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Exhibit 10.26
DRAFT OF AUGUST 16, 2000
FOR DISCUSSION PURPOSES ONLY
EXCHANGE AGENCY AGREEMENT
This Exchange Agency Agreement (the Exchange Agency Agreement, together
with the Schedules thereto, in each case as amended from time to time, the
"AGREEMENT") is made as of April ___, 2000, by and between ADVANCED
SEMICONDUCTOR ENGINEERING, INC., a corporation organized under the laws of the
Republic of China ("ASE" or the "COMPANY"), and CITIBANK, N.A., a national
banking association organized and existing under the laws of the United States
of America ("CITIBANK"), in its capacity as exchange agent (in such capacity,
the "EXCHANGE AGENT").
W I T N E S S E T H T H A T:
WHEREAS, the Company and Citibank, N.A., as depositary (the
"DEPOSITARY"), have entered into that certain Amended and Restated Deposit
Agreement, dated as of April __, 2000 (the "DEPOSIT AGREEMENT"), which provides,
inter alia, for the issuance of American Depositary Shares (the "ADSs"),
evidenced by American Depositary Receipts (the "ADRs"), each ADS representing
(a) five (5) common shares, par value NT$10.00 per share (the "SHARES") of the
Company; and
WHEREAS, the Company and Citibank, N.A., as depositary (the "EXISTING
DEPOSITARY"), have entered into a Deposit Agreement, dated as of July 13, 1995,
as amended by Amendment No. 1 to Deposit Agreement, dated as of November 30,
1998 (the "EXISTING DEPOSIT AGREEMENT"), which provides, inter alia, for the
deposit of Shares and the creation of (i) International Global Depositary Shares
(the "INTERNATIONAL GDSs") representing the Shares so deposited (the depositary
receipts facility for the International GDSs, the "INTERNATIONAL GDR FACILITY")
and (ii) Rule 144A Global Depositary Shares (the "RULE 144A GDSs") representing
the Shares so deposited (the depositary receipts facility for the Rule 144A
GDSs, the "RULE 144A GDR FACILITY"); and
WHEREAS, the Company is making an offer to exchange (the "EXCHANGE
OFFER") one (1) ADS for each Rule 144A GDS validly tendered upon the terms and
subject to the conditions set forth in the Exchange Offer Prospectus, dated
________, 2000 (as amended from time to time, the "EXCHANGE OFFER PROSPECTUS"),
a copy of which is attached hereto as SCHEDULE III; and
WHEREAS, the Company has filed with the United States Securities and
Exchange Commission (the "SEC") the Exchange Offer Prospectus under cover of a
Registration Statement on Form F-4 (Reg. No. 333-______), which was declared
effective by the SEC on _________, 2000; and
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WHEREAS, upon the execution of the Deposit Agreement, all International
GDSs issued and outstanding under the International GDR Facility as of the date
thereof will be automatically exchanged for ADSs on a one-for-one basis; and
WHEREAS, the Company intends to list its ADSs for trading on The New
York Stock Exchange, Inc.; and
WHEREAS, the Company wishes to appoint Citibank, upon the terms and
subject to the conditions set forth in this Agreement, to act as Exchange Agent
for Rule 144A GDSs tendered in the Exchange Offer for ADSs; and
WHEREAS, Citibank is willing to act as Exchange Agent upon the terms
and subject to the conditions set forth in this Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. APPOINTMENT AND ACCEPTANCE
a. The Company hereby appoints Citibank to act as "EXCHANGE
AGENT" in connection with the Exchange Offer and as such to
perform, or cause to be performed, the services of the
Exchange Agent identified in Schedule I attached hereto (the
"SERVICES SCHEDULE").
b. Citibank hereby accepts the appointment by the Company to act
as Exchange Agent solely within the terms and subject to the
conditions of this Agreement (Citibank in such capacity, the
"EXCHANGE AGENT").
2. SEGREGATION OF PROPERTY.
a. The Exchange Agent shall, in accordance with Rule 17Ad-14
promulgated under the Securities Exchange Act of 1934, as
amended, and the terms and conditions of the Exchange Offer,
establish the requisite number of account(s) (collectively,
the "DTC BOOK-ENTRY ACCOUNT(S)") at The Depository Trust
Company ("DTC") as soon as possible after the effective date
of this Agreement, but in any event within two (2) business
days after the commencement of the Exchange Offer, for the
purpose of receiving Rule 144A GDSs delivered to the Exchange
Agent pursuant to the Exchange Offer. The Exchange Agent shall
provide the means for any financial institution that is a
Participant in DTC to make book-entry delivery of Rule 144A
GDSs into the DTC Book-Entry Account in accordance with the
procedures for transfer through DTC. In accordance with the
customary procedures of DTC Participants, the Exchange Agent
shall promptly notify DTC
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Participants through the facilities of DTC of the identity of
the DTC Book-Entry Accounts established in connection with
the Exchange Offer.
b. The Exchange Agent hereby agrees that all securities, funds or
other assets (collectively, the "PROPERTY") deposited with or
received by it in such capacity under the Exchange Offer
constitute a special, segregated account, held solely for the
benefit of the Company and the tendering holders and
beneficial owners of Rule 144A GDSs, as their interests may
appear within the terms of the Exchange Offer. Nothing herein
shall constitute the Exchange Agent a fiduciary with respect
to the Property.
3. DELEGATION OF DUTIES
The Exchange Agent may perform its duties hereunder through any agent
appointed for such purpose, including, but not limited to, the First
Chicago Trust division of Equiserve, L.P. ("FIRST CHICAGO"). Such
duties may be performed by First Chicago in the State of New Jersey.
However, Citibank shall remain a primary obligor with respect to such
delegated duties.
4. BROKERAGE ARRANGEMENTS
The Exchange Agent will appoint a U.S. broker dealer (the "U.S.
