payment of any securities transaction tax which may be imposed under R.O.C. law,
unless the Company shall have advised the Depositary that no such tax is
assessable in connection with the withdrawal of Deposited Securities hereunder.
Notwithstanding anything to the contrary in this Section 2.05, the
Holder of Temporary ADSs representing an interest in the Certificate of Payment
deposited in connection with an offering shall not be entitled to withdraw any
Deposited Securities.
SECTION 2.06 Limitations on Execution and Delivery, Transfer and Surrender
of Receipts.
As a condition precedent to the execution and delivery, registration
of transfer, split-up, combination or surrender of any Receipt or withdrawal of
any Deposited Securities, the Depositary, Custodian or Registrar may require
payment from the depositor of Shares or the presenter of the Receipt of a sum
sufficient to reimburse it for any tax (including any securities transaction
tax) or other governmental charge and any stock transfer or registration fee
with respect thereto (including any such tax or charge and fee with respect to
Shares being deposited or withdrawn) and any applicable fees as herein provided,
may require the production of proof satisfactory to it as to the identity and
genuineness of any signature and may also require compliance with any reasonable
regulations the Depositary may establish consistent with the provisions of this
Deposit Agreement, including, without limitation, this Section 2.06.
The delivery of Receipts against deposit of Shares generally or
against deposit of particular Shares may be suspended, or the transfer of
Receipts in particular instances may be refused, or the registration of transfer
of outstanding Receipts generally may be suspended, during any period when the
transfer books of the Depositary are closed, or if any such action is deemed
necessary or advisable by the Depositary or the Company at any time or from time
to time because of any requirement of law or of any government or governmental
body or commission, or under any provision of this Deposit Agreement, or for any
other reason, subject to the provisions of the following sentence.
Notwithstanding anything to the contrary in this Deposit Agreement, the
surrender of outstanding Receipts and withdrawal of Deposited Securities may not
be suspended subject only to (i) temporary delays caused by closing the transfer
books of the Depositary or the Company or the deposit of Shares in connection
with voting at a shareholders' meeting or the payment of dividends, (ii) the
payment of fees, taxes and similar charges, and (iii) compliance with any U.S.
or foreign laws or governmental
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regulations relating to the Receipts or to the withdrawal of the Deposited
Securities. Without limitation of the foregoing, the Depositary shall not
knowingly accept for deposit under this Deposit Agreement any Shares required to
be registered under the provisions of the Securities Act of 1933, unless a
registration statement is in effect as to such Shares.
SECTION 2.07 Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed, lost or stolen, the
Depositary shall execute and deliver a new Receipt of like tenor in exchange and
substitution for such mutilated Receipt upon cancellation thereof, or in lieu of
and in substitution for such destroyed, lost or stolen Receipt. Before the
Depositary shall execute and deliver a new Receipt in substitution for a
destroyed, lost or stolen Receipt, the Holder thereof shall have (a) filed with
the Depositary (i) a request for such execution and delivery before the
Depositary has notice that the Receipt has been acquired by a bona fide
purchaser and (ii) a sufficient indemnity bond and (b) satisfied any other
reasonable requirements imposed by the Depositary.
SECTION 2.08 Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled.
SECTION 2.09 Pre-Release of Receipts.
Notwithstanding Section 2.03 hereof, the Depositary may execute and
deliver Receipts prior to the receipt of Shares pursuant to Section 2.02 (a
"Pre-Release"). The Depositary may, pursuant to Section 2.05, deliver Shares
upon the receipt and cancellation of Receipts which have been Pre-Released,
whether or not such cancellation is prior to the termination of such Pre-Release
or the Depositary knows that such Receipt has been Pre-Released. The Depositary
may receive Receipts in lieu of Shares in satisfaction of a Pre-Release. Each
Pre-Release will be (a) preceded or accompanied by a written representation from
the person to whom Receipts or Shares are to be delivered, that such person, or
its customer, owns the Shares or Receipts to be remitted, as the case may be,
(b) at all times fully collateralized with cash, U.S. government securities or
such other collateral as the Depositary deems appropriate, (c) terminable by the
Depositary on not more than five (5) business days notice, and (d) subject to
such further indemnities and credit regulations as the Depositary deems
appropriate. The number of American Depositary Shares which are outstanding at
any time as a result of Pre-Releases will not normally exceed thirty percent
(30%) of the Shares deposited hereunder; provided, however, that the Depositary
reserves the right to change or disregard such limit from time to time as it
deems appropriate.
The Depositary may retain for its own account any compensation
received by it in connection with the foregoing.
12
SECTION 2.10 Temporary ADRs, Temporary ADSs, Exchange of Temporary ADSs for
ADSs.
In the event the Company or any of its affiliates offers Shares in the
form of ADSs and such ADSs initially represent Certificates of Payment, such
ADSs (hereinafter, "Temporary ADSs") shall be assigned a unique CUSIP number
until such time as the Temorary ADSs no longer represent Certificates of
Payment. The Company undertakes to make Shares available in exchange for
Certificates of Payment. The Depositary shall thereupon surrender any
Certificates of Payment then eligible for exchange with the Company and the
Company shall deliver Shares to the Depositary in exchange therefor. Upon
receipt by the Depositary or the Custodian of Shares in exchange for
Certificates of Payment, the Depositary will instruct DTC to transfer the number
of Temporary ADSs held by DTC participants under the relevant number assigned to
the non-temporary ADSs (the "Standard ADSs"), and thenceforth such ADSs shall
bear the same CUSIP and ISIN numbers as the Standard ADSs. Owners and Beneficial
Owners of such Temporary ADSs shall thereafter be Owners and Beneficial Owners
of Standard ADSs and shall have all of the rights and obligations set forth
under the Deposit Agreement and the ADRs evidencing the Standard ADSs.
ARTICLE 3. CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS
SECTION 3.01 Filing Proofs, Certificates and Other Information.
Any person presenting Shares for deposit or any Holder or Beneficial
Owner of a Receipt may be required from time to time to file with the Depositary
or the Custodian such proof of citizenship or residence, exchange control
approval, or such information relating to the registration on the books of the
Company or the Foreign Registrar, if applicable, to execute such certificates
and to make such representations and warranties, as the Depositary may deem
necessary or proper. The Depositary may withhold the delivery or registration of
transfer of any Receipt or the distribution of any dividend or sale or
distribution of rights or of the proceeds thereof or the delivery of any
Deposited Securities until such proof or other information is filed or such
certificates are executed or such representations and warranties made and any
required exchange control approval obtained.
SECTION 3.02 Liability of Holder or Beneficial Owner for Taxes.
If any tax or other governmental charge shall become payable by the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by any Receipt (including any securities transaction
tax), such tax or other governmental charge shall be payable by the Holder or
Beneficial Owner of such Receipt to the Depositary. The Depositary may refuse to
effect any transfer of such Receipt or any withdrawal of Deposited Securities
represented by American Depositary Shares evidenced by such Receipt until such
payment is made, and may withhold any dividends
13
or other distributions, or may sell for the account of the Holder or Beneficial
Owner thereof any part or all of the Deposited Securities represented by the
American Depositary Shares evidenced by such Receipt, and may apply such
dividends or other distributions or the proceeds of any such sale in payment of
such tax or other governmental charge and the Holder or Beneficial Owner of such
Receipt shall remain liable for any deficiency.
SECTION 3.03 Representations and Warranties on Deposit, Transfer, Surrender
and Withdrawal of Shares or Receipts.
