Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information. (b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by the Depositary in consultation with the Company to the extent practicable, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law and of the articles of association or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”). (c) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Company, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary. (d) If (i) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor. (e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting. (f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (b) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date. (g) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (b) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date. (h) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above. (i) Notwithstanding anything to the contrary in Section 4.7 of the Deposit Agreement, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylaws.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Grupo Aeromexico, S.A.B. De C.V.)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the this Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by the Depositary in consultation with the Company to the extent practicable, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law and of the articles of association or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).
(c) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Company, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
(d) If (i) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (b) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (b) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(h) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(i) Notwithstanding anything to the contrary in this Section 4.7 of the Deposit Agreement4.7, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylaws.
Appears in 2 contracts
Samples: Deposit Agreement (Bank of New York / Adr Division), Deposit Agreement (Grupo Aeromexico, S.A.B. De C.V.)
Voting of Deposited Shares. (a) The Company has advised the Depositary thatthat the laws of Kazakhstan, as of the date of the Deposit Agreement, impose the Equity Conditions for the exercise of voting rights with respect to comply with Shares. At the laws time it gives notice of any shareholders’ meeting, if the Company also requests the Depositary to act under paragraph (b), the Company shall notify the Depositary of the United Mexican States number of placed (outstanding) Shares and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons preference shares that have not proven would be Voting Shares if suitable Identity Information is provided with respect to that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Informationmeeting.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will may be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by the Depositary in consultation with the Company to the extent practicable, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law the laws of Kazakhstan and of the articles of association charter or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that the beneficial owner and of American Depositary Shares may be given, (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”) and (v) the number of potential Voting Shares provided by the Company under paragraph (a).
(c) As of the date of the Deposit Agreement and until the requirements of applicable law change, the notice Disseminated to the Owners under paragraph (b) shall require that a voting instruction include (i) the Identity Information with respect to the beneficial owner and (ii) a statement that the beneficial owner (A) is not, and does not have direct or indirect shareholders or participants that are, legal entities registered (as that term is used in Kazakhstan law) in a Blacklisted Jurisdiction, (B) if, based solely on the number of potential Voting Shares provided by the Company, the beneficial owner would be a Major Participant or a Bank Holding, it has received the approval of the ARDFM to exercise voting rights and (C) has received any other required approval from a relevant authority in Kazakhstan to exercise voting rights. Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, if the request also satisfies the conditions set forth in the preceding sentence, If such conditions are satisfied, the Depositary may, and and, if the Depositary sent a notice under the preceding paragraph paragraph, the Depositary shall, (i) send the Identity Information to each of JSC “Kazakhstan Central Depository” and the Company and, if requested by the ARDFM, the ARDFM, no less than five (5) business days prior to the date of the relevant meeting of holders of Shares (unless a different deadline is requested by the ARDFM) and (ii) endeavor, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Companypracticable, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
(d) If (i) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (b) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (b) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(h) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(i) Notwithstanding anything to the contrary in Section 4.7 of the Deposit Agreement, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylaws.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Companyor other Deposited Securities, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners of Receipts a notice, the form of which notice shall be determined by subject to the reasonable discretion of the Depositary in consultation with the Company to the extent practicableand any applicable provision of Argentine law, if any, that governs such notice, which shall contain (ia) the such information as is contained in the such notice of meeting received by the DepositaryDepositary from the Company, (iib) a statement that the Owners of Receipts as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican Argentine law and of the articles of association or similar documents by-laws of the CompanyCompany and the provisions of the Shares or other Deposited Securities, to instruct the Depositary as to the exercise of the voting rights rights, if any, pertaining to the amount of Shares or other Deposited Securities represented by their respective American Depositary Shares, Shares and (iiic) a statement as to the manner in which those such instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).
(c) . Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that Receipt on such record date, received on or before any Instruction Cutoff Date the date established by the DepositaryDepositary for such purpose, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far shall endeavor insofar as practicable and subject to any applicable law and the articles of association or similar documents of the Company, to vote or cause to be voted the amount of deposited Shares or other Deposited Securities represented by those the American Depositary Shares in accordance with the instructions set forth in that such request. The Depositary shall not vote Shares or attempt to exercise other Deposited Securities represented by the right to vote that attaches to the deposited American Depositary Shares other than except in accordance with instructions given by Owners and received by the Depositary.