BROKER") to execute the sale of the aggregated number of fractional
ADSs resulting from the exchange of Rule 144A GDSs for ADSs (if any)
pursuant to the terms of the Exchange Offer. The U.S. Broker shall be
instructed to sell such ADSs as agent for the holders of Rule 144A GDSs
entitled to receive the proceeds from the sale of ADSs. The U.S. Broker
so appointed may be an affiliate of Citibank or of First Chicago. The
fees and commissions of the U.S. Broker shall be payable out of the
proceeds from the sale of the ADSs.
5. RESPONSIBILITY AND LIABILITY
a. The duties, responsibilities and obligations of Citibank in
its capacity as Exchange Agent shall be limited to those
expressly set forth in this Agreement and no duties,
responsibilities or obligations of the Exchange Agent shall be
inferred or implied under the terms of this Agreement,
provided, however, that in no way will the general duty to act
in good faith be discharged by the foregoing. Citibank in its
capacity as Exchange Agent shall not be subject to, nor be
required to comply with, (i) any provision of any other
agreement or any instrument to which the Company is a party or
to which the Company is subject, even though reference thereto
may be made in this Agreement or in any document provided by
the Company and its advisors to the Exchange Agent, or (ii)
any direction or instruction from the Company or an entity
acting on its behalf except as contemplated in this Agreement.
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b. Citibank shall not be deemed to make any representations and
shall have no responsibilities as to the validity,
sufficiency, value, or genuineness of any Rule 144A GDSs
tendered to the Exchange Agent and will not be required to
make any, and will make no, representations as to, or be
responsible for, the validity, sufficiency, legality, value,
or genuineness of the Exchange Offer and the ADSs to be issued
in connection therewith;
c. Citibank does not, and shall not be deemed to, assume any
responsibility or incur any liability for the actions or
omissions to act of any book-entry transfer facility or
clearing agency;
d. Citibank shall have no obligation to, and shall not, deliver
any ADSs under the terms of the Exchange Offer, unless it
shall have received confirmation (i) from the Company that it
has accepted the Rule 144A GDSs tendered and that all
conditions of the Exchange Offer have been satisfied or
validly waived and (ii) that the requisite number of Shares to
be represented by the ADSs to be issued in the Exchange Offer
have been deposited with the custodian under the Deposit
Agreement (the "CUSTODIAN");
e. Citibank may rely on, and shall be fully authorized and
protected in acting or not acting, in good faith in reliance
upon, any certificate, instrument, instruction, opinion,
notice, letter, telegram, telex, facsimile transmission,
electronic message (including without limitation, a message
received through DTC's ATOP System) or other document or
instrument delivered to it and believed by it to be genuine.
Citibank may rely on and shall be fully authorized and
protected in acting or not acting upon the written and
electronic instructions, with respect to any matter relating
to its actions covered by this Agreement (or supplementing or
qualifying any such actions), of Authorized Officers of the
Company (as set forth in Schedule IV hereto, the
"AUTHORIZED OFFICERS");
f. Citibank shall not be called upon at any time to advise any
person acting under the Exchange Offer as to the wisdom of
acting thereunder or as to the market value of any security
tendered or surrendered thereunder. Citibank shall not be
liable or responsible for any recital or statement contained
in the Exchange Offer materials or any other documents
relating thereto;
g. Citibank shall not be liable or responsible for any delay,
failure, malfunction interruption or error in the transmission
or receipt of communications or messages through electronic
means (including, without limitation, the message systems of
the applicable book-entry transfer facility);
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h. Citibank shall not be liable or responsible for any failure by
the Company to comply with any of its obligations relating to
the Exchange Offer, including, without limitation, obligations
under applicable securities laws; and
i. Citibank is not required under the terms of this Agreement,
and nothing contained in this Agreement shall be interpreted
in any way to imply any obligation of Citibank, to expend or
risk any of its own funds or to make any financial
accommodations in the performance of its duties hereunder.
Citibank is not authorized, and shall have no obligation, to
pay any brokers', dealers', or soliciting fees to any person,
except for commissions of the U.S. Broker payable on the sale
of the aggregated number of fractional ADSs (if any), which
commissions shall be payable from the proceeds of such sale.
6. TERM OF AGREEMENT
a. This Agreement shall terminate upon the earlier to occur of
(i) termination of this Agreement by mutual agreement of
Citibank and the Company hereto or (ii) termination by the
Company of the Exchange Offer, or (iii) _________, 2000. Upon
termination of this Agreement, Citibank and the Company shall
have no further duties hereunder except as otherwise set forth
in the following provisions of this Section 6.
b. Upon termination of this Agreement, the Exchange Agent shall
promptly deliver to the holders entitled thereto and to the
Company, as their respective rights may exist under the terms
of the Exchange Offer any Property held under the terms
hereof. Upon termination of this Agreement, copies of all
information (including all tender documentation, telegrams,
facsimile transmissions and other material submitted in
connection with the Exchange Offer) maintained by the Exchange
Agent for the Company under this Agreement shall be delivered
to the Company upon request.
c. Notwithstanding anything else contained in this Agreement, the
terms of Sections 7, 8, 9, 10 and 12 shall survive termination
of this Agreement.