Each person presenting Shares for deposit under this Deposit Agreement
shall be deemed thereby to represent and warrant that (i) such Shares and each
certificate therefor are duly and validly authorized, issued and outstanding,
fully paid and nonassessable and free of any preemptive rights of the holders of
outstanding Shares and (ii) the person making such deposit is duly authorized so
to do. Such representations and warranties shall survive the deposit and
withdrawal of Shares and the issuance or cancellation of Receipts or adjustments
in the Depositary's records in respect thereof.
Each person depositing Shares, taking delivery of or transferring
Receipts or any beneficial interest therein, or surrendering Receipts or any
beneficial interest therein and withdrawing Shares under this Deposit Agreement
shall be deemed thereby to represent and warrant that such Shares or Receipts
are not Restricted Securities and that any such deposit, sale, transfer or
surrender and withdrawal is not restricted under the Securities Act of 1933 and
is in accordance with the applicable restrictions and conditions on
transferability set forth in this Deposit Agreement, in each case in accordance
with any applicable securities laws of any State of the United States. Such
representations and warranties shall survive any such deposit, sale, transfer or
surrender and withdrawal of the Shares or the receipts or beneficial interest
therein.
SECTION 3.04 Disclosure of Interests.
The Company and the Depositary may from time to time request Holders
or former Holders to provide information as to the capacity in which such
Holders hold or held ADRs and regarding the identity of any other persons then
or previously interested in such ADRs and the nature of such interest and
various other matters as may be required to comply with applicable law or the
Articles of Incorporation of the Company. Each such Holder agrees to provide any
information requested by the Company or the Depositary pursuant to this Section
3.04 and any applicable laws or regulations whether or not still a Holder at the
time of such request.
SECTION 3.05 Ownership Restrictions.
Notwithstanding any other provision of this Deposit Agreement, the
Company may, subject to any applicable laws and regulations, restrict deposits
of the Shares where such deposit might result in ownership of Shares exceeding
the limits under
14
applicable law or the Company's Articles of Incorporation. Currently, under the
Telecommunications Act of the R.O.C., the total direct and indirect shareholding
of the Company by non-R.O.C. persons may not exceed twenty percent (20%) of the
total outstanding Shares, which shareholding limitation may change from time to
time. The Company may, in its sole discretion, instruct the Depositary in
writing to take action with respect to the ownership interest of any Holder in
excess of the limitation set forth in the preceding sentence, including but not
limited to refusing to accept Shares for deposit from a holder of Shares in
excess of the applicable limitation if a deposit of Shares would result in a
violation of such limitations, if and to the extent such action is permitted by
any applicable law. The Depositary shall use its reasonable efforts to comply
with the written instructions of the Company as provided in this Section, only
if such instructions are reasonable and practicable.
SECTION 3.06 Compliance with Information Requests.
Notwithstanding any other provision of this Deposit Agreement, each
Holder agrees to comply with requests from the Company pursuant to R.O.C. law
and any stock exchange on which the Shares are, or will be, registered, traded
or listed or the Articles of Incorporation of the Company, which are made to
provide information, inter alia, as to the capacity in which such Holder owns
Receipts (and Shares as the case may be) and regarding the identity of any other
person interest in such Receipts and the nature of such interest, and the
Depositary agrees to use its reasonable efforts to comply with written
instructions, only if such instructions are reasonable and practicable, received
from the Company requesting that the Depositary forward any such request from
the Company to the Holder and to forward to the Company any such responses to
such requests received by the Depositary.
SECTION 3.07 Tax Guarantor; Securities Trading Account.
The Depositary and the Company have been advised that under current
R.O.C. law, a Holder who is a non-R.O.C. person wishing to withdraw Deposited
Securities from the ADR facility is required to appoint an eligible agent in the
R.O.C. for filing tax returns and making tax payments (a "Tax Guarantor"). Such
Tax Guarantor will be required to meet the qualifications set by the Ministry of
Finance of the R.O.C. and will act as the guarantor of the withdrawing Holder's
tax payment obligations. In addition, subject to certain limited exceptions,
under current R.O.C. law, repatriation of profits by a non-R.O.C. withdrawing
Holder is subject to the submission of evidence by the withdrawing Holder of the
appointment of a Tax Guarantor to, and approval thereof by, the tax authority.
The Depositary and the Company have also been advised that, under
current R.O.C. law, such withdrawing Holder is required to appoint a local agent
in the R.O.C. to, among other things, open a securities trading account with a
local securities brokerage firm, remit funds and exercise shareholder's rights.
In addition, such withdrawing Holder is also required to appoint a custodian
bank to hold the securities and
15
cash in safekeeping, make confirmations and settle trades and report all
relevant information. Without making such appointment and the opening of such
account, the withdrawing Holder would be unable to hold or subsequently sell the
Deposited Securities withdrawn from the ADR facility on the Taiwan Stock
Exchange or otherwise. The laws of the R.O.C. applicable to the withdrawal of
Deposited Securities may change from time to time. There can be no assurances
that current law will remain in effect or that future changes of R.O.C. law will
not adversely affect the ability of Holders to withdraw Deposited Securities
hereunder.
ARTICLE 4. THE DEPOSITED SECURITIES
SECTION 4.01 Cash Distributions.
Whenever the Depositary shall receive any cash dividend or other cash
distribution on any Deposited Securities, the Depositary shall, subject to the
provisions of Section 4.05, convert such dividend or distribution into Dollars
and shall distribute the amount thus received (net of the fees and expenses of
the Depositary as provided in Section 5.09) to the Holders entitled thereto, in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by them respectively; provided, however, that in the
event that the Company or the Depositary shall be required to withhold and does
withhold from such cash dividend or such other cash distribution an amount on
account of taxes, the amount distributed to the Holder of the Receipts
evidencing American Depositary Shares representing such Deposited Securities
shall be reduced accordingly. The Depositary shall distribute only such amount,
however, as can be distributed without attributing to any Holder a fraction of
one cent. Any such fractional amounts shall be rounded to the nearest whole cent
and so distributed to Holders entitled thereto. The Company or its agent will
withhold and pay to the appropriate governmental agency in the R.O.C. all
amounts withheld and owing to such agency. The Depositary will forward to the
Company or its agent such information from its records as the Company may
reasonably request to enable the Company or its agent to file necessary reports
with governmental agencies, and the Depositary or the Company or its agent may
file any such reports necessary to obtain benefits under the applicable tax
treaties for the Holders of Receipts.
SECTION 4.02 Distributions Other Than Cash, Shares or Rights.
Subject to the provisions of Sections 4.11 and 5.09, whenever the
Depositary shall receive any distribution other than a distribution described in
Section 4.01, 4.03 or 4.04, the Depositary shall cause the securities or
property received by it to be distributed to the Holders entitled thereto, after
deduction or upon payment of any fees and expenses of the Depositary or any
taxes or other governmental charges, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by them
respectively, in any manner that the Depositary may deem equitable and
practicable for accomplishing such distribution; provided, however, that if in
the reasonable opinion of the Depositary such distribution cannot be made
16
proportionately among the Holders entitled thereto, or if for any other reason
(including, but not limited to, any requirement that the Company or the
Depositary withhold an amount on account of taxes or other governmental charges
or that such securities must be registered under the Securities Act of 1933 in
order to be distributed to Holders or Beneficial Owners) the Depositary deems
such distribution not to be feasible, the Depositary may adopt such method as it
may deem equitable and practicable for the purpose of effecting such
distribution, including, but not limited to, the public or private sale of the
securities or property thus received, or any part thereof, and the net proceeds
of any such sale (net of the fees and expenses of the Depositary as provided in
Section 5.09) shall be distributed by the Depositary to the Holders entitled
thereto, all in the manner and subject to the conditions described in Section
4.01.
