AMENDMENT NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT
NO. 2 TO DEPOSIT AGREEMENT
AMENDMENT NO. 2 dated as of
March 27, 2009 (the "Amendment") to the Deposit Agreement dated as of April 2,
2007, as previously amended as of September 3, 2007 (as previously amended, the
"Deposit Agreement"), among eTelecare Global Solutions, Inc., a company
incorporated and existing under the laws of the Republic of the Philippines as a
domestic stock corporation, and its successors (the "Company"), Deutsche Bank
Trust Company Americas, as depositary (the "Depositary"), and all Holders and
Beneficial Owners from time to time of American Depositary Receipts ("ADRs")
issued thereunder.
WITNESSETH:
WHEREAS,
the Company and the Depositary executed the Deposit Agreement for the purposes
set forth therein; and
WHEREAS, pursuant
to Section 6.1 of the Deposit Agreement, the Company and the Depositary desire
to amend certain provisions of the Deposit Agreement.
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and the Depositary hereby agree to amend the Deposit
Agreement as follows:
ARTICLE
I
DEFINITIONS
SECTION 1.01. Definitions. Unless
otherwise defined in this Amendment, all capitalized terms used, but not
otherwise defined, herein shall have the meaning given to such terms in the
Deposit Agreement.
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ARTICLE
II
AMENDMENTS TO DEPOSIT
AGREEMENT
SECTION 2.01. All
references in the Deposit Agreement to the term “Deposit Agreement” shall, as of
the Effective Date (as herein defined), refer to the Deposit Agreement as
amended hereby.
SECTION 2.02. As of
the Effective Date, Section 6.2 of the Deposit Agreement is amended to read as
follows:
The
Depositary shall, at any time at the written direction of the Company, terminate
this Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination, provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of this Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, prior to such termination shall take effect. In the event a
notice of termination of the Deposit Agreement is mailed by the Depositary to
Holders of Receipts concurrently with the mailing by the Depositary to Holders
of Receipts of the notice of this Amendment, the termination of the Deposit
Agreement set forth in such notice shall be effective on the same date that this
Amendment is effective (unless such notice of termination provides for a later
date). If 30 days shall have expired after (i) the Depositary
shall have delivered to the Company a written notice of its election to resign,
or (ii) the Company shall have delivered to the Depositary a written notice of
the removal of the Depositary, and in either case a successor depositary shall
not have been appointed and accepted its appointment as provided in Section 5.4,
the Depositary may terminate this Deposit Agreement by mailing notice of such
termination to the Holders of all Receipts then outstanding at least 15 days
prior to the date fixed for such termination. On and after the date of
termination of this Deposit Agreement, the Holder will, upon surrender of such
Receipt at the Principal Office of the Depositary, upon the payment of the
charges of the Depositary for the surrender of Receipts referred to in Section
2.6 and subject to the conditions and restrictions therein set forth, and upon
payment of any applicable taxes or governmental charges, be entitled to
delivery, to him or upon his order, of the amount of Deposited Securities
represented by such Receipt. If any Receipts shall remain outstanding
after the date of termination of this Deposit Agreement, the Registrar
thereafter shall discontinue the registration of transfers of Receipts, and the
Depositary shall suspend the distribution of dividends to the Holders thereof,
and shall not give any further notices or perform any further acts under this
Deposit Agreement, except that the Depositary shall continue to collect
dividends and other distributions pertaining to Deposited Securities, shall sell
rights or other property as provided in this Deposit Agreement, and shall
continue to deliver Deposited Securities, subject to the conditions and
restrictions set forth in Section 2.6, together with any dividends or other
distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for Receipts surrendered to the
Depositary (after deducting, or charging, as the case may be, in each case, the
charges of the Depositary for the surrender of a Receipt, any
expenses for the account of the Holder in accordance with the terms and
conditions of this Deposit Agreement and any applicable taxes or governmental
charges or assessments). Promptly after the date of termination of this Deposit
Agreement, the Depositary may, by private or public sale, sell the Deposited
Securities then held hereunder and may thereafter hold uninvested the net
proceeds of any such sale, together with any other cash then held by it
hereunder, in an unsegregated account, without liability for interest for the
pro rata benefit of the Holders of Receipts whose Receipts have not theretofore
been surrendered. After making such sale, the Depositary shall be discharged
from all obligations under this Deposit Agreement with respect to the Receipts
and the Shares, Deposited Securities and American Depositary Shares, except to
account for such net proceeds and other cash (after deducting, or charging, as
the case may be, in each case, the charges of the Depositary for the surrender
of a Receipt, any expenses for the account of the Holder in accordance with the
terms and conditions of this Deposit Agreement and any applicable taxes or
governmental charges or assessments). To the extent permitted under
U.S. and Philippine law, rule and regulation, the Company reserves the right to
bid on the Deposited Securities. Upon the termination of this Deposit
Agreement, the Company shall be discharged from all obligations under this
Deposit Agreement except for its obligations to the Depositary
hereunder.