(d) If (i) from an Owner; provided, however, that if no such instructions are received, the Depositary receives a voting instruction that shall vote the Depositary is required to endeavor to carry out under paragraph (c) above and (ii) that instruction includes a certification Shares or other Deposited Securities represented by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (in accordance with the “Certification”) recommendations of the Board of Directors of the Company made to all holders of Shares, unless prohibited from doing so by any applicable provisions of Argentine law, and is accompanied by Identity Information with respect to that beneficial ownerif no such recommendations are made it shall not vote such Shares or other Deposited Securities. Notwithstanding the foregoing, then the Depositary shall send that Identity Information and will not vote such Shares in accordance with the recommendations of the Board of Directors, if made, unless the Company has provided to the Depositary a copy of an opinion of Argentine counsel stating that voting instructionthe action recommended by the Board of Directors for approval by holders of Shares is not in contravention of Argentine law or the by-laws or regulations, including the Certificationif any, to the Company not less than five (5) business days prior to the date of the relevant Company. In addition, at any meeting of holders of Shares. The Depositary shall have no responsibility to examine Shares or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions other Deposited Securities (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures ordinary and extraordinary meetings of this paragraph (d) a request to confirm how that Owner’s vote was recorded by shareholders of the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (b) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (b) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(h) If requested in writing by the Company), the Depositary shall, to if requested by the extent practicableBoard of Directors of the Company, represent and unless prohibited by any applicable provisions by Argentine law, deposit all deposited Shares (or other Deposited Securities represented by the American Depositary Shares for purposes of establishing a quorum at such meetings, whether or not voting instructions with respect thereto have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) abovereceived.
(i) Notwithstanding anything to the contrary in Section 4.7 of the Deposit Agreement, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylaws.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by in the Depositary in consultation with sole discretion of the Company to the extent practicableDepositary, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law and of the articles of association by-laws or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”)) and (v) a statement that, if no instructions are received, the Owner may be deemed to have instructed the Depositary to give a discretionary proxy to a person designated by the Company to vote the amount of deposited Shares represented by the Owner’s American Depositary Shares.
(cb) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable and subject to any permitted by applicable law and the articles of association or similar documents of the Companylaw, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.Depositary or as provided in the following sentence. If
(d) If (i) the Depositary receives a voting instruction that Company instructed the Depositary is required to endeavor to carry out Disseminate a notice under paragraph (ca) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information complied with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) below,
(ii) no instructions are received by the Depositary from an Owner with respect to a request matter and an amount of American Depositary Shares of that Owner on or before the Instruction Cutoff Date and
(iii) the Depositary has received from the Company, by the business day following the Instruction Cutoff Date, a written confirmation that, as of the Instruction Cutoff Date, (x) the Company wishes a proxy to confirm how be given under this sentence, (y) the Company reasonably does not know of any substantial opposition to the matter and (z) the matter is not materially adverse to the interests of shareholders, then, the Depositary shall deem that Owner’s Owner to have instructed the Depositary to give, and the Depositary shall give, a discretionary proxy to a person designated by the Company to vote was recorded the amount of deposited Shares represented by that amount of American Depositary Shares as to that matter. Notwithstanding anything else contained in this Section 4.7, if so requested in writing by the Company, the Depositary shall notify the Company endeavor, in so far as practicable and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary extent permitted by applicable law, to represent all deposited Shares (whether that Owner’s vote was recorded by or not voting instructions have been received in respect of such deposited Shares from Owners as of the Company as abovementioned record date) for the sole purpose of establishing quorum at a vote by a Mexican Investor or a non-Mexican Investormeeting of holders of Shares.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(fc) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (ba) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(gd) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (ba) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date. For the avoidance of doubt, if the Company does not instruct the Depositary to Disseminate a notice of that kind, the Company will only be required to give the Depositary a notice of the meeting, and details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting, at least 15 days prior to the meeting date or such other number of days as required under Mexican law.
(h) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(ie) Notwithstanding anything in this Section 4.7 to the contrary in Section 4.7 of the Deposit Agreementcontrary, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylawslaw.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Voting of Deposited Shares. (a) The Company has advised the Depositary thatthat the laws of Kazakhstan, as of the date of the Deposit Agreement, impose the Equity Conditions for the exercise of voting rights with respect to comply with Shares. At the laws time it gives notice of any shareholders’ meeting, if the Company also requests the Depositary to act under paragraph (b), the Company shall notify the Depositary of the United Mexican States number of placed (outstanding) Shares and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons preference shares that have not proven would be Voting Shares if suitable Identity Information is provided with respect to that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Informationmeeting.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will may be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by the Depositary in consultation with the Company to the extent practicable, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law the laws of Kazakhstan and of the articles of association charter or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that the beneficial owner and of American Depositary Shares may be given, (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”) and (v) the number of potential Voting Shares provided by the Company under paragraph (a).