7. REPRESENTATIONS AND WARRANTIES
The Company represents and warrants that: (i) it is duly incorporated,
validly existing and in good standing under the laws of the Republic of
China, (ii) the making and consummation of the Exchange Offer and the
performance of all transactions contemplated thereby have been duly
authorized by all necessary corporate action and will not result in a
breach of, or constitute a default under, the Articles of Incorporation
of the Company or any indenture, agreement or instrument to which it is
a party or is bound, (iii) this Agreement has been duly executed and
delivered by the Company by an officer
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of the Company hereunto duly authorized and constitutes its legal,
valid, binding and enforceable obligation, (iv) the Exchange Offer does
comply, and will be conducted by the Company in compliance, with all
applicable requirements of law (including, without limitation, the
United States and Republic of China securities laws) in connection with
the Exchange Offer, (v) it has not made to the SEC, to the Republic of
China Securities and Futures Commission (the "SFC"), to the Taiwan
Stock Exchange or any other regulatory authority any representations in
respect of the role of Citibank as Exchange Agent which have not been
disclosed in writing to Citibank, and it shall not make any such
representations without the prior written consent of Citibank, (vii) it
has obtained, prior to the date hereof, all requisite approvals from
the SEC, the SFC and the Taiwan Stock Exchange and any other applicable
regulatory authority to conduct the Exchange Offer, (viii) to the best
of its knowledge (after due inquiry), there is no litigation pending or
threatened against it which could adversely affect in a material way
the Company's ability to perform its obligations hereunder or otherwise
in connection with the Exchange Offer and (ix) any and all registration
statements applicable to the issuance of ADSs in exchange for Rule 144A
GDSs have been declared effective by the SEC and no stop orders are in
effect with respect to any such registration statements as of the date
hereof.
8. INDEMNIFICATION
The Company agrees to indemnify and defend Citibank and to hold
Citibank harmless (including any of the employees, officers, directors,
agents, subsidiaries and affiliates or any of them, an "INDEMNITEE"
hereunder) from and against any claim, action, judgement, damage, loss,
liability, cost, securities transfer tax and expense (including,
without limitation, any reasonable expenses and fees of counsel) (each
a "LOSS") which may be incurred, paid or suffered by Citibank or to
which Citibank may become subject (a) as a result of any action taken,
or any action not taken, in each case, in good faith upon the
instructions of an Authorized Officer of the Company, (b) arising out
of, or in connection with, any actions taken within the terms of this
Agreement, or (c) as a result of defending itself against any claim
involving the Exchange Offer (including, without limitation, any claim
based on any alleged untrue statements contained in any materials
distributed by or on behalf of the Company in connection with the
Exchange Offer or the omission therefrom of any fact necessary to make
the statements contained therein not misleading). Provided, however,
that, Citibank shall not be entitled to any indemnification under the
terms hereof if the Loss arises from its own gross negligence or bad
faith in the performance of, or its willful failure to perform, its
obligations hereunder. Citibank agrees to notify the Company in writing
of each assertion of a claim against any Indemnitee under this Section
8 or any action commenced against any such party, within ten (10) New
York Business Days (as defined in Schedule I below) after the receipt
of notice thereof by Citibank. The Exchange Agent agrees to indemnify
the Company and its directors, employees, agents and affiliates and
hold them harmless from and against any loss, liability or expense
(including reasonable counsel fees and expenses) incurred as a direct
result of the gross negligence, bad faith or willful misconduct on the
part of the
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Exchange Agent in (a) administration of its duties hereunder or (b) any
action taken or omitted to be taken hereunder. The provisions of this
Section 8 shall survive the termination of this Agreement.
9. FEES
For the services provided hereunder the Company agrees to pay to
Citibank the fees and reimbursements set forth in Fee Schedule attached
hereto as Schedule II (the "FEE SCHEDULE"). All payments due to
Citibank hereunder shall be remitted within 20 days of the receipt of
invoice. If any fees, expenses or costs incurred by, or any obligations
owed to, Citibank under the terms of this Agreement are not paid in
full by the Company within 30 calendar days from the date of mailing of
the applicable invoice or demand for payment, Citibank may reimburse
itself from, and set-off against, any payments payable from time to
time by Citibank, N.A., as Depositary, in connection with the
administration of the ADR Facility established under the terms of the
Deposit Agreement (as amended from time to time). The payment
obligations of the Company hereunder shall survive the termination of
this Agreement.
10. INTERPRETATION; DISPUTES; JUDGEMENTS AGAINST PROPERTY; LITIGATION
a. Interpretation.
In the event Citibank has any question with respect to the
proper interpretation of this Agreement or the duties of any
party hereunder or the rights of (i) the Company or (ii) any
tendering holder of Rule 144A GDSs under the Exchange Offer,
Citibank may apply to the Company for instructions with
respect thereto, and such application may set forth in writing
any action proposed to be taken or omitted by Citibank and the
date(s) on or after which such action or omission will be
taken, and Citibank will not be liable for any action or
omission in accordance with a proposal included in any such
application on or after the date(s) specified therein (which
date(s) shall not, without the Company's consent, be less that
five (5) New York Business Days after Citibank makes such
application) unless, prior to taking or omitting to take such
action, Citibank has received oral or written instructions
from the Company in response to such application specifying
the action to be taken or omitted. Any oral instructions from
the Company shall be confirmed in writing via facsimile or
other means of electronic transmission from the Company to
Citibank or from Citibank to the Company by no later than the
close of the New York Business Day on which such oral
instructions are received by Citibank. Notwithstanding the
foregoing, Citibank shall promptly take such steps as it shall
deem reasonable and appropriate to cause any person tendering
Rule 144A GDSs to correct any defect that exists in respect of
such surrender before applying to the Company hereunder.
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b. Disputes.
In the event Citibank becomes aware of any dispute among any
of the Company and any holders of Rule 144A GDSs with respect
to the proper interpretation of this Agreement, or the duties
of any party hereunder, or the rights or obligations of the
Company or of any tendering holders of ADSs, Citibank shall
not be required to act and shall not be held liable or
responsible for its refusal to act until (a) the dispute has
been judicially settled (and Citibank may, if in its sole
discretion it deems so advisable, but shall not be obligated
to, file a suit in interpleader or for a declaratory judgement
for such purpose) by final judgement rendered by a court of
competent jurisdiction, binding on all parties interested in
the matter and which is no longer subject to review or appeal,
or (b) the dispute has been settled by a written document in
form and substance reasonably satisfactory to Citibank and
executed by the Company and binding upon all tendering holders
of Rule 144A GDSs interested in the matter.
c. Judgements; Court Orders.