SECTION 4.03 Distributions in Shares.
If any distribution upon any Deposited Securities consists of a
dividend in, or free distribution of, Shares, the Depositary may, and will if
the Company so requests, distribute to the Holders of outstanding Receipts
entitled thereto, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by them respectively, additional
Receipts evidencing an aggregate number of American Depositary Shares
representing the amount of Shares received as such dividend or free
distribution, subject to the terms and conditions of the Deposit Agreement with
respect to the deposit of Shares and the issuance of American Depositary Shares
evidenced by Receipts, including the withholding of any tax or other
governmental charge as provided in Section 4.11 and the payment of the fees and
expenses of the Depositary as provided in Section 5.09. The Depositary may
withhold any such distribution of Receipts if it has not received satisfactory
assurances from the Company (which may be an opinion of counsel) that such
distribution does not require registration under the Securities Act of 1933 or
is exempt from registration under the provisions of such Act. If additional
Receipts are not so distributed, each American Depositary Share shall
thenceforth also represent the additional Shares distributed upon the Deposited
Securities represented thereby. In lieu of delivering Receipts for fractional
American Depositary Shares in any such case, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds, all in the manner and subject to the conditions described in
Section 4.01.
SECTION 4.04 Rights.
In the event that the Company shall offer or cause to be offered to
the holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any other nature, the Depositary shall have discretion
as to the procedure to be followed in making such rights available to any
Holders or in disposing of such rights on behalf of any Holders and making the
net proceeds available in Dollars to such Holders or, if by the terms of such
rights offering or for any other reason, the Depositary may not either make such
rights available to any Holders or dispose of such rights and make the
17
net proceeds available to such Holders, then the Depositary shall allow the
rights to lapse. If at the time of the offering of any rights the Depositary
determines in its discretion that it is lawful and feasible to make such rights
available to all or certain Holders but not to other Holders, the Depositary may
distribute to any Holder to whom it determines the distribution to be lawful and
feasible, in proportion to the number of American Depositary Shares held by such
Holder, warrants or other instruments therefor in such form as it deems
appropriate.
In circumstances in which rights would otherwise not be distributed,
if a Holder of Receipts requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the American Depositary
Shares of such Holder hereunder, the Depositary will make such rights available
to such Holder upon written notice from the Company to the Depositary that (a)
the Company has elected in its sole discretion to permit such rights to be
exercised and (b) such Holder has executed such documents as the Company has
determined in its sole discretion are reasonably required under applicable law.
If the Depositary has distributed warrants or other instruments for
rights to all or certain Holders, then upon instruction from such a Holder
pursuant to such warrants or other instruments to the Depositary from such
Holder to exercise such rights, upon payment by such Holder to the Depositary
for the account of such Holder of an amount equal to the purchase price of the
Shares to be received upon the exercise of the rights, and upon payment of the
fees and expenses of the Depositary and any other charges as set forth in such
warrants or other instruments, the Depositary shall, on behalf of such Holder,
exercise the rights and purchase the Shares, and the Company shall cause the
Shares so purchased to be delivered to the Depositary or the Custodian on behalf
of such Holder. As agent for such Holder, the Depositary will cause the Shares
so purchased to be deposited pursuant to Section 2.02 of this Deposit Agreement,
and shall, pursuant to Section 2.03 of this Deposit Agreement, execute and
deliver Receipts to such Holder. In the case of a distribution pursuant to the
second paragraph of this section, such Receipts shall be legended in accordance
with applicable laws, and shall be subject to the appropriate restrictions on
sale, deposit, cancellation, and transfer under such laws.
If the Depositary determines in its discretion that it is not lawful
and feasible to make such rights available to all or certain Holders, it may
sell the rights, warrants or other instruments in proportion to the number of
American Depositary Shares held by the Holders to whom it has determined it may
not lawfully or feasibly make such rights available, and allocate the net
proceeds of such sales (net of the fees and expenses of the Depositary as
provided in Section 5.09 and all taxes and governmental charges payable in
connection with such rights and subject to the terms and conditions of this
Deposit Agreement) for the account of such Holders otherwise entitled to such
rights, warrants or other instruments, upon an averaged or other practical basis
without regard to any distinctions among such Holders because of exchange
restrictions or the date of delivery of any Receipt, Receipts or otherwise.
18
The Depositary will not offer rights to Holders unless both the rights
and the securities to which such rights relate are either exempt from
registration under the Securities Act of 1933 with respect to a distribution to
Holders or are registered under the provisions of such Act; provided, that
nothing in this Deposit Agreement shall create, or be construed to create, any
obligation on the part of the Company to file a registration statement with
respect to such rights or underlying securities or to endeavor to have such a
registration statement declared effective. If a Holder of Receipts requests the
distribution of warrants or other instruments, notwithstanding that there has
been no such registration under such Act, the Depositary shall not effect such
distribution unless it has received an opinion from recognized counsel in the
United States to the Company upon which the Depositary may rely that such
distribution to such Holder is exempt from such registration.
The Depositary shall not be responsible for any determination or
failure to determine that it may be lawful or feasible to make such rights
available to Holders in general or any Holder in particular.
SECTION 4.05 Conversion of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign
currency, by way of dividends or other distributions or the net proceeds from
the sale of securities, property or rights, and if at the time of the receipt
thereof the foreign currency so received can in the judgment of the Depositary
be converted on a reasonable basis into Dollars and the resulting Dollars
transferred to the United States, the Depositary shall convert or cause to be
converted, by sale or in any other manner that it may determine, such foreign
currency into Dollars, and such Dollars shall be distributed to the Holders
entitled thereto or, if the Depositary shall have distributed any warrants or
other instruments which entitle the holders thereof to such Dollars, then to the
holders of such warrants and/or instruments upon surrender thereof for
cancellation. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on account of
exchange restrictions, the date of delivery of any Receipt or otherwise and
shall be net of any expenses of conversion into Dollars incurred by the
Depositary as provided in Section 5.09.
If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary shall determine that in its judgment any
foreign currency received by the Depositary or the Custodian is not convertible
on a reasonable basis into Dollars transferable to the United States, or if any
approval or license of any government or agency thereof which is required for
such conversion is denied or in the opinion of the Depositary is not obtainable,
or if any such approval or license is not obtained within a reasonable period as
determined by the Depositary, the Depositary may distribute the foreign currency
(or an appropriate document evidencing
19
the right to receive such foreign currency) received by the Depositary or the
Custodian to, or in its discretion may hold such foreign currency uninvested and
without liability for interest thereon for the respective accounts of, the
Holders entitled to receive the same.
If any such conversion of foreign currency, in whole or in part,
cannot be effected for distribution to some of the Holders entitled thereto, the
Depositary may in its discretion make such conversion and distribution in
Dollars to the extent permissible to the Holders entitled thereto and may
distribute the balance of the foreign currency received by the Depositary to, or
hold such balance uninvested and without liability for interest thereon for the
respective accounts of, the Holders entitled thereto.
SECTION 4.06 Fixing of Record Date.