(c) As of the date of the Deposit Agreement and until the requirements of applicable law change, the notice Disseminated to the Owners under paragraph (b) shall require that a voting instruction include (i) the Identity Information with respect to the beneficial owner and (ii) a statement that the beneficial owner (A) is not, and does not have direct or indirect shareholders or participants that are, legal entities registered (as that term is used in Kazakhstan law) in a Blacklisted Jurisdiction, (B) if, based solely on the number of potential Voting Shares provided by the Company, the beneficial owner would be a Major Participant or a Bank Holding, it has received the approval of the ARDFM to exercise voting rights and (C) has received any other required approval from a relevant authority in Kazakhstan to exercise voting rights. Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, if the request also satisfies the conditions set forth in the preceding sentence, If such conditions are satisfied, the Depositary may, and and, if the Depositary sent a notice under the preceding paragraph paragraph, the Depositary shall, (i) send the Identity Information to each of JSC “Kazakhstan Central Depository” and the Company and, if requested by the ARDFM, the ARDFM, no less than five (5) business days prior to the date of the relevant meeting of holders of Shares (unless a different deadline is requested by the ARDFM) and (ii) endeavor, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Companypracticable, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
(d) If (i) . The Company may block the Depositary receives a voting instruction that Depositary’s votes from being cast under the Depositary is required to endeavor to carry out under paragraph (c) above and (ii) that instruction includes a certification by the Owner preceding sentence if it reasonably believes that the beneficial owner of the American Depositary Shares is a Mexican Investor (not entitled to exercise voting rights under the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then Company’s charter or the Depositary shall send that Identity Information and a copy applicable laws of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of SharesKazakhstan. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (b) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (b) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(h) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(i) Notwithstanding anything to the contrary in Section 4.7 of the Deposit Agreement, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylaws.examine
Appears in 1 contract
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice from the Company of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by in the Depositary in consultation with sole discretion of the Company to the extent practicableDepositary, that shall contain contain:
(i) the information contained in the notice of meeting received by the Depositary, Depositary from the Company;
(ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican Norwegian law and of the articles of association or similar documents of the CompanyCompany and according to the rules of the Foreign Registrar, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented evidenced by their respective that Owners' American Depositary SharesShares provided that such Owner is the "beneficial owner", which shall mean each person owning from time to time any beneficial interest in the American Depositary Shares and registered as such in the Norwegian Central Securities Depository (Verdipapirsentralen ASA (VPS)), of those Deposited Securities and if that Owner is registered as a shareholder of the Company with the Foreign Registrar prior to the meeting;
(iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and ; and
(iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).
(cb) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary Company sent a notice under the preceding paragraph shall, endeavorendeavor to:
(i) cause the number of Deposited Securities underlying that Owner’s American Depositary Shares to which that Owner’s request relates to be temporarily registered in the records of the Foreign Registrar in the name of the beneficial owner or beneficial owners specified by that Owner on the condition that the Foreign Register will re-register those Deposited Securities immediately after conclusion of the shareholders’ meeting in the name of the Depositary or its nominee or the Custodian or its nominee;
(ii) notify the Company of its intention to vote the amount of Shares or other Deposited Securities referred to in clause (b)(i) above; and
(iii) as proxy, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Companypracticable, to vote or cause to be voted voted, or otherwise to give effect to the written request of that Owner by voting or causing to be voted, the amount of deposited Shares represented by referred to in clause (b)(i) above in accordance with instructions set forth in such request,
(c) The Depositary shall not attempt to carry out a voting instruction with respect to American Depositary Shares unless the Owner of those American Depositary Shares:
(i) either:
(A) states in its voting instruction that it is a beneficial owner of those American Depositary Shares; or
(B) the voting instruction identifies another person or persons as the beneficial owner or beneficial owners of those American Depositary Shares; and
(ii) the Owner of those American Depositary Shares in accordance either:
(A) agrees with the instructions set Depositary that the Depositary will block registration of transfer of those American Depositary Shares; or
(B) delivers those American Depositary Shares to a blocked account with DTC for the account of the Depositary and notifies the Depositary that those American Depositary Shares are being held in a blocked account until the conclusion of the meeting at which voting rights are to be exercised on behalf of that Owner; and
(iii) the voting instruction sets forth in that request. the date upon which it was signed.
(d) The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by the Owners and received by the Depositary.