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ARTICLE
III
AMENDMENTS TO THE FORM OF
ADR
SECTION 3.01. Article
(21) of the form of American Depositary Receipt is amended to read as
follows:
The
Depositary shall, at any time at the written direction of the Company, terminate
this Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination, provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of this Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, prior to such termination shall take effect. In the event a
notice of termination of the Deposit Agreement is mailed by the Depositary to
Holders of Receipts concurrently with the mailing by the Depositary to Holders
of Receipts of the notice of this Amendment, the termination of the Deposit
Agreement set forth in such notice shall be effective on the same date that this
Amendment is effective (unless such notice of termination provides for a later
date). If 30 days shall have expired after (i) the Depositary
shall have delivered to the Company a written notice of its election to resign,
or (ii) the Company shall have delivered to the Depositary a written notice of
the removal of the Depositary, and in either case a successor depositary shall
not have been appointed and accepted its appointment as provided herein and the
Deposit Agreement, the Depositary may terminate the Deposit Agreement by mailing
notice of such termination to the Holders of all Receipts then outstanding at
least 15 days prior to the date fixed for such termination. On and after the
date of termination of the Deposit Agreement, the Holder will, upon surrender of
Holder’s Receipt at the Principal Office of the Depositary, upon the payment of
the charges of the Depositary for the surrender of Receipts referred to in
Article (2) hereof and in the Deposit Agreement and subject to the conditions
and restrictions therein set forth, and upon payment of any applicable taxes or
governmental charges, be entitled to delivery, to him or upon his order, of the
amount of Deposited Securities represented by such Receipt. If any
Receipts shall remain outstanding after the date of termination of the Deposit
Agreement, the Registrar thereafter shall discontinue the registration of
transfers of Receipts, and the Depositary shall suspend the distribution of
dividends to the Holders thereof, and shall not give any further notices or
perform any further acts under the Deposit Agreement, except that the Depositary
shall continue to collect dividends and other distributions pertaining to
Deposited Securities, shall sell rights or other property as provided in the
Deposit Agreement, and shall continue to deliver Deposited Securities, subject
to the conditions and restrictions set forth in the Deposit Agreement, together
with any dividends or other distributions received with respect thereto and the
net proceeds of the sale of any rights or other property, in exchange for
Receipts surrendered to the Depositary (after deducting, or charging, as the
case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the
Holder in accordance with the terms and conditions of the Deposit Agreement and
any applicable taxes or governmental charges or assessments). Promptly after the
date of termination of the Deposit Agreement, the Depositary may, by private or
public sale, sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with any
other cash then held by it hereunder, in an unsegregated account, without
liability for interest for the pro rata benefit of the Holders of Receipts whose
Receipts have not theretofore been surrendered. After making such sale, the
Depositary shall be discharged from all obligations under the Deposit Agreement
with respect to the Receipts and the Shares, Deposited Securities and ADSs,
except to account for such net proceeds and other cash (after deducting, or
charging, as the case may be, in each case, the charges of the Depositary for
the surrender of a Receipt, any expenses for the account of the Holder in
accordance with the terms and conditions of the Deposit Agreement and any
applicable taxes or governmental charges or assessments). To the
extent permitted under U.S. and Philippine law, rule and regulation, the Company
reserves the right to bid on the Deposited Securities. Upon the
termination of the Deposit Agreement, the Company shall be discharged from all
obligations under the Deposit Agreement except for its obligations to the
Depositary under the Deposit Agreement.