If any Property is at any time attached, garnished, or levied
upon under any court order or in case the payment, assignment,
transfer, conveyance, or delivery of any such Property shall
be stayed or enjoined by any court order, or if any order,
judgement or decree shall be made or entered by any court
affecting such Property or any part thereof, then and in any
such event Citibank shall be authorized, in its sole
discretion, to rely upon and comply with any such order,
judgement, or decree which Citibank has been advised in
writing by legal counsel of its own choosing is binding upon
it. If Citibank complies with any such order, judgement, or
decree, it shall not be liable to any person or entity by
reason of such compliance even though such order, judgement,
or decree may be subsequently reversed, modified, annulled,
set aside, or vacated.
d. Defending Litigation.
The Company agrees to defend any and all third party claims
and legal actions and proceedings against Citibank and/or any
Indemnitee arising from its role as Exchange Agent for the
Exchange Offer under the terms of this Agreement and agrees to
appoint counsel reasonably satisfactory to the Citibank for
such purpose. Citibank shall have the right to participate in
the defense of any such claims, actions and proceedings and to
assume control of all defenses pertaining to Citibank and/or
any Indemnitee. Except as specifically set forth in the second
following sentence below, all liabilities, costs and
reasonable expenses incurred by Citibank in connection with
any such claims, actions or proceedings shall be covered by
the indemnification obligations of the Company under the terms
of this Agreement. Citibank shall be entitled to employ
separate counsel when so
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participating in the defense of any such claims, actions or
proceedings. The costs and reasonable expenses of counsel
employed by Citibank shall be borne by the Company in all
cases where (i) the employment thereof at the expense of the
Company has been specifically authorized by the Company in
writing, (ii) Citibank and/or any Indemnitee shall have been
advised by counsel that there may be one or more legal
defenses available to them which are different from or
additional to those available to the Company and in the
reasonable judgement of such counsel it would be inappropriate
for the same counsel to represent both the Company and
Citibank and/or any Indemnitee and it is therefore advisable
for Citibank and/or any such Indemnitee to employ separate
counsel to assert such additional or different defenses or
(iii) the Company has failed to assume the defense of such
action, suit, proceeding or claim. No settlement shall be
reached in any such claim, action or proceeding without the
consent of Citibank (which consent shall not be unreasonably
withheld).
e. Instituting Lawsuits.
The Company hereby agrees to assert all claims and institute
all legal actions and proceedings against third parties deemed
necessary and appropriate (in the reasonable opinion of
Company) in connection with the Exchange Offer as contemplated
in this Agreement and agrees to appoint counsel reasonably
satisfactory for such purpose. If any such action or
proceeding pertains to the actions of the Exchange Agent under
the terms hereof, Citibank shall have the right to participate
in the assertion of such claims and the institution of such
legal actions and proceedings. All liabilities, costs and
reasonable expenses incurred by Citibank in connection with
any such claims, actions or proceedings shall be covered by
the indemnifications of the Company under the terms of this
Agreement. Citibank shall be entitled to employ separate
counsel when so participating in the assertion of claims or
institution of legal actions or proceedings if (i) it would be
inappropriate for the same counsel to represent both the
Company and Citibank and it is therefore advisable for
Citibank to employ separate counsel to assert such additional
or different defenses or (ii) the Company has failed to assume
the defense of such action, suit, proceeding or claim. No
settlement shall be reached in any such action or proceeding
or with respect to any such claim without the consent of
Citibank (which consent shall not be unreasonably withheld) if
such claim directly affects Citibank in its capacity as
Exchange Agent under the Exchange Offer.
The provisions of this Section 10 shall survive the
termination of this Agreement.
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11. AMENDMENTS AND ASSIGNMENTS
a. The terms of this Agreement may be waived, amended or
supplemented only by agreement in writing duly executed by all
parties hereto. The rights and remedies conferred upon the
parties hereto shall be cumulative and the exercise or waiver
of any such right or remedy shall not preclude or inhibit the
exercise of any additional rights or remedies, nor the
subsequent exercise of such right or remedy.
b. None of the rights and obligations of the parties under this
Agreement may be assigned except (i) upon receipt of prior
written consent of the other parties to this Agreement, or
(ii) as otherwise specifically permitted by Section 3. Any
assignment or delegation in violation of this Section 11(b)
shall be null and void.
12. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York (without reference to the principles
of choice of law thereof). The parties agree that the federal or state
courts located in the Borough of Manhattan in the City of New York
shall have exclusive jurisdiction to hear and determine any suit,
action or proceeding and to settle any disputes between parties
relating to this Agreement and for such purpose each of the parties
irrevocably submits to the jurisdiction of such courts.
The Company hereby irrevocably designates, appoints and empowers CT
Corporation System now at 111 Eighth Avenue, New York, New York 10011,
as its authorized agent to receive and accept for and on its behalf,
and on behalf of its properties, assets and revenues, service in any
manner permitted by law of any and all legal process, summons, notices
and documents that may be served in any suit, action or proceeding
brought by Citibank against the Company in any court described in the
preceding sentence (such agent and any successor or other agent for
service of process appointed by, or acting on behalf of, the Company,
the "Agent"). If for any reason the Agent shall cease to be available
to act, or ceases to act, as such, the Company agrees to designate and
maintain a new agent in New York on the terms and for the purposes of
this Section 12 reasonably satisfactory to Citibank. The Company
further hereby irrevocably consents and agrees to the service of any
and all legal process, summons, notices and documents in any suit,
action or proceeding against it under the terms hereof, by service in
any manner permitted by law, upon the Agent (whether or not the
appointment of such Agent shall for any reason prove to be ineffective
or such Agent shall fail to accept or acknowledge such service), with a
copy mailed to the Company (by registered or certified mail, postage
prepaid, to the address last specified for notices hereunder). If for
any reason whatsoever no Agent is acting in the State of New York, the
Company consents to service of any and all legal process, summons,
notices and documents by certified or registered mail, return receipt
requested, directed to it at the address last specified for notices
hereunder. The Company hereby irrevocably and unconditionally waives,
and agrees not to plead or claim
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in any court, any objection that it may now or hereafter have to object
to service of any and all legal process, summons, notices and documents
in the manner contemplated herein. In addition, the Company irrevocably
and unconditionally waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of venue of
any actions, suits or proceedings brought in any court as provided
herein, and hereby further irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an
inconvenient forum.