(de) If The Depositary will not charge Owners for taking the actions specified in subsections (ib) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph and (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for votingshareholders’ meetings.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (ba) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to instruct the Depositary as Subject to the exercise rules of voting rights relating to Sharesany securities exchange or automated inter-dealer quotation system on which American Depositary Shares or the Deposited Securities represented thereby are listed or quoted, if the Company will upon a written request the Depositary to Disseminate a notice under paragraph (b) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(h) If requested in writing by the Company, the Depositary shallshall deliver, at least two business days prior to the date of a shareholders’ meeting, to the extent practicableCompany, represent copies of all deposited Shares (whether instructions received from Owners in accordance with which the Depositary will vote, or not voting cause to be voted, Deposited Securities at that meeting. Delivery of instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum will be made at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(i) Notwithstanding anything to the contrary in Section 4.7 expense of the Deposit Agreement, Company (unless otherwise agreed in writing by the Depositary Company and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylawsDepositary).
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice from the Company of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by in the Depositary in consultation with sole discretion of the Company to the extent practicableDepositary, that shall contain contain:
(i) the information contained in the notice of meeting received by the Depositary, Depositary from the Company;
(ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican Norwegian law and of the articles of association or similar documents of the CompanyCompany and according to the rules of the Foreign Registrar, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented evidenced by their respective that Owners' American Depositary SharesShares provided that such Owner is the "beneficial owner", which shall mean each person owning from time to time any beneficial interest in the American Depositary Shares and registered as such in the Norwegian Central Securities Depository (Verdipapirsentralen ASA (VPS)), of those Deposited Securities and if that Owner is registered as a shareholder of the Company with the Foreign Registrar prior to the meeting;
(iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and ; and
(iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).
(cb) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary Company sent a notice under the preceding paragraph shall, endeavorendeavor to:
(i) cause the number of Deposited Securities underlying that Owner’s American Depositary Shares to which that Owner’s request relates to be temporarily registered in the records of the Foreign Registrar in the name of the beneficial owner or beneficial owners specified by that Owner on the condition that the Foreign Register will re-register those Deposited Securities immediately after conclusion of the shareholders’ meeting in the name of the Depositary or its nominee or the Custodian or its nominee;
(ii) notify the Company of its intention to vote the amount of Shares or other Deposited Securities referred to in clause (b)(i) above; and
(iii) as proxy, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Companypracticable, to vote or cause to be voted voted, or otherwise to give effect to the written request of that Owner by voting or causing to be voted, the amount of deposited Shares represented by referred to in clause (b)(i) above in accordance with instructions set forth in such request,
(c) The Depositary shall not attempt to carry out a voting instruction with respect to American Depositary Shares unless the Owner of those American Depositary Shares:
(i) either:
(A) states in its voting instruction that it is a beneficial owner of those American Depositary Shares; or
(B) the voting instruction identifies another person or persons as the beneficial owner or beneficial owners of those American Depositary Shares; and
(ii) the Owner of those American Depositary Shares in accordance either:
(A) agrees with the instructions set Depositary that the Depositary will block registration of transfer of those American Depositary Shares; or
(B) delivers those American Depositary Shares to a blocked account with DTC for the account of the Depositary and notifies the Depositary that those American Depositary Shares are being held in a blocked account; until the conclusion of the meeting at which voting rights are to be exercised on behalf of that Owner; and
(iii) the voting instruction sets forth in that request. the date upon which it was signed.
(d) The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
(de) If The Depositary will not charge Owners for taking the actions specified in subsections (ib) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph and (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for votingshareholders’ meetings.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (ba) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to instruct the Depositary as Subject to the exercise rules of voting rights relating to Sharesany securities exchange or automated inter-dealer quotation system on which American Depositary Shares or the Deposited Securities represented thereby are listed or quoted, if the Company will upon a written request the Depositary to Disseminate a notice under paragraph (b) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(h) If requested in writing by the Company, the Depositary shallshall deliver, at least two business days prior to the date of a shareholders’ meeting, to the extent practicableCompany, represent copies of all deposited Shares (whether instructions received from Owners in accordance with which the Depositary will vote, or not voting cause to be voted, Deposited Securities at that meeting. Delivery of instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum will be made at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(i) Notwithstanding anything to the contrary in Section 4.7 expense of the Deposit Agreement, Company (unless otherwise agreed in writing by the Depositary Company and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylawsDepositary).
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice from the Company of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined prepared by the Depositary in consultation with the Company to the extent practicable, that shall contain contain:
(i) the information contained in the notice of meeting received by the Depositary, Depositary from the Company;
(ii) a statement that the Owners each Owner as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican Norwegian law and of the articles of association or similar documents of the CompanyCompany and according to the rules of the Foreign Registrar, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective that Owner’s American Depositary Shares, provided that the beneficial owner of those American Depositary Shares will be, prior to the meeting, registered in the Norwegian Central Securities Depository (Verdipapirsentralen ASA (VPS)), of those Deposited Securities as the holder of the amount of deposited Shares represented thereby;
(iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and ; and
(iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).