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ARTICLE
IV
REPRESENTATIONS AND
WARRANTIES
SECTION
4.01. Representations
and Warranties. The Company represents and
warrants
to, and agrees with, the Depositary and the Holders, that:
(a) This
Amendment, when executed and delivered by the Company, will be duly and validly
authorized, executed and delivered by the Company, and it and the Deposit
Agreement as amended hereby constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, subject to bankruptcy, insolvency, fraudulent transfer,
moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles; and
(b) In
order to ensure the legality, validity, enforceability or admissibility into
evidence of this Amendment or the Deposit Agreement as amended hereby, neither
of such agreements need to be filed or recorded with any court or other
authority in the Republic of the Philippines , nor does any stamp or similar tax
or governmental charge need to be paid in the Republic of the
Philippines on or in respect of such agreements.
ARTICLE
V
MISCELLANEOUS
SECTION 5.01. Effective
Date. This Amendment is dated as of the date set forth above
and shall be effective as of the close of business (New York time) thirty days
from the date notice of this Amendment is first provided to Holders of Receipts
(the "Effective Date").
SECTION 5.02. Outstanding
Receipts. Receipts issued prior or subsequent to
the date hereof, which do not reflect the changes to the form of Receipt
effected hereby, do not need to be called in for exchange and may remain
outstanding until such time as the Owners thereof choose to surrender them for
any reason under the Deposit Agreement. The Depositary is authorized
and directed to take any and all actions deemed necessary to effect the
foregoing.
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SECTION
5.03. Indemnification. The
parties hereto shall be entitled to the benefits of the indemnification
provisions of Section 5.8 of the Deposit Agreement in connection with any and
all liability it or they may incur as a result of the terms of this Amendment
and the transactions contemplated herein.
SECTION 5.04. Counterparts. This
Amendment may be executed in any number of counterparts, including by facsimile,
each of which shall be deemed an original and all of which taken together shall
constitute one instrument.
[Remainder
of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the
Company and the Depositary have caused this Amendment to be executed by
representatives thereunto duly authorized as of the date set forth
above.
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By:
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Name:
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Title:
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DEUTSCHE
BANK TRUST COMPANY
AMERICAS,
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as
Depositary
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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6
Exhibit A
to Amendment to Amended and Restated Deposit Agreement
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Number
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CUSIP:
29759R 000
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XXXX
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XX00000X0000
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American
Depositary Shares
(Each
American Depositary Share representing one
Fully
Paid Ordinary Share)
AMERICAN
DEPOSITARY RECEIPT
FOR
AMERICAN
DEPOSITARY SHARES
representing
DEPOSITED
ORDINARY SHARES
of
(Incorporated
under the laws of the Republic of the Philippines)
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as depositary (herein called the “Depositary”), hereby certifies
that _____________is the owner of ______________ American Depositary Shares
(hereinafter “ADS”),
representing deposited common shares, including evidence of rights to receive
such ordinary shares (the “Shares”) of eTelecare Global
Solutions, Inc., a company incorporated under the laws of the Republic of the
Philippines (the “Company”). As of
the date of the Deposit Agreement (hereinafter referred to), each ADS represents
one Share deposited under the Deposit Agreement with the Custodian which at the
date of execution of the Deposit Agreement is Deutsche Bank AG, Manila (the
“Custodian”). The
ratio of Depositary Shares to shares of stock is subject to subsequent amendment
as provided in Article IV of the Deposit Agreement. The Depositary’s
Principal Office is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
X.X.X.