Notwithstanding the foregoing, Citibank and the Company unconditionally
agree that in the event that any holder or beneficial owner of ADSs,
any participant in any book-entry transfer facility or any other person
brings a suit, action or proceeding against (a) the Company, (b)
Citibank or (c) against the Company and Citibank, in any state or
federal court of the United States, and Citibank or the Company have
any claim, for indemnification or otherwise, against each other arising
out of the subject matter of such suit, action or proceeding, then the
Company and Citibank may pursue such claim against each other in the
state or federal court in the United States in which such suit, action,
or proceeding is pending and, for such purposes, the Company and
Citibank irrevocably submit to the non-exclusive jurisdiction of such
courts. The consent in the immediately preceding paragraph is to be
strictly construed in accordance with its terms and shall not be deemed
a waiver by (a) the Company of any jurisdictional or venue (including
forum non conveniens) defenses it may have with respect to any suit or
proceeding brought by any person other than Citibank or with respect to
any claim or course of action asserted by Citibank that does not arise
under this Agreement or (b) Citibank of any jurisdictional or venue
(including forum non conveniens) defenses it may have with respect to
any suit or proceeding brought by any person other than the Company or
with respect to any claim or course of action asserted by the Company
that does not arise under this Agreement.
The Company irrevocably and unconditionally waives, to the fullest
extent permitted by law, and agrees not to plead or claim, any right of
immunity from legal action, suit or proceeding, from set-off 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, from execution of judgment, or from any
other legal process or proceeding for the giving of any relief or for
the enforcement of any judgment, and consents to such relief and
enforcement against it, its assets and its revenues in any
jurisdiction, in each case with respect to any matter arising out of,
or in connection with, this Agreement.
The provisions of this Section 12 shall survive any termination of this
Agreement.
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13. PARTIAL INVALIDITY
In the event that any provision of this Agreement or the application
thereof to any person or circumstances shall be determined by a court
of proper jurisdiction to be invalid or unenforceable to any extent,
the remaining provisions of this Agreement, and the application of such
provisions to persons or circumstances other than those as to which
they are held invalid or unenforceable, shall be unaffected thereby and
such provisions shall be valid and enforced to the fullest extent
permitted by law in such jurisdiction so long as the fundamental
relationships among the parties hereunder are not altered.
14. CONFLICTS AND BENEFITS
a. The Company recognizes that Citibank and any of its direct or
indirect affiliates (collectively, the "Citigroup") may engage
in transactions and/or businesses adverse to the Company or in
which parties adverse to the Company may have interests.
Nothing in this Agreement shall (i) preclude Citibank or any
other member of the Citigroup from engaging in such
transactions or businesses, (ii) obligate Citibank or any
other member of the Citigroup to (x) disclose such
transactions and/or business to the Company, or (y) account
for any profit made or payment received in, or as a part of,
such transactions and/or business.
b. Nothing in this Agreement is intended, nor shall anything
contained in this Agreement be deemed, to constitute (i) a
waiver of any right under, or an amendment of, any term of any
other agreement between the Company and Citibank or any other
member of the Citigroup, or any instrument from the Company to
Citibank or any other member of the Citigroup, unless such
waiver or amendment is specifically acknowledged in writing.
c. Nothing in this Agreement is intended to benefit any persons
not specifically identified herein. Nothing herein shall be
deemed to (i) give rise to a partnership or joint venture or
(ii) establish a fiduciary or similar relationship, among the
parties hereto.
15. FORCE MAJEURE/DAMAGES
Citibank shall be excused from performance of its obligations under
this Agreement and shall not be liable for any losses, damages, or
expenses, in each case to the extent caused by the occurrence of any
contingency beyond its control, including, without limitation,
nationalization, expropriations, currency restrictions, work stoppages,
strikes, fire, civil unrest, insurrections, revolutions, riots,
rebellions, acts of terrorism, explosions, floods, storms, computer
failures, acts of war, acts of God or similar occurrences. Nor shall
Citibank incur any liability if it shall be prevented or forbidden
from, or delayed in, doing
12
<PAGE> 13
or performing any act or duty required by the terms of this Agreement,
by reason of any provision of any present or future law or regulation
of the United States, the Republic of China or any other country, or of
any other governmental authority or regulatory authority or stock
exchange, or on account of the possible criminal or civil penalties or
restraint. Citibank shall not be responsible for any consequential or
punitive damages for any breach of the terms of this Agreement.
16. ENTIRE AGREEMENT
This Agreement (including the Schedules hereto) sets forth the entire
understanding of the parties in respect of the subject matter hereof
and supersedes any and all prior agreements, arrangements and
understandings relating thereto.
17. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
shall be an original, but all of which shall constitute one and the
same agreement.
18. TITLES
a. All references in this Agreement to exhibits, articles,
sections, subsections, and other subdivisions refer to the
exhibits, articles, sections, subsections and other
subdivisions of this Agreement unless expressly provided
otherwise. The words "this Agreement", "herein", "hereof",
"hereby", "hereunder" and words of similar import refer to the
Agreement as a whole as in effect between the parties and not
to any particular subdivision unless expressly so limited.