(cb) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavorendeavor to:
(i) cause the number of deposited Shares underlying that Owner’s American Depositary Shares to which that Owner’s request relates to be temporarily registered in the records of the Foreign Registrar in the name of the beneficial owner or beneficial owners specified by that Owner on the condition that the Foreign Register will re-register those Deposited Securities immediately after conclusion of the shareholders’ meeting in the name of the Depositary or its nominee or the Custodian or its nominee;
(ii) notify the Company of its intention to vote the amount of Shares or other Deposited Securities referred to in clause (b)(i) above; and
(iii) as proxy, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Companypracticable, to vote or cause to be voted voted, or otherwise to give effect to the written request of that Owner by voting or causing to be voted, the amount of deposited Shares represented by referred to in clause (b)(i) above in accordance with instructions set forth in such request,
(c) The Depositary shall not attempt to carry out a voting instruction with respect to American Depositary Shares unless the Owner of those American Depositary Shares:
(i) either:
(A) states in its voting instruction that it is a beneficial owner of those American Depositary Shares; or
(B) the voting instruction identifies another person or persons as the beneficial owner or beneficial owners of those American Depositary Shares; and
(ii) the Owner of those American Depositary Shares in accordance either:
(A) agrees with the instructions set Depositary that the Depositary will block registration of transfer of those American Depositary Shares; or
(B) delivers those American Depositary Shares to a blocked account with DTC for the account of the Depositary and notifies the Depositary that those American Depositary Shares are being held in a blocked account; until the conclusion of the meeting at which voting rights are to be exercised on behalf of that Owner; and
(iii) the voting instruction sets forth in that request. the date upon which it was signed.
(d) The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
(de) If The Depositary will not charge Owners for taking the actions specified in subsections (ib) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph and (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for votingshareholders’ meetings.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (ba) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to If the Company will instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice act under paragraph (ba) above, the Company shall give (i) at such time as, in the Company’s opinion, there is a strong likelihood that the Company will call a general meeting of shareholders on a certain date, but, in the case of an annual general meeting only, not less than 30 days prior to that date, notify the Depositary notice as to the proposed date of the meetingmeeting and, to the extent available at the time, details concerning of the matters proposed to be voted upon at such meeting (the “Preliminary Notice”) and (ii) thereafter, give the Depositary formal notice of the meeting (“Formal Notice”) and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 21 days prior to the meeting datedate (“Notice Deadline”) (this being the statutory notice period under Norwegian law). For the avoidance of doubt, the Company shall be free to make amendments in the Formal Notice compared to the Preliminary Notice, both as to date and matters to be voted upon. The Depositary shall disseminate the Formal Notice as soon as practicable after the Depositary receives it from the Company.
(h) If requested Notwithstanding anything in writing by the Company, the Depositary shall, this Section 4.7 to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(i) Notwithstanding anything to the contrary in Section 4.7 of the Deposit Agreementcontrary, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary or appropriate to comply with with, or to obtain for Owners the benefits of liberalization of, applicable laws law and regulations the articles of association or similar document of the Company’s bylaws.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by in the Depositary in consultation with sole discretion of the Company to the extent practicableDepositary, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law and of the articles of association by-laws or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”)) and (v) a statement that, if no instructions are received, the Owner may be deemed to have instructed the Depositary to give a discretionary proxy to a person designated by the Company to vote the amount of deposited Shares represented by the Owner’s American Depositary Shares.
(cb) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable and subject to any permitted by applicable law and the articles of association or similar documents of the Companylaw, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.Depositary or as provided in the following sentence. If
(d) If (i) the Depositary receives a voting instruction that Company instructed the Depositary is required to endeavor to carry out Disseminate a notice under paragraph (ca) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information complied with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) below,
(ii) no instructions are received by the Depositary from an Owner with respect to a request matter and an amount of American Depositary Shares of that Owner on or before the Instruction Cutoff Date and
(iii) the Depositary has received from the Company, by the business day following the Instruction Cutoff Date, a written confirmation that, as of the Instruction Cutoff Date, (x) the Company wishes a proxy to confirm how be given under this sentence, (y) the Company reasonably does not know of any substantial opposition to the matter and (z) the matter is not materially adverse to the interests of shareholders, then, the Depositary shall deem that Owner’s Owner to have instructed the Depositary to give, and the Depositary shall give, a discretionary proxy to a person designated by the Company to vote was recorded the amount of deposited Shares represented by that amount of American Depositary Shares as to that matter. Notwithstanding anything else contained in this Section 4.7, if so requested in writing by the Company, the Depositary shall notify the Company endeavor, in so far as practicable and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary extent permitted by applicable law, to represent all deposited Shares (whether that Owner’s vote was recorded by or not voting instructions have been received in respect of such deposited Shares from Owners as of the Company as abovementioned record date) for the sole purpose of establishing quorum at a vote by a Mexican Investor or a non-Mexican Investormeeting of holder of Shares.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(fc) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (ba) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(gd) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (ba) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date. For the avoidance of doubt, if the Company does not instruct the Depositary to Disseminate a notice of that kind, the Company will only be required to give the Depositary a notice of the meeting, and details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting, at least 15 days prior to the meeting date or such other number of days as required under Mexican law.