Whenever any cash dividend or other cash distribution shall become
payable or any distribution other than cash shall be made, or whenever rights
shall be issued with respect to the Deposited Securities, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever for any reason the Depositary causes a change
in the number of Shares that are represented by each American Depositary Share,
or whenever the Depositary shall find it necessary or convenient, the Depositary
shall fix a record date (a) for the determination of the Holders who shall be
(i) entitled to receive such dividend, distribution or rights or the net
proceeds of the sale thereof or (ii) entitled to give instructions for the
exercise of voting rights at any such meeting, (b) on or after which each
American Depositary Share will represent the changed number of Shares or (c) for
such other persons as the Depositary finds necessary or convenient, which date
shall be the same date or as near as practicable to the corresponding record
date fixed by the Company. Subject to the provisions of Sections 4.01 through
4.05 and to the other terms and conditions of this Deposit Agreement, the
Holders on such record date shall be entitled, as the case may be, to receive
the amount distributable by the Depositary with respect to such dividend or
other distribution or such rights or the net proceeds of sale thereof in
proportion to the number of American Depositary Shares held by them respectively
and to give voting instructions and to act in respect of any other such matter.
The Depositary shall notify the applicable U.S. exchange of any action to fix a
record date for the ADSs in the customary manner.
SECTION 4.07 Voting of Deposited Securities.
The Holders hereby appoint the Depositary as their representative to
exercise voting rights with respect to the Shares represented by the ADSs in the
following manner. The Company agrees to provide the Depositary no later than the
business day (the "Cutoff Date") that is at least 24 calendar days prior to any
meeting of shareholders (such period covering the date of dispatch of such
notice and the date of the meeting of shareholders) with sufficient copies of
the annual report or any other relevant report as the Depositary may reasonably
request. Upon the written request of the Company, the Depositary will, at the
sole cost and expense of the Company, duplicate for distribution a sufficient
amount of documents specified by the Company to be duplicated and
20
distributed, including a copy of notices of meetings of the shareholders of the
Company and the agenda therefor and any voting instruction forms, as well as
English translations thereof (containing an indication of the number of
directors or supervisors to be elected in the case of an election of directors
or supervisors), by which each Holder may give instructions to the Depositary to
vote (i) for or against each resolution specified in the agenda for the meeting
and (ii) on a cumulative basis, for the persons designated by such Holder as
directors and supervisors (the "Materials"). Upon receipt of the Materials, the
Depositary shall, as soon as practicable thereafter, fix a record date for
determining the Holders entitled to receive information as to such meeting as
provided in Section 4.06 and shall mail the Materials to such Holders. If the
Company fails to supply the Materials to the Depositary by the Cutoff Date, the
Depositary shall be under no obligation to mail the Materials to Holders and,
subject to the provisions described below, will cause all Deposited Securities
represented by the ADRs to be present at the relevant meeting of shareholders
insofar as practicable and permitted under applicable law but will not vote or
notify any voting instructions relating to any such Deposited Securities. In
order for voting instructions with respect to an ADS to be valid, the
instructions must be completed and duly signed by the Holder of such ADS on the
record date established by the Depositary and returned to the Depositary by such
date. The Depositary shall exercise voting rights with respect to the ADS only
in accordance with valid voting instructions.
Subject to the provisions described in the following paragraph, which
will apply to the election of directors and supervisors, if a Holder or Holders
together holding at least 51% of the ADSs outstanding at the relevant record
date instruct the Depositary to vote in the same manner in respect of one or
more resolutions to be proposed at the meeting (other than the election of
directors or supervisors), the Depositary shall notify the instructions to the
Designated Representative (as defined below in this Section 4.7) or such other
person as he may designate (the "Substitute") and appoint the Designated
Representative or the Substitute as the representative of the Depositary and
Holders to attend such meeting and vote all the Deposited Securities represented
by ADSs in the manner so instructed by such Holders in relation to such
resolution or resolutions. If, for any reason, the Depositary has not by the
date specified by it received instructions from a Holder or Holders together
holding at least 51% of all the ADSs outstanding at the relevant record date to
vote in the same manner in respect of any resolution (other than the election of
directors or supervisors), then such Holders will be deemed to have instructed
the Depositary to authorize and appoint the Designated Representative or the
Substitute as the representative of the Depositary and the Holders to attend
such meeting and vote, at his sole discretion, all the Deposited Securities
represented by all ADSs, which may not be in the interest of the Holders;
provided, however, that no such authorization shall be given with respect to any
matter as to which the Designated Representative informs the Depositary that he
does not wish to be so authorized, in which event the Depositary will not vote
at the relevant meeting but will take such action as is necessary to cause all
the Deposited Securities to be counted for the purpose of satisfying applicable
quorum requirements.
21
The Depositary will notify the Designated Representative or the
Substitute of the instructions for the election of directors and supervisors
received from Holders and appoint the Designated Representative or the
Substitute as the representative of the Depositary and the Holders to attend
such meeting and, subject to the provisions described in this paragraph, vote
the Deposited Securities represented by ADSs as to which the Depositary has
received instructions from Holders for the election of directors and supervisors
in the manner so instructed, subject to any restrictions imposed by R.O.C. law,
rule or regulation or the Articles of Incorporation of the Company. Holders who
by the date specified by the Depositary have not delivered instructions to the
Depositary will be deemed to have instructed the Depositary to authorize the
Designated Representative or the Substitute as the representative of the
Depositary and the Holders to attend such meeting and vote, at his sole
discretion, all the Deposited Securities represented by ADSs as to which the
Depositary has not received instructions from the Holders for the election of
directors and supervisors, which may not be in the interest of the Holders;
provided, however, that no such authorization shall be given with respect to any
election of directors or supervisors as to which the Designated Representative
informs the Depositary that he does not wish to be so authorized, in which event
the Depositary will attend such meeting and will vote those Deposited Securities
represented by the ADSs as to which it has received instructions from Holders
for the election of directors and supervisors in the manner so instructed;
provided further, that the Depositary will not vote at the relevant meeting any
Deposited Securities represented by ADSs, as to which the Depositary has not
received instructions from the Holders for the election of directors and
supervisors but will take such action as is necessary to cause all the Deposited
Securities to be counted for the purpose of satisfying applicable quorum
requirements.
By continuing to hold ADRs, all Holders will be deemed to have agreed
to these voting provisions, as they may be amended from time to time.
The Depositary will not, and the Depositary will endeavor to ensure
that the Custodian and their respective nominees (including the Designated
Representative) do not (except as described above), exercise any discretion as
to voting, nor vote or attempt to exercise the right to vote that attaches to
the Deposited Securities, other than in accordance with instructions received as
herein provided.
"Designated Representative" means the person who is Chairman of the
Company from time to time.
Beneficial Owners are entitled to exercise their voting rights only
through the procedures applicable to the respective Holders of the ADRs in which
they have a beneficial interest.
22
SECTION 4.08 Changes Affecting Deposited Securities.
In circumstances where the provisions of Section 4.03 do not apply,
upon any change in nominal value, change in par value, split-up, consolidation
or any other reclassification of Deposited Securities, or upon any
recapitalization, reorganization, merger or consolidation or sale of assets
affecting the Company or to which it is a party, and upon the Depositary having
obtained specific regulatory approval, if necessary, for the issuance of
additional ADSs from the appropriate governmental entity in the R.O.C., any
securities which shall be received by the Depositary or a Custodian in exchange
for, in conversion of or in respect of Deposited Securities, shall be treated as
new Deposited Securities under this Deposit Agreement, and American Depositary
Shares shall thenceforth represent, in addition to the existing Deposited
Securities, the right to receive the new Deposited Securities so received in
exchange or conversion, unless additional Receipts are delivered pursuant to the
following sentence. In any such case the Depositary may, and shall if the
Company shall so request, execute and deliver additional Receipts as in the case
of a distribution in Shares, or call for the surrender of outstanding Receipts
to be exchanged for new Receipts specifically describing such new Deposited
Securities.