Pronouns in masculine, feminine and neuter gender shall be
construed to include any other gender, and words in the
singular form shall be construed to include the plural and
vice versa unless the context otherwise requires.
b. Titles to sections of this Agreement are included for
convenience only and shall be disregarded in construing the
language contained in this Agreement.
19. NOTICES
a. Any notice desired or required to be given by one party to the
other in accordance with the provisions of this Agreement may
be given in any of the following manners:
(i) by facsimile or other similar form of
telecommunications sent by one party to the other at
its address from time to time notified (in accordance
with the terms hereof) for the receipt of such
communications, in which event such notice shall be
deemed to have been received at the time of receipt
as recorded by such method of communication. A copy
of every such notice
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<PAGE> 14
shall be sent in writing by pre-paid airmail
registered post to the party to whom it is addressed
at the address referred to below but the receipt of
such copy shall not be a condition to due notice
having been given;
(ii) in writing sent by pre-paid airmail registered post
at the address mentioned below, in which event such
notice shall be deemed to have been delivered five
business days after the date of posting;
(iii) in writing by personal delivery at the address of the
party to whom it is addressed as set out below, in
which event such notice shall be deemed to have been
received at the time of delivery.
b. Each party shall from time to time notify the other of its
addresses for the receipt of facsimile or other forms of
telecommunications and for notices in writing.
c. Until the Company shall notify Citibank to the contrary in
writing, the address of the Company shall be as follows:
(i) for communications by telephone: 011-8867-361-7131
(ii) for communications by facsimile: 011-8867-361-3094
(iii) for communications in writing:
Advanced Semiconductor Engineering, Inc.
26 Chin Third Road
Nantze Export Processing Zone
Kaohsiung, Taiwan
Republic of China
Attn.: Chairman of the Board of Directors
d. Until Citibank shall notify the Company to the contrary in
writing, the address of Citibank shall be as follows:
(iv) for communications by telephone: 212-657-5100
(v) for communications by facsimile: 212-825-5398
(vi) for communications in writing:
Citibank, N.A.
111 Wall Street, 20th Floor
New York, NY 10043
Attn: ADR Department
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<PAGE> 15
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date set forth above by representatives
thereunto duly authorized.
ADVANCED SEMICONDUCTOR ENGINEERING, INC.
By: _______________________________________________
Name:
Title:
CITIBANK, N.A.
By: _______________________________________________
Name:
Title:
Attachments
Schedule I Services Schedule
Schedule II Fee Schedule
Schedule III Exchange Offer Documentation
Schedule IV Authorized Officers of the Company
15
<PAGE> 16
SCHEDULE I
TO
THE EXCHANGE AGENCY AGREEMENT,
DATED AS OF _________, 2000 (THE "AGREEMENT"),
BY AND BETWEEN
ADVANCED SEMICONDUCTOR ENGINEERING, INC. AND CITIBANK, N.A.
--------------------
SERVICES SCHEDULE
--------------------
Unless otherwise set forth herein, all capitalized terms used but not
otherwise defined herein shall have the meaning given to such terms in the
Agreement. All terms and conditions of the Agreement are incorporated herein by
reference.
A. DEFINITIONS
"AGENT'S MESSAGE" shall mean, with respect to tenders of Rule 144A
GDSs, a message transmitted through DTC (as defined
below) and forming a part of the DTC confirmation
system to, and received by, the Exchange Agent that
states that DTC has received an express
acknowledgment from a Participant (as defined below)
tendering the Rule 144A GDSs that such Participant
has received the Exchange Offer Prospectus and agrees
to be bound by the terms of the Exchange Offer, as
set forth in the Exchange Offer Prospectus, for the
tender of each of the Rule 144A GDSs.
"AUTHORIZED OFFICERS" shall mean any of the persons authorized to act for
the Company under this Agreement whose name and
specimen signature is set forth in Schedule IV to the
Agreement or in any certificate from time to time
issued to Citibank by the Secretary or Assistant
Secretary of the Company indicating that such person
is authorized to act for, and on behalf of, the
Company under the Agreement.
"BOOK-ENTRY TRANSFER
FACILITY" shall mean DTC (as defined below) which provides a
means for book-entry delivery of Rule 144A GDSs and
for the delivery of electronic messages by its
Participants (as defined below).
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<PAGE> 17
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or a
bank holiday in either New York City or the Republic
of China, and consists of the time period from 12:01
a.m. through 12:00 midnight, New York City time.
"DTC" shall mean The Depository Trust Company or any other
successor institution providing facilities performing
substantially similar functions.
"EXISTING DEPOSIT
AGREEMENT" shall mean the Deposit Agreement, dated as of July
13, 1995, as amended by Amendment No. 1 to Deposit
Agreement, dated as of November 30, 1998, which
provides, inter alia, for the deposit of Shares and
the creation of Rule 144A GDSs representing the
Shares so deposited.
"EXISTING DEPOSITARY" Citibank, N.A., as the Existing Depositary under the
terms of the Existing Deposit Agreement.
"EXPIRATION DATE" shall mean, in respect of the Exchange Offer, _____
__.m., New York City time on ________, __________,
2000, unless extended by the Company.
"NEW YORK BUSINESS DAY" shall mean any day other than a Saturday, Sunday or a
bank holiday in New York City, consisting of the time
period from 12:01 a.m. through 12:00 midnight, New
York City time.
"PARTICIPANT" shall mean, with respect to Rule 144A GDSs, any
broker, dealer, bank, trust company or other nominee
shown in DTC's records as having Rule 144A GDSs
credited to its DTC account.
B. SERVICES
Citibank, as the Exchange Agent under the Agreement, shall provide the
following services:
I. MAILING OF EXCHANGE OFFER MATERIALS:
The Exchange Agent shall make available copies of the Exchange Offer
Prospectus and the applicable related materials provided to it by the
Company and shall, promptly upon commencement of the Exchange Offer, mail or
deliver all such materials to each Participant in DTC holding Rule 144A GDSs
on the Business Day preceding the commencement of the Exchange Offer.