(h) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(ie) Notwithstanding anything to the contrary in Section 4.7 of the Deposit AgreementAgreement to the contrary, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylawslaw.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by the Depositary in consultation with the Company to the extent practicable, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law and of the articles of association or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner given and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).
(cb) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Companypracticable, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. However, the Company has informed the Depositary that, to comply with the requirements of Mexican law, it will employ a special method of recording and counting votes at shareholders’ meetings, in which votes cast by non-Mexican shareholders may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes of shareholders characterized as Mexican shareholders under the Mexican Foreign Investment Law, which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
(d) If (i) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (ba) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(gd) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (ba) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(he) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (cb) above.
(if) Notwithstanding anything to the contrary in this Section 4.7 of the Deposit Agreement4.7, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylawsregulations.
Appears in 1 contract
Samples: Deposit Agreement (Grupo Aeromexico, S.A.B. De C.V.)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by the Depositary in consultation with the Company to the extent practicable, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law and of the articles of association or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner given and (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).
(cb) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Companypracticable, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. However, the Company has informed the Depositary that, to comply with the requirements of Mexican law, it will employ a special method of recording and counting votes at shareholders’ meetings, in which votes cast by non-Mexican shareholders may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes of shareholders characterized as Mexican shareholders under the Mexican Foreign Investment Law, which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
(d) If (i) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (ba) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(gd) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (ba) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(he) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (cb) above.
(if) Notwithstanding anything to the contrary in Section 4.7 of the Deposit Agreement, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylawsregulations.
Appears in 1 contract
Samples: Deposit Agreement (Grupo Aeromexico, S.A.B. De C.V.)
Voting of Deposited Shares. (a) The Company has advised the Depositary that, as of the date of the Deposit Agreement, to comply with the laws of the United Mexican States and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons that have not proven that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Information.
(b) Upon receipt of notice from the Company of any meeting of holders of Shares at which holders of Shares will be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined prepared by the Depositary in consultation with the Company to the extent practicable, that shall contain contain:
(i) the information contained in the notice of meeting received by the Depositary, Depositary from the Company;
(ii) a statement that the Owners each Owner as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican Norwegian law and of the articles of association or similar documents of the CompanyCompany and according to the rules of the Foreign Registrar, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective that Owner’s American Depositary Shares, provided that the beneficial owner of those American Depositary Shares will be, prior to the meeting, registered in the Norwegian Central Securities Depository (Verdipapirsentralen ASA (VPS)), of those Deposited Securities as the holder of the amount of deposited Shares represented thereby;
(iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that beneficial owner and ; and
(iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”).
(cb) Upon the written request of an Owner of American Depositary Shares, as of the date of the request or, if a record date was specified by the Depositary, as of that record date, received on or before any Instruction Cutoff Date established by the Depositary, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavorendeavor to:
(i) cause the number of deposited Shares underlying that Owner’s American Depositary Shares to which that Owner’s request relates to be temporarily registered in the records of the Foreign Registrar in the name of the beneficial owner or beneficial owners specified by that Owner on the condition that the Foreign Register will re-register those Deposited Securities immediately after conclusion of the shareholders’ meeting in the name of the Depositary or its nominee or the Custodian or its nominee;
(ii) notify the Company of its intention to vote the amount of Shares or other Deposited Securities referred to in clause (b)(i) above; and
(iii) as proxy, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Companypracticable, to vote or cause to be voted voted, or otherwise to give effect to the written request of that Owner by voting or causing to be voted, the amount of deposited Shares represented by referred to in clause (b)(i) above in accordance with instructions set forth in such request,
(c) The Depositary shall not attempt to carry out a voting instruction with respect to American Depositary Shares unless the Owner of those American Depositary Shares:
(i) either:
(A) states in its voting instruction that it is a beneficial owner of those American Depositary Shares; or
(B) the voting instruction identifies another person or persons as the beneficial owner or beneficial owners of those American Depositary Shares; and
(ii) the Owner of those American Depositary Shares in accordance either:
(A) agrees with the instructions set Depositary that the Depositary will block registration of transfer of those American Depositary Shares; or
(B) delivers those American Depositary Shares to a blocked account with DTC for the account of the Depositary and notifies the Depositary that those American Depositary Shares are being held in a blocked account; until the conclusion of the meeting at which voting rights are to be exercised on behalf of that Owner; and
(iii) the voting instruction sets forth in that request. the date upon which it was signed.