A-1
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(1)
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The Deposit
Agreement
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This
American Depositary Receipt is one of an issue of American Depositary Receipts
(“Receipts”), all issued
and to be issued upon the terms and conditions set forth in the Deposit
Agreement, dated as of April 2, 2007 (as amended from time to time, the “Deposit Agreement”), by and
among the Company, the Depositary, and all Holders and Beneficial Owners from
time to time of Receipts issued thereunder, each of whom by accepting a Receipt
agrees to become a party thereto and becomes bound by all the terms and
conditions thereof. The Deposit Agreement sets forth the rights and
obligations of Holders and Beneficial Owners of Receipts and the rights and
duties of the Depositary in respect of the Shares deposited thereunder and any
and all other securities, property and cash from time to time, received in
respect of such Shares and held thereunder (such Shares, other securities,
property and cash are herein called “Deposited
Securities”). Copies of the Deposit Agreement are on file at
the Principal Office of the Depositary and the Custodian.
Each
owner and each Beneficial Owner, upon acceptance of any ADSs (or any interest
therein) issued in accordance with the terms and conditions of the Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound by
the terms of the Deposit Agreement and applicable ADR(s), and (b) appoint the
Depositary its attorney-in-fact, with full power to delegate, to act on its
behalf and to take any and all actions contemplated in the Deposit Agreement and
the applicable ADR(s), to adopt any and all procedures necessary to comply with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of the Deposit
Agreement and the applicable ADR(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness
thereof.
The
statements made on the face and reverse of this Receipt are summaries of certain
provisions of the Deposit Agreement and the Company’s Articles of Incorporation
and Bylaws (as in effect on the date of the Deposit Agreement) and are qualified
by and subject to the detailed provisions of the Deposit Agreement, to which
reference is hereby made. All capitalized terms used herein which are
not otherwise defined herein shall have the meanings ascribed thereto in the
Deposit Agreement. The Depositary makes no representation or warranty
as to the validity or worth of the Deposited Securities. The
Depositary has made arrangements for the acceptance of the American Depositary
Shares into DTC. Each Beneficial Owner of American Depositary Shares
held through DTC must rely on the procedures of DTC and the DTC Participants to
exercise and be entitled to any rights attributable to such American Depositary
Shares. The Receipt evidencing the American Depositary Shares held
through DTC will be registered in the name of a nominee of DTC. So
long as the American Depositary Shares are held through DTC or unless otherwise
required by law, ownership of beneficial interests in the Receipt registered in
the name of DTC (or its nominee) will be shown on, and transfers of such
ownership will be effected only through, records maintained by (i) DTC (or its
nominee), or (ii) DTC Participants (or their nominees).
A-2
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(2)
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Surrender of Receipts and
Withdrawal of Deposited
Securities
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Upon
surrender, at the Principal Office of the Depositary, of ADSs evidenced by this
Receipt for the purpose of withdrawal of the Deposited Securities represented
thereby, and upon payment of (i) the charges of the Depositary for the making of
withdrawals and cancellation of Receipts (as set forth in Article (9) hereof and
in Section 5.9 and Exhibit B of the Deposit Agreement) and (ii) all fees,
taxes and governmental charges payable in connection with such surrender and
withdrawal, and, subject to the terms and conditions of the Deposit Agreement,
the Company’s Articles of Incorporation and Bylaws, Section 7.9 of the
Deposit Agreement, Article (22) of this Receipt and the provisions of or
governing the Deposited Securities and other applicable laws, the Holder of the
American Depositary Shares evidenced hereby is entitled to delivery, to him or
upon his order, of the Deposited Securities represented by the ADS so
surrendered. Subject to the last sentence of this paragraph, such
Deposited Securities may be delivered in certificated form or by electronic
delivery. ADS may be surrendered for the purpose of withdrawing
Deposited Securities by delivery of a Receipt evidencing such ADS (if held in
registered form) or by book-entry delivery of such ADS to the
Depositary.
A Receipt
surrendered for such purposes shall, if so required by the Depositary, be
properly endorsed in blank or accompanied by proper instruments of transfer in
blank, and if the Depositary so requires, the Holder thereof shall execute and
deliver to the Depositary a written order directing the Depositary to cause the
Deposited Securities being withdrawn to be delivered to or upon the written
order of a person or persons designated in such order. Thereupon, the
Depositary shall direct the Custodian to Deliver (without unreasonable delay) at
the designated office of the Custodian (subject to the terms and conditions of
the Deposit Agreement, to the Company’s Articles of Incorporation and Bylaws,
and to the provisions of or governing the Deposited Securities and applicable
laws, now or hereafter in effect), to or upon the written order of the person or
persons designated in the order delivered to the Depositary as provided above,
the Deposited Securities represented by such ADSs, together with any certificate
or other proper documents of or relating to title for the Deposited Securities
or evidence of the electronic transfer thereof (if available) as the case may be
to or for the account of such person. The Depositary may make
delivery to such person or persons at the Principal Office of the Depositary of
any dividends or distributions with respect to the Deposited Securities
represented by such Receipt, or of any proceeds of sale of any dividends,
distributions or rights, which may at the time be held by the
Depositary.