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<PAGE> 18
II. TENDERING RULE 144A GDSs.
The Exchange Agent shall provide the means by which holders of Rule 144A
GDSs may tender their Rule 144A GDSs to the Exchange Agent by delivery to
the Exchange Agent of (i) an Agent's Message and (ii) the Rule 144A GDSs by
means of book-entry transfer into the DTC Book-Entry Account maintained by
the Exchange Agent for such purpose, in each case on or prior to the
Expiration Date.
III. GUARANTEED DELIVERY PROCEDURES.
The Exchange Agent will establish procedures ("Guaranteed Delivery
Procedures") pursuant to which Rule 144A GDSs may be tendered pursuant to
the Exchange Offer in cases where (i) Rule 144A GDSs may not be immediately
available or (ii) the procedures for book-entry transfer through DTC cannot
be completed on a timely basis. The Exchange Agent shall, as part of the
Guaranteed Delivery Procedures, require (a) the delivery of a notice of
guaranteed delivery transmitted to the Exchange Agent by means of an Agent's
Message through the book-entry transfer facilities of DTC and (b) the valid
tender of he Rule 144A GDSs to the Exchange Agent within three (3) New York
Stock Exchange trading days upon the terms set forth in Article II above.
IV. PROCEDURES FOR WITHDRAWAL.
The Exchange Agent will make available the withdrawal procedures established
by the DTC Book-Entry Transfer Facility by which Rule 144A GDSs previously
tendered via the DTC Book-Entry Transfer Facility to the Exchange Agent by
an Agent's Message may be properly withdrawn at any time on or prior to the
Expiration Date of the Exchange Offer.
V. EXAMINATION OF TENDERS.
A. Examination of Tenders.
The Exchange Agent shall examine any document delivered to it in connection
with tenders of Rule 144A GDSs to ascertain whether (i) the Agent's Message
has been duly and timely transmitted to the Exchange Agent by the Book-Entry
Transfer Facility, and (ii) tendered Rule 144A GDSs have otherwise been
validly tendered and not properly withdrawn, in each case on or prior to the
Expiration Date.
B. Irregular Tenders.
In the event the Exchange Agent determines that any Agent's Message or any
other required document does not appear to have been properly completed or
executed, or that
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<PAGE> 19
any other irregularity in connection with the tender appears to exist,
the Exchange Agent shall endeavor promptly to inform the DTC
Participant tendering the Rule 144A GDSs of the need for the
fulfillment of all the requirements and to take any other action as may
be necessary or advisable to cause such irregularity to be corrected.
All questions as to the form of documents, validity, form, eligibility
(including timeliness of receipt) and acceptance for exchange of any
tender of Rule 144A GDSs shall be determined by the Exchange Agent on
behalf of the Company in the first instance. If irregularities with
respect to any tenders have been identified by the Exchange Agent and
remain uncured, the Exchange Agent shall refer final determination to
the Company by promptly sending to the Company any document or copy
thereof which in its judgment would prevent acceptance thereof, and the
Company shall make the final decision whether or not to accept such
tender. Upon acceptance by the Company of such Rule 144A GDSs tendered
pursuant to the Exchange Offer, the Company shall confirm such
acceptance in writing to the Exchange Agent. In the event that the
Company does not accept a tender, the Company will provide to the
Exchange Agent a letter explaining the reason for the non-acceptance.
Defective submissions shall be deemed validly made only at the time the
irregularities have been cured to the satisfaction of, or waived by,
the Company. If any such irregularities are neither so cured nor
waived, tendered Rule 144A GDSs which are the object of the defective
submission shall be returned to the DTC Participant, together with any
other documents received in connection therewith and the letter that
the Company will have furnished to the Exchange Agent explaining the
reasons for the return of such Rule 144A GDSs and the other documents.
C. Return of Rule 144A GDSs.
Whenever the Company does not accept a tender of Rule 144A GDSs or Rule
144A GDSs previously tendered are properly withdrawn in accordance with
the procedures for withdrawal set forth in the Exchange Offer
Prospectus, the Exchange Agent shall promptly cause such Rule 144A GDSs
to be delivered to the account of the tendering DTC Participant,
together with any other documents received by the Exchange Agent and,
in the case of non-acceptance of irregularly tendered Rule 144A GDSs,
the letter from the Company explaining the reasons for such
non-acceptance.
VI. DELIVERY OF SHARES REPRESENTED BY RULE 144A GDSs DELIVERED FOR TENDER.
Promptly after the Expiration Date, the Exchange Agent shall instruct
the custodian under the Existing Deposit Agreement to deliver to the
Company the Shares represented by the Rule 144A GDSs validly tendered
to the Exchange Agent. Upon receipt of confirmation from the Company of
its acceptance of the Rule 144A GDSs validly tendered in the Exchange
Offer prior to the Expiration Date, the Exchange Agent shall cancel the
Rule 144A GDSs so tendered and proceed with the delivery of ADSs upon
the terms and conditions described below.
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<PAGE> 20
VII. REPORTS AND RETENTION OF RECORDS.
A. Reports.
The Exchange Agent shall provide the Company with a list of the names
of all Participants holding Rule 144A GDSs in their DTC accounts,
together with the applicable number of Rule 144A GDSs held as of the
close of business on the Business Day preceding the date of
commencement of the Exchange Offer (as such date is set forth in the
Exchange Offer Prospectus).