(d) The Depositary shall not vote or attempt to exercise the right to vote that attaches to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
(de) If The Depositary will not charge Owners for taking the actions specified in subsections (ib) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph and (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to that beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five (5) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructions, and neither the Company nor the Depositary shall have any liability if the Identity Information or the voting instructions (including the Certification) is not correct, is incomplete, is not provided on a timely basis, or cannot be reasonably verified by the Company based only on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures of this paragraph (d) a request to confirm how that Owner’s vote was recorded by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor or a non-Mexican Investor.
(e) Only Owners (i.e., registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision of the requisite Certification and Identity Information and, therefore, all votes related to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for votingshareholders’ meetings.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (ba) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to If the Company will instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice act under paragraph (ba) above, the Company shall give (i) at such time as, in the Company’s opinion, there is a strong likelihood that the Company will call a general meeting of shareholders on a certain date, but, in the case of an annual general meeting only, not less than 30 days prior to that date, notify the Depositary notice as to the proposed date of the meetingmeeting and, to the extent available at the time, details concerning of the matters proposed to be voted upon at such meeting (the “Preliminary Notice”) and (ii) thereafter, give the Depositary formal notice of the meeting (“Formal Notice”) and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 21 days prior to the meeting datedate (“Notice Deadline”) (this being the statutory notice period under Norwegian law). For the avoidance of doubt, the Company shall be free to make amendments in the Formal Notice compared to the Preliminary Notice, both as to date and matters to be voted upon. The Depositary shall disseminate the Formal Notice as soon as practicable after the Depositary receives it from the Company.
(h) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(i) Notwithstanding anything to the contrary in Section 4.7 of the Deposit AgreementAgreement to the contrary, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary or appropriate to comply with with, or to obtain for Owners the benefits of liberalization of, applicable laws law and regulations the articles of association or similar document of the Company’s bylaws.
Appears in 1 contract
Samples: Deposit Agreement (Bank of New York / Adr Division)
Voting of Deposited Shares. (a) The Company has advised the Depositary thatthat the laws of Kazakhstan, as of the date of the Deposit Agreement, impose the Equity Conditions for the exercise of voting rights with respect to comply with Shares. At the laws time it gives notice of any shareholders’ meeting, if the Company also requests the Depositary to act under paragraph (b), the Company shall notify the Depositary of the United Mexican States number of placed (outstanding) Shares and the bylaws of the Company, it will employ a special method of recording and counting votes at shareholders’ meetings in which votes controlled by persons preference shares that have not proven would be Voting Shares if suitable Identity Information is provided with respect to that they are Mexican Investors may not be recorded as they were cast. The Company will record and count the votes in a manner that will ensure that the votes controlled by persons that have proven that they are Mexican Investors (to the Company’s reasonable satisfaction through a Certification and the submission of Identity Information), which may constitute as little as ten percent of total shareholdings, will control the outcome of every matter submitted to a shareholder vote. Owners providing voting instructions related to votes that they believe should be treated as controlled by Mexican Investors must certify that the beneficial owner of the American Depositary Shares for which they are providing voting instructions is a Mexican Investor and submit applicable Identity Informationmeeting.
(b) Upon receipt of notice of any meeting of holders of Shares at which holders of Shares will may be entitled to vote, if requested in writing by the Company, the Depositary shall, as soon as practicable thereafter, Disseminate to the Owners a notice, the form of which shall be determined by the Depositary in consultation with the Company to the extent practicable, that shall contain (i) the information contained in the notice of meeting received by the Depositary, (ii) a statement that the Owners as of the close of business on a specified record date will be entitled, subject to any applicable provision of Mexican law the laws of Kazakhstan and of the articles of association charter or similar documents of the Company, to instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Shares represented by their respective American Depositary Shares, (iii) a statement as to the manner in which those instructions may be given, including the manner in which an Owner other than DTC may certify that the American Depositary Shares are beneficially owned by a Mexican Investor and furnish the required Identity Information concerning that the beneficial owner and of American Depositary Shares may be given, (iv) the last date on which the Depositary will accept instructions (the “Instruction Cutoff Date”) and (v) the number of potential Voting Shares provided by the Company under paragraph (a).