SECTION 4.09 Reports.
The Depositary shall make available for inspection by Holders at its
Corporate Trust Office any reports and communications, including any proxy
soliciting material, received from the Company which are both (a) received by
the Depositary as the holder of the Deposited Securities and (b) made generally
available to the holders of such Deposited Securities by the Company. The
Depositary shall also, upon written request, send to the Holders copies of such
reports furnished by the Company pursuant to Section 5.06. Any such reports and
communications, including any such proxy soliciting material, furnished to the
Depositary by the Company shall be furnished in English, to the extent such
materials are required to be translated into English pursuant to any regulations
of the Commission or any stock exchange on which the American Depositary Shares
are listed.
SECTION 4.10 Lists of Holders.
Promptly upon request by the Company to the Depositary, the Depositary
shall furnish to the Company a list of the names, addresses and holdings of
American Depositary Shares by all persons in whose names Receipts are registered
on the books of the Depositary. No more than four such lists per annum shall be
provided by the Depositary to the Company at no cost to the Company. Any such
additional lists shall be provided by the Depositary to the Company at the
expense of the Company.
23
SECTION 4.11 Withholding.
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to any
tax or other governmental charge which the Depositary is obligated to withhold,
the Depositary may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner as the Depositary deems necessary and practicable to pay such
taxes or charges and the Depositary shall distribute the net proceeds of any
such sale after deduction of such taxes or charges to the Holders entitled
thereto in proportion to the number of American Depositary Shares held by them
respectively.
ARTICLE 5. THE DEPOSITARY, THE CUSTODIANS AND THE COMPANY
SECTION 5.01 Maintenance of Office and Transfer Books by the Depositary.
Until termination of this Deposit Agreement in accordance with its
terms, the Depositary shall maintain in the Borough of Manhattan, The City of
New York, facilities for the execution and delivery, registration, registration
of transfers and surrender of Receipts in accordance with the provisions of this
Deposit Agreement.
The Depositary shall keep books, at its Corporate Trust Office, for
the registration of Receipts and transfers of Receipts which shall at all
reasonable times be open for inspection by the Holders, provided that such
inspection shall not be for the purpose of communicating with Holders in the
interest of a business or object other than the business of the Company or a
matter related to this Deposit Agreement or the Receipts. The Depositary agrees
that it will not otherwise disclose any information set forth in such records
except as requested or authorized in writing by the Company or as required by
law.
The Depositary may close the transfer books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby
are listed on one or more stock exchanges in the United States, the Depositary
shall act as Registrar or appoint a Registrar or one or more co-registrars for
registry of such Receipts in accordance with any requirements of such exchange
or exchanges.
24
SECTION 5.02 Prevention or Delay in Performance by the Depositary or the
Company.
Neither the Depositary nor the Company nor any of their respective
directors, employees, agents or affiliates shall incur any liability to any
Holder or Beneficial Owner of any Receipt, if by reason of any provision of any
present or future law or regulation of the United States, the R.O.C. or any
other jurisdiction, or of any governmental or regulatory authority or stock
exchange, or by reason of any provision, present or future, of the Articles of
Incorporation of the Company, or by reason of any provision of any securities
issued or distributed by the Company, or any offering or distribution thereof,
or by reason of any act of God or war or terrorism or other circumstances beyond
its control, the Depositary or the Company shall be prevented, delayed or
forbidden from, or be subject to any civil or criminal penalty on account of,
doing or performing any act or thing which by the terms of this Deposit
Agreement it is provided shall be done or performed; nor shall the Depositary or
the Company or any of their respective directors, employees, agents or
affiliates incur any liability to any Holder or Beneficial Owner of any Receipt
by reason of any nonperformance or delay, caused as aforesaid, in the
performance of any act or thing which by the terms of this Deposit Agreement it
is provided shall or may be done or performed, or by reason of any exercise of,
or failure to exercise, any discretion provided for in this Deposit Agreement.
Where, by the terms of a distribution pursuant to Section 4.01, 4.02, or 4.03 of
the Deposit Agreement, or an offering or distribution pursuant to Section 4.04
of the Deposit Agreement, or for any other reason, such distribution or offering
may not be made available to Holders, and the Depositary may not dispose of such
distribution or offering on behalf of such Holders and make the net proceeds
available to such Holders, then the Depositary shall not make such distribution
or offering, and shall allow any rights, if applicable, to lapse.
SECTION 5.03 Obligations of the Depositary, the Custodian and the Company.
The Company assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to Holders or Beneficial Owners, except
that it agrees to perform its obligations specifically set forth in this Deposit
Agreement without negligence or bad faith.
The Depositary assumes no obligation nor shall it be subject to any
liability under this Deposit Agreement to any Holder or Beneficial Owner
(including, without limitation, liability with respect to the validity or worth
of the Deposited Securities), except that it agrees to perform its obligations
specifically set forth in this Deposit Agreement without negligence or bad
faith.
Neither the Depositary nor the Company shall be under any obligation
to appear in, prosecute or defend any action, suit or other proceeding in
respect of any Deposited Securities or in respect of the Receipts, which in its
opinion may involve it in
25
expense or liability, unless indemnity satisfactory to it against all expense
and liability shall be furnished as often as may be required, and the Custodian
shall not be under any obligation whatsoever with respect to such proceedings,
the responsibility of the Custodian being solely to the Depositary.
Neither the Depositary nor the Company shall be liable for any action
or nonaction by it in reliance upon the advice of or information from legal
counsel, accountants, any person presenting Shares for deposit, any Holder or
any other person believed by it in good faith to be competent to give such
advice or information.
The Depositary shall not be liable for any acts or omissions made by a
successor depositary whether in connection with a previous act or omission of
the Depositary or in connection with any matter arising wholly after the removal
or resignation of the Depositary, provided that in connection with the issue out
of which such potential liability arises the Depositary performed its
obligations without negligence or bad faith while it acted as Depositary.
Neither the Depositary nor the Company shall be responsible for any
failure to carry out any instructions to vote any of the Deposited Securities,
or for the manner in which any such vote is cast or the effect of any such vote,
provided that any such action or nonaction is in good faith.
No disclaimer of liability under the Securities Act of 1933 is
intended by any provision of this Deposit Agreement.
SECTION 5.04 Resignation and Removal of the Depositary.
The Depositary may at any time resign as Depositary hereunder by
written notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment by the Company of a successor
depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by 120 days
prior written notice of such removal, to become effective upon the later of (i)
the 120th day after delivery of the notice to the Depositary or (ii) appointment
by the Company of a successor depositary and its acceptance of such appointment
as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall use its best efforts to appoint a successor
depositary, which shall be a bank or trust company having an office in the
Borough of Manhattan, The City of New York. Every successor depositary shall
execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor; but such
predecessor, nevertheless, upon payment of all sums due it and on the written
request of
26
the Company shall execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Deposited
Securities to such successor, and shall deliver to such successor a list of the
Holders of all outstanding Receipts. Any such successor depositary shall
promptly mail notice of its appointment to the Holders.
Any corporation into or with which the Depositary may be merged or
consolidated shall be the successor of the Depositary without the execution or
filing of any document or any further act.
SECTION 5.05 The Custodians.