The Exchange Agent shall provide to the Company written reports by
facsimile transmission or other acceptable form of delivery, weekly (or
upon one full Business Day's advance notice), until the final week of
the Exchange Offer, whereupon the Exchange Agent shall provide daily
reports, to a person designated by the Company specifying the
following:
(i) the numbers of Rule 144A GDSs validly tendered during the preceding
Business Day; and
(ii) the numbers of Rule 144A GDSs validly tendered and not properly
withdrawn, in each case, since the commencement of the Exchange
Offer.
B. Retention of Records.
The Exchange Agent shall retain records of each electronic message and
any other materials relating to the Exchange Offer submitted to the
Exchange Agent by the Company, any Participant or any holder of Rule
144A GDSs.
VIII. DELIVERY OF ADSs.
The Exchange Agent shall deliver or cause to be delivered by means of
book-entry delivery through the DTC Book-Entry Transfer Facility the
applicable number of whole ADSs to the accounts of the DTC Participants
who validly tendered Rule 144A GDSs on behalf of a holder of Rule 144A
GDSs, upon receipt of (i) confirmation from the Company that the Rule
144A GDSs previously tendered to the Exchange Agent have been accepted
for tender and that all conditions of the Exchange Offer have been
satisfied or validly waived and (ii) a deposit of the appropriate
number of Shares with the Custodian on behalf of the Depositary to
support the issuance of such ADSs.
IX. Fractional Entitlements.
I-5
<PAGE> 21
No fractional ADSs will be issued in the Exchange Offer. The Exchange Agent
shall aggregate fractional entitlements to ADSs (if any) resulting from the
valid tender of Rule 144A GDSs and instruct the U.S. Broker to sell, as soon
as reasonably practicable, such ADSs on The New York Stock Exchange. The
Exchange Agent shall distribute the proceeds of such sale, without liability
for interest, after deduction of applicable fees and expenses to the
tendering holders of Rule 144A GDSs entitled thereto by means of a credit
delivered by book-entry transfer to the accounts of the applicable
Participants at DTC maintaining accounts for such tendering holders.
X. NO ACCEPTANCE OF TENDERS OF OTHER SECURITIES.
The Exchange Agent shall not accept in such capacity any tender of any
securities in the Exchange Offer other than Rule 144A GDSs and shall refuse
any attempted tenders of securities other than Rule 144A GDSs.
XI. TAXES
A. The exchange of ADSs for Rule 144A GDSs validly tendered to the Exchange
Agent in the Exchange Offer will be treated as a "non-recognition" event
for federal income tax purposes. The Exchange Agent shall not be
required to mail to the recipients of ADSs any tax reports or to file
any reports with the U.S. Internal Revenue Service ("I.R.S.") in respect
of the Rule 144A GDSs delivered in the Exchange Offer.
B. On or before January 31st of the year following the year of the Exchange
Offer, the Exchange Agent will prepare and mail to each holder of Rule
144A GDSs who has received payment from the Exchange Agent of cash in
lieu of fractional ADS entitlements in accordance with the terms hereof,
other than holders of Rule 144A GDSs who demonstrate their status as
nonresident aliens in accordance with U.S. Treasury Regulations
("Non-U.S. Holders") or other recipients providing evidence of exempt
status, a Form 1099-B reporting cash in lieu of fractional ADS
entitlements (if any) delivered to such holders as of the year of
payment, to the extent required by, and in accordance with, U.S.
Treasury Regulations. The Exchange Agent will also prepare and timely
file copies of such Forms 1099-B by magnetic tape with the I.R.S.
("I.R.S."), and take any further actions to the extent required by, and
in accordance with, U.S. Treasury Regulations.
C. If the Exchange Agent has not received notice from the surrendering
holder of Rule 144A GDSs of such holder's Taxpayer Identification Number
("TIN"), or if such TIN has not been certified as correct, the Exchange
Agent shall deduct and withhold 31% Backup Withholding Tax from any cash
payment made to such holder (other than a Non-U.S. Holder) and remit
such funds to the I.R.S. in accordance with the Exchange Agent's
standard procedures.
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<PAGE> 22
D. Should any issue arise regarding federal income tax reporting or
withholding the Exchange Agent will take such action as the Company
instructs to the Exchange Agent in writing. The Company agrees to
reimburse the Exchange Agent for such actions.
XII. MODIFICATION OF EXCHANGE OFFER.
The Company has reserved the right to terminate or amend the Exchange Offer.
the company will give notice of any such termination or amendment to the
Exchange Agent as promptly as possible. In the event of an amendment to the
Exchange Offer, Citibank will follow the reasonable instructions of the
Company with respect to the amended Exchange Offer to the extent consistent
with this Agreement.
I-7
<PAGE> 23
SCHEDULE II
TO
THE EXCHANGE AGENCY AGREEMENT,
DATED AS OF __________, 2000 (THE "AGREEMENT"),
BY AND BETWEEN
ADVANCED SEMICONDUCTOR ENGINEERING, INC. AND CITIBANK, N.A.
FEE SCHEDULE
Please refer to the Fee Proposal attached.
II-1
<PAGE> 24
SCHEDULE III
TO
THE EXCHANGE AGENCY AGREEMENT,
DATED AS OF __________, 2000 (THE "AGREEMENT"),
BY AND BETWEEN
ADVANCED SEMICONDUCTOR ENGINEERING, INC. AND CITIBANK, N.A.
EXCHANGE OFFER DOCUMENTATION
Exchange Offer Prospectus, dated __________, 2000
Letter to Brokers, Dealers, Banks, Trust Companies, Custodians and Other
Nominees dated __________, 2000
Letter to Clients, dated __________, 2000
III-1
<PAGE> 25
SCHEDULE IV TO
THE EXCHANGE AGENCY AGREEMENT,
DATED AS OF __________, 2000 (THE "AGREEMENT"),
BY AND BETWEEN
ADVANCED SEMICONDUCTOR ENGINEERING, INC. AND CITIBANK, N.A.
AUTHORIZED SIGNATORIES
NAME TITLE SIGNATURE
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IV-1