(c) Upon the written request of an Owner of American Depositary Shares, as As of the date of the request or, if a record date was specified by Deposit Agreement and until the Depositary, as requirements of that record date, received on or before any Instruction Cutoff Date established by the Depositaryapplicable law change, the Depositary may, and if the Depositary sent a notice under the preceding paragraph shall, endeavor, in so far as practicable and subject to any applicable law and the articles of association or similar documents of the Company, to vote or cause to be voted the amount of deposited Shares represented by those American Depositary Shares in accordance with the instructions set forth in that request. The Depositary shall not vote or attempt to exercise the right to vote that attaches Disseminated to the deposited Shares other than in accordance with instructions given by Owners and received by the Depositary.
under paragraph (db) If shall require that a voting instruction include (i) the Depositary receives a voting instruction that the Depositary is required to endeavor to carry out under paragraph (c) above and (ii) that instruction includes a certification by the Owner that the beneficial owner of the American Depositary Shares is a Mexican Investor (the “Certification”) and is accompanied by Identity Information with respect to the beneficial owner and (ii) a statement that the beneficial owner, then the Depositary shall send that Identity Information and a copy of that voting instruction, including the Certification, to the Company not less than five owner (5A) business days prior to the date of the relevant meeting of holders of Shares. The Depositary shall have no responsibility to examine or verify any Identity Information provided by Owners in connection with their voting instructionsis not, and neither the Company nor the Depositary shall does not have any liability if the Identity Information direct or the voting instructions indirect shareholders or participants that are, legal entities registered (including the Certificationas that term is used in Kazakhstan law) is not correctin a Blacklisted Jurisdiction, is incomplete(B) if, is not provided on a timely basis, or cannot be reasonably verified by the Company based only solely on the Identify Information provided. If the Depositary receives from an Owner whose voting instruction was submitted to the Company under the procedures number of this paragraph (d) a request to confirm how that Owner’s vote was recorded potential Voting Shares provided by the Company, the Depositary shall notify the Company and provide the name of that Owner and beneficial owner and the number of voted American Depositary Shares. Upon receipt of would be a notice of that kind, the Company will confirm to the Depositary whether that Owner’s vote was recorded by the Company as a vote by a Mexican Investor Major Participant or a non-Mexican Investor.
(e) Only Owners (i.e.Bank Holding, registered holders) of American Depositary Shares other than DTC or its nominee will be able to provide it has received the requisite Certification and Identity Information necessary for their votes to be counted as votes by a Mexican Investor. The facilities utilized to Disseminate the notice described in paragraph (b) and obtain voting instructions related to American Depositary Shares held in DTC do not facilitate the provision approval of the requisite Certification and Identity Information and, therefore, all votes related ARDFM to Holders of American Depositary Shares that are held in DTC will be counted by the Company as votes by non-Mexican Investors. Any Holder who holds American Depositary Shares in DTC, and who is a Mexican Investor and would like to submit the Certification and Identity Information such that their vote may to be counted as a vote by a Mexican Investor, must transfer their holding from DTC to the books of the Depositary and become an Owner (i.e., a registered holder) of those American Depositary Shares prior to the record date set by the Depositary for voting.
(f) There can be no assurance that Owners generally or any Owner in particular will receive the notice described in paragraph (b) above in time to enable Owners to give instructions to the Depositary and provide the Certification and Identity Information, if applicable, prior to the Instruction Cutoff Date.
(g) In order to give Owners a reasonable opportunity to instruct the Depositary as to the exercise of voting rights relating to Shares, if the Company will request the Depositary to Disseminate a notice under paragraph (b) above, the Company shall give the Depositary notice of the meeting, details concerning the matters to be voted upon and copies of materials to be made available to holders of Shares in connection with the meeting not less than 40 days prior to the meeting date.
(h) If requested in writing by the Company, the Depositary shall, to the extent practicable, represent all deposited Shares (whether or not voting instructions have been received in respect of such Shares from Owners) for the sole purpose of establishing a quorum at the meeting of shareholders but it will vote deposited Shares only as and to the extent provide in paragraph (c) above.
(i) Notwithstanding anything to the contrary in Section 4.7 of the Deposit Agreement, the Depositary and the Company may modify, amend or adopt additional procedures relating to voting of deposited Shares from time to time as they determine may be necessary to comply with applicable laws and regulations or the Company’s bylaws.and
Appears in 1 contract
Samples: Level Iii Ads Supplemental Agreement (Bank of New York / Adr Division)