The Custodian shall be subject at all times and in all respects to the
directions of the Depositary and shall be responsible solely to it. Any
Custodian may resign and be discharged from its duties hereunder by notice of
such resignation delivered to the Depositary at least 30 days prior to the date
on which such resignation is to become effective. If upon such resignation there
shall be no Custodian acting hereunder, the Depositary shall, promptly after
receiving such notice, subject to the prior written consent of the Company
(which consent shall not be unreasonably withheld or delayed), appoint a
substitute custodian or custodians, each of which shall thereafter be a
Custodian hereunder. Whenever the Depositary in its discretion determines that
it is in the best interest of the Holders to do so, it may, subject to the prior
written consent of the Company (which consent shall not be unreasonably withheld
or delayed), appoint a substitute or additional custodian or custodians, each of
which shall thereafter be one of the Custodians hereunder. Upon demand of the
Depositary any Custodian shall deliver such of the Deposited Securities held by
it as are requested of it to any other Custodian or such substitute or
additional custodian or custodians. Each such substitute or additional custodian
shall deliver to the Depositary, forthwith upon its appointment, an acceptance
of such appointment satisfactory in form and substance to the Depositary.
Upon the appointment of any successor depositary hereunder, each
Custodian then acting hereunder shall forthwith become, without any further act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of each
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver to
such Custodian all such instruments as may be proper to give to such Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
SECTION 5.06 Notices and Reports.
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other Deposited
Securities, or of any adjourned meeting of such holders, or of the taking of any
action in respect of any cash or other distributions or the offering of any
rights, the Company
27
agrees to transmit to the Depositary and the Custodian a copy of the notice
thereof in the form given or to be given to holders of Shares or other Deposited
Securities.
The Company will arrange for the translation into English and the
prompt transmittal by the Company to the Depositary and the Custodian of such
notices and any other reports and communications which are made generally
available by the Company to holders of its Shares. If requested in writing by
the Company, the Depositary will arrange for the mailing of copies of such
notices, reports and communications to all Holders. The Company will timely
provide the Depositary with such notices, reports, and communications, as
requested by the Depositary from time to time, in order for the Depositary to
effect such mailings.
SECTION 5.07 Distribution of Additional Shares, Rights, etc.
The Company agrees that in the event of any issuance or distribution
of (1) additional Shares, (2) rights to subscribe for Shares, (3) securities
convertible into Shares, or (4) rights to subscribe for such securities (each a
"Distribution"), the Company will promptly furnish to the Depositary a written
opinion from recognized counsel in the United States to the Company stating
whether or not the Distribution requires a Registration Statement under the
Securities Act of 1933 to be in effect prior to making such Distribution
available to Holders entitled thereto. If in the opinion of such counsel a
registration statement under the Securities Act of 1933 is required, such
counsel shall furnish to the Depositary a written opinion as to whether or not
there is a registration statement in effect which will cover such Distribution.
The Company agrees with the Depositary that neither the Company nor
any of its affiliates (as such term is defined in Rule 144 under the Securities
Act of 1933) will at any time deposit any Shares, either originally issued or
previously issued and reacquired by the Company or any such affiliate, unless
such Shares or proposed transactions are exempt from registration under the
Securities Act of 1933 or unless a registration statement is in effect as to
such Shares under the Securities Act of 1933.
Notwithstanding anything else contained in this Deposit Agreement,
nothing in this Deposit Agreement shall be deemed to obligate the Company to
file any registration statement in respect of any proposed transaction.
SECTION 5.08 Indemnification.
The Company agrees to indemnify the Depositary, its directors,
employees, agents and affiliates and any Custodian against, and hold each of
them harmless from, any liability or expense (including, but not limited to, the
reasonable fees and expenses of counsel) which may arise out of any registration
with the Commission of Receipts, American Depositary Shares or Deposited
Securities or the offer or sale thereof in the United States or out of acts
performed or omitted, in accordance with the provisions of this Deposit
Agreement and of the Receipts, as the same may be amended,
28
modified or supplemented from time to time, (i) by either the Depositary or a
Custodian or their respective directors, employees, agents and affiliates,
except for any liability or expense arising out of the negligence or bad faith
of either of them, or (ii) by the Company or any of its directors, employees,
agents and affiliates.
The indemnities contained in the preceding paragraph shall not extend
to any liability or expense which arises solely and exclusively out of a
Pre-Release (as defined in Section 2.09) of a Receipt or Receipts in accordance
with Section 2.09 and which would not otherwise have arisen had such Receipt or
Receipts not been the subject of a Pre-Release pursuant to Section 2.09;
provided, however, that the indemnities provided in the preceding paragraph
shall apply to any such liability or expense (i) to the extent that such
liability or expense would have arisen had a Receipt or Receipts not be the
subject of a Pre-Release, or (ii) which may arise out of any misstatement or
alleged misstatement or omission or alleged omission in any registration
statement, proxy statement, prospectus (or placement memorandum), or preliminary
prospectus (or preliminary placement memorandum) relating to the offer or sale
of American Depositary Shares, except to the extent any such liability or
expense arises out of (i) information relating to the Depositary or any
Custodian (other than the Company), as applicable, furnished in writing by the
Depositary or any Custodian and not materially changed or altered by the Company
expressly for use in any of the foregoing documents, or, (ii) if such
information is provided, the failure to state a material fact necessary to make
the information provided not misleading.
The Depositary agrees to indemnify the Company, its directors,
employees, agents and affiliates and hold them harmless from any liability or
expense (including, but not limited to, the reasonable fees and expenses of
counsel) which may arise out of acts performed or omitted by the Depositary or
its Custodian or their respective directors, employees, agents and affiliates
due to their negligence or bad faith.
SECTION 5.09 Charges of Depositary.
The Company agrees to pay the fees, reasonable expenses and out-of-
pocket charges of the Depositary and those of any Registrar only in accordance
with agreements in writing entered into between the Depositary and the Company
from time to time. The Depositary shall present its statement for such charges
and expenses to the Company once every three months. The charges and expenses of
the Custodian are for the sole account of the Depositary.
The following charges shall be incurred by any party depositing or
withdrawing Shares or by any party surrendering Receipts or to whom Receipts are
issued (including, without limitation, issuance pursuant to a stock dividend or
stock split declared by the Company or an exchange of stock regarding the
Receipts or Deposited Securities or a distribution of Receipts pursuant to
Section 4.03), or by Holders, as applicable: (1) taxes and other governmental
charges, (2) such registration fees as may from time to time be in effect for
the registration of transfers of Shares generally on the
29
Share register of the Company or Foreign Registrar and applicable to transfers
of Shares to or from the name of the Depositary or its nominee or the Custodian
or its nominee on the making of deposits or withdrawals hereunder, (3) such
cable, telex and facsimile transmission expenses as are expressly provided in
this Deposit Agreement, (4) such expenses as are incurred by the Depositary in
the conversion of foreign currency pursuant to Section 4.05, (5) a fee of $5.00
or less per 100 American Depositary Shares (or portion thereof) for the
execution and delivery of Receipts pursuant to Section 2.03, 4.03 or 4.04 and
the surrender of Receipts pursuant to Section 2.05 or 6.02, (6) a fee of $.02 or
less per American Depositary Share (or portion thereof) for any cash
distribution made pursuant to the Deposit Agreement, including, but not limited
to Sections 4.01 through 4.04 hereof to the extent permitted by the rules of any
securities exchange on which the American Depositary Shares may be listed for
trading, (7) a fee for the distribution of securities pursuant to Section 4.02,
such fee being in an amount equal to the fee for the execution and delivery of
American Depositary Shares referred to above which would have been charged as a
result of the deposit of such securities (for purposes of this clause 7 treating
all such securities as if they were Shares) but which securities are instead
distributed by the Depositary to Holders and (8) any other charge payable by the
Depositary, any of the Depositary's agents, including the Custodian, or the
agents of the Depositary's agents in connection with the servicing of Shares or
other Deposited Securities (which charge shall be assessed against Holders as of
the date or dates set by the Depositary in accordance with Section 4.06 and
shall be payable at the sole discretion of the Depositary by billing such
Holders for such charge or by deducting such charge from one or more cash
dividends or other cash distributions).
The Depositary, subject to Section 2.09 hereof, may own and deal in
any class of securities of the Company and its affiliates and in Receipts.
SECTION 5.10 Retention of Depositary Documents.
The Depositary is authorized to destroy those documents, records,
bills and other data compiled during the term of this Deposit Agreement at the
times permitted by the laws or regulations governing the Depositary unless the
Company requests that such papers be retained for a longer period or turned over
to the Company or to a successor depositary.
SECTION 5.11 Exclusivity.
The Company agrees not to appoint any other Depositary for the
issuance of American Depositary Receipts so long as The Bank of New York is
acting as Depositary hereunder.
SECTION 5.12 List of Restricted Securities Holders.
From time to time, the Company shall provide to the Depositary a list
setting forth, to the actual knowledge of the Company, those persons or entities
who
30
beneficially own Restricted Securities and the Company shall update that list on
a regular basis. The Company agrees to advise in writing each of the persons or
entities so listed that such Restricted Securities are ineligible for deposit
hereunder. The Depositary may rely on such a list or update but shall not be
liable for any action or omission made in reliance thereon.
ARTICLE 6. AMENDMENT AND TERMINATION
SECTION 6.01 Amendment.
The form of the Receipts and any provisions of this Deposit Agreement
may at any time and from time to time be amended by agreement between the
Company and the Depositary without the consent of Holders or Beneficial Owners
of Receipts in any respect which they may deem necessary or desirable. Any
amendment which shall impose or increase any fees or charges (other than taxes
and other governmental charges, registration fees, cable, telex or facsimile
transmission costs, delivery costs or other such expenses), or which shall
otherwise prejudice any substantial existing right of Holders, shall, however,
not become effective as to outstanding Receipts until the expiration of 30 days
after notice of such amendment shall have been given to the Holders of
outstanding Receipts. Every Holder at the time any amendment so becomes
effective, shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by the Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Holder of any
Receipt to surrender such Receipt and receive therefor the Deposited Securities
represented thereby, except in order to comply with mandatory provisions of
applicable law.
SECTION 6.02 Termination.
The Depositary shall, at any time at the direction of the Company,
terminate this Deposit Agreement by mailing notice of such termination to the
Holders of all Receipts then outstanding at least 30 days prior to the date
fixed in such notice for such termination. The Depositary may likewise terminate
this Deposit Agreement by mailing notice of such termination to the Company and
the Holders of all Receipts then outstanding, if at any time 180 days shall have
expired after the Depositary shall have delivered to the Company a written
notice of its election to resign and a successor depositary shall not have been
appointed and accepted its appointment as provided in Section 5.04; provided,
however, that in the event the Depositary has resigned and a successor
depositary shall not have been appointed prior to the expiration of such 180 day
period, the Depositary shall have the right to terminate this Deposit Agreement
forthwith by mailing such notice in the event it becomes unlawful for The Bank
of New York to continue to act as Depositary hereunder.
To the extent non-R.O.C. persons who are Holders of ADRs are permitted
to withdraw the Shares underlying the ADSs evidenced thereby under applicable
law at
31
the time of the termination of this Agreement, the following paragraph shall
apply to all Holders who may so withdraw such Shares.
On and after the date of termination, the Holder of a Receipt will,
upon (a) surrender of such Receipt at the Corporate Trust Office of the
Depositary, (b) payment of the fee of the Depositary for the surrender of
Receipts referred to in Section 2.05, and (c) payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by the American Depositary Shares
evidenced by such Receipt. If any Receipts shall remain outstanding after the
date of termination, the Depositary thereafter shall discontinue the
registration of transfers of Receipts, shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under this Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights and other property as
provided in this Deposit Agreement, and shall continue to deliver Deposited
Securities, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, in each case, the fee of the Depositary for the surrender of a
Receipt, any expenses for the account of the Holder of such Receipt in
accordance with the terms and conditions of this Deposit Agreement, and any
applicable taxes or governmental charges).
To the extent non-R.O.C. persons who are Holders of ADRs are not
permitted to withdraw the Shares underlying the ADSs evidenced thereby under
applicable law at the time of the termination of this Agreement, the following
paragraph shall apply to all Holders who may not so withdraw such Shares.
If any Receipts shall remain outstanding after the date of
termination, the Depositary thereafter shall discontinue the registration of
transfers of Receipts, shall suspend the distribution of dividends to the
Holders thereof, and shall not give any further notices or perform any further
acts under this Deposit Agreement, except that the Depositary shall continue to
collect dividends and other distributions pertaining to Deposited Securities,
shall sell rights, Shares and other property as provided in this Deposit
Agreement, and shall continue to deliver the net proceeds of the sale of any
rights, Shares or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, in each case, the fee of the Depositary for the
surrender of a Receipt, any expenses for the account of the Holder of such
Receipt in accordance with the terms and conditions of this Deposit Agreement,
and any applicable taxes or governmental charges).
At any time after the expiration of one (1) year from the date of
termination, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, unsegregated and without
liability for interest, for the pro
32
rata benefit of the Holders of Receipts which have not theretofore been
surrendered, such Holders thereupon becoming general creditors of the Depositary
with respect to such net proceeds. After making such sale, the Depositary shall
be discharged from all obligations under this Deposit Agreement, except to
account for such net proceeds and other cash (after deducting, in each case, the
fee of the Depositary for the surrender of a Receipt, any expenses for the
account of the Holder of such Receipt in accordance with the terms and
conditions of this Deposit Agreement, and any applicable taxes or governmental
charges). Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary under Sections 5.08 and 5.09 hereof.
ARTICLE 7. MISCELLANEOUS
SECTION 7.01 Counterparts.
This Deposit Agreement may be executed in any number of counterparts,
each of which shall be deemed an original and all of such counterparts shall
constitute one and the same instrument. Copies of this Deposit Agreement shall
be filed with the Depositary and the Custodians and shall be open to inspection
by any Holder or Beneficial Owner of a Receipt during business hours.
SECTION 7.02 No Third Party Beneficiaries.
This Deposit Agreement is for the exclusive benefit of the parties
hereto and shall not be deemed to give any legal or equitable right, remedy or
claim whatsoever to any other person.
SECTION 7.03 Severability.
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein or therein shall in no way be affected,
prejudiced or disturbed thereby.
SECTION 7.04 Holders and Beneficial Owners as Parties; Binding Effect.
The Holders and Beneficial Owners of Receipts from time to time shall
be parties to this Deposit Agreement and shall be bound by all of the terms and
conditions hereof and of the Receipts by acceptance thereof.
SECTION 7.05 Notices.
Any and all notices to be given to the Company shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to Chunghwa Telecom Co.,
Ltd., 21-3 Hsinyi
33
Road, Section 1, Taipei, Taiwan, R.O.C., Attention: Mr. Hank Wang, Room 109,
Facsimile: 886-2-2344-4581, or any other place to which the Company may have
transferred its principal office.
Any and all notices to be given to the Depositary shall be deemed to
have been duly given if in English and personally delivered or sent by mail or
cable, telex or facsimile transmission confirmed by letter, addressed to The
Bank of New York, 101 Barclay Street, New York, New York 10286, Attention:
American Depositary Receipt Administration, or any other place to which the
Depositary may have transferred its Corporate Trust Office.
Any and all notices to be given to any Holder shall be deemed to have
been duly given if personally delivered or sent by mail or cable, telex or
facsimile transmission confirmed by letter, addressed to such Holder at the
address of such Holder as it appears on the transfer books for Receipts of the
Depositary, or, if such Holder shall have filed with the Depositary a written
request that notices intended for such Holder be mailed to some other address,
at the address designated in such request.
Delivery of a notice sent by mail or cable, telex or facsimile
transmission shall be deemed to be effective at the time when a duly addressed
letter containing the same (or a confirmation thereof in the case of a cable,
telex or facsimile transmission) is deposited, postage prepaid, in a post-office
letter box. The Depositary or the Company may, however, act upon any cable,
telex or facsimile transmission received by it, notwithstanding that such cable,
telex or facsimile transmission shall not subsequently be confirmed by letter as
aforesaid.
SECTION 7.06 Governing Law.
This Deposit Agreement and the Receipts shall be interpreted and all
rights hereunder and thereunder and provisions hereof and thereof shall be
governed by the laws of the State of New York.
SECTION 7.07 Submission to Jurisdiction; Appointment of Agent for Service
of Process.
The Company hereby (i) irrevocably designates and appoints CT
Corporation, 111 8th Avenue, New York, New York 10011, in the State of New York,
as the Company's authorized agent upon which process may be served in any suit
or proceeding arising out of or relating to the Shares or Deposited Securities,
the American Depositary Shares, the Receipts or this Agreement, (ii) consents
and submits to the jurisdiction of any state or federal court in the State of
New York in which any such suit or proceeding may be instituted, and (iii)
agrees that service of process upon said authorized agent shall be deemed in
every respect effective service of process upon the Company in any such suit or
proceeding. The Depositary agrees to provide notice to the Company, in
accordance with Section 7.05 hereof, of any such service of process upon
34
the authorized agent; provided, however, that any action or omission with
respect to such notice shall not in any way invalidate or other constitute a
waiver of such service of process. The Company agrees to deliver to the
Depositary, upon the execution and delivery of this Deposit Agreement, a written
acceptance by such agent of its appointment as such agent. The Company further
agrees to take any and all action, including the filing of any and all such
documents and instruments, as may be necessary to continue such designation and
appointment in full force and effect for so long as any American Depositary
Shares or Receipts remain outstanding or this Agreement remains in force. If for
any reason the authorized agent shall cease to be available to act as such, the
Company agrees to designate a new authorized agent in New York on the terms and
for the purposes of this Section 7.07 and deliver to the Depositary written
notice, in accordance with Section 7.05 hereof, of such new authorized agent,
which notice shall take effect upon the Depositary's receipt of such notice. In
the event the Company fails to continue such designation and appointment in full
force and effect, the Company hereby waives personal service of process upon it
and consents that any such service of process may be made by certified or
registered mail, return receipt requested, directed to the Company at its
address last specified for notices hereunder, and service so made shall be
deemed completed five (5) days after the same shall have been so mailed.
SECTION 7.08 Arbitration; Settlement of Disputes.
In the event the Depositary has is advised that a judgment of a United
States court may not be recognized or enforced in the R.O.C., the following
provisions shall apply:
(i) Any controversy, claim or cause of action brought by any party or
parties hereto against any other party or parties hereto arising out of or
relating to the Deposit Agreement shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American Arbitration Association,
and judgment upon the award rendered by the arbitrators may be entered in any
court having jurisdiction thereof.
(ii) The place of the arbitration shall be the City of New York, State
of New York, United States of America, and the language of the arbitration shall
be English.
(iii) The number of arbitrators shall be three, each of whom shall be
disinterested in the dispute or controversy, shall have no connection with any
party thereto, and shall be an attorney experienced in international securities
transactions. Each party shall appoint one arbitrator and the two arbitrators
shall select a third arbitrator who shall serve as chairperson of the tribunal.
If a dispute, controversy or cause of action shall involve more than two
parties, the parties shall attempt to align themselves in two sides (i.e.,
claimant and respondent), each of which shall appoint one arbitrator as if there
were only two parties to such dispute, controversy or cause of action. If either
or both parties fail to select an arbitrator, or if such alignment (in the event
there is more than two parties) shall not have occurred, within sixty (60)
calendar days after the initiating party serves the arbitration demand or the
two arbitrators fail to select a third arbitrator within
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sixty (60) calendar days of the selection of the second arbitrator, the American
Arbitration Association shall appoint the arbitrator or arbitrators in
accordance with its rules. The parties and the American Arbitration Association
may appoint the arbitrators from among the nationals of any country, whether or
not a party is a national of that country.
(iv) The arbitrators shall have no authority to award damages not
measured by the prevailing party's actual damages and shall have no authority to
award any consequential, special or punitive damages, and may not, in any event,
make any ruling, finding or award that does not conform to the terms and
conditions of the Deposit Agreement.
(v) In the event any third-party action or proceeding is instituted
against the Depositary relating to or arising from any act or failure to act by
the Company, the Company hereby submits to the personal jurisdiction of the
court or administrative agency in which such action or proceeding is brought.
SECTION 7.09 Compliance with U.S. Securities Laws.
Notwithstanding anything in this Deposit Agreement to the contrary,
the Company and the Depositary each agrees that it will not exercise any rights
it has under this Deposit Agreement to permit the withdrawal or delivery of
Deposited Securities in a manner which would violate the U.S. securities laws,
including, but not limited to, Section I.A.(1) of the General Instructions to
the Registration Statement on Form F-6, as amended from time to time, under the
Securities Act of 1933.
SECTION 7.10 Waiver of Immunities.
To the extent that the Company or any of its properties, assets or
revenues may have or may hereafter become entitled to, or have attributed to it,
any right of immunity, on the grounds of sovereignty or otherwise, from any
legal action, suit or proceeding, from the giving of any relief in any respect
thereof, from setoff or counterclaim, from the jurisdiction of any court, from
service of process, from attachment upon or prior to judgment, from attachment
in aid of execution or judgment, or from execution of judgment, or other legal
process or proceeding for the giving of any relief or for the enforcement of any
judgment, in any jurisdiction in which proceedings may at any time be commenced,
with respect to its obligations, liabilities or any other matter under or
arising out of or in connection with the Shares or Deposited Securities, the
American Depositary Shares, the Receipts or this Deposit Agreement, the Company,
to the fullest extent permitted by law, hereby irrevocably and unconditionally
waives, and agrees not to plead or claim, any such immunity and consents to such
relief and enforcement.
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IN WITNESS WHEREOF, CHUNGHWA TELECOM CO., LTD. and THE BANK OF NEW
YORK have duly executed this Deposit Agreement as of the day and year first set
forth above and all Holders and Beneficial Owners shall become parties hereto
upon acceptance by them of Receipts issued in accordance with the terms hereof.
CHUNGHWA TELECOM CO., LTD.
By:
---------------------------------
THE BANK OF NEW YORK,
as Depositary
By:
---------------------------------
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