The
Depositary may, in its discretion, refuse to accept for surrender a number of
American Depositary Shares representing a number of Shares other than a whole
number of Shares. In the case of surrender of a Receipt evidencing a
number of ADSs representing other than a whole number of Shares, the Depositary
shall cause ownership of the appropriate whole number of Shares to be delivered
in accordance with the terms hereof, and shall, at the discretion of the
Depositary, either (i) issue and deliver to the person surrendering such Receipt
a new Receipt evidencing American Depositary Shares representing any remaining
fractional Share, or (ii) sell or cause to be sold the fractional Shares
represented by the Receipt so surrendered and remit the proceeds thereof (net of
(a) applicable fees and charges of, and expenses incurred by, the Depositary and
(b) taxes withheld) to the person surrendering the Receipt. At the
request, risk and expense of any Holder so surrendering a Receipt, and for the
account of such Holder, the Depositary shall direct the Custodian to forward (to
the extent permitted by law) any cash or other property (other than securities)
held in respect of, and any certificate or certificates and other proper
documents of or relating to title to, the Deposited Securities represented by
such Receipt to the Depositary for delivery at the Principal Office of the
Depositary, and for further delivery to such Holder. Such direction
shall be given by letter or, at the request, risk and expense of such Holder, by
cable, telex or facsimile transmission
A-3
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(3)
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Transfers, Split-Ups and
Combinations of Receipts
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Subject
to the terms and conditions of the Deposit Agreement, the Registrar shall
register transfers of Receipts on its books, upon surrender at the Principal
Office of the Depositary of a Receipt by the Holder thereof in person or by duly
authorized attorney, properly endorsed or accompanied by proper instruments of
transfer (including signature guarantees in accordance with standard industry
practice) and duly stamped as may be required by the laws of the State of New
York and of the United States of America, of the Republic of the Philippines and
of any other applicable jurisdiction. Subject to the terms and
conditions of the Deposit Agreement, including payment of the applicable fees
and charges of the Depositary, the Depositary shall execute and deliver a new
Receipt(s) (and if necessary, cause the Registrar to countersign such
Receipt(s)) and deliver same to or upon the order of the person entitled to such
Receipts evidencing the same aggregate number of ADSs as those evidenced by the
Receipts surrendered. Upon surrender of a Receipt or Receipts for the
purpose of effecting a split-up or combination of such Receipt or Receipts upon
payment of the applicable fees and charges of the Depositary, and subject to the
terms and conditions of the Deposit Agreement, the Depositary shall execute and
deliver a new Receipt or Receipts for any authorized number of ADSs requested,
evidencing the same aggregate number of ADSs as the Receipt or Receipts
surrendered.
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(4)
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Pre-Conditions to Registration,
Transfer, Etc.
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As a
condition precedent to the execution and delivery, registration of
transfer, split-up, combination or surrender of any Receipt or withdrawal of any
Deposited Securities, the Depositary or the Custodian may require (i) payment
from the depositor of Shares or presenter of the Receipt of a sum sufficient to
reimburse it for any tax or other governmental charge and any stock transfer or
registration fee with respect thereto (including any such tax or charge and fee
with respect to Shares being deposited or withdrawn) and payment of any
applicable fees and charges of the Depositary as provided in the Deposit
Agreement and in this Receipt, (ii) the production of proof satisfactory to it
as to the identity and genuineness of any signature or any other matters and
(iii) compliance with (A) any laws or governmental regulations relating to the
execution and delivery of Receipts and ADSs or to the withdrawal of Deposited
Securities and (B) such reasonable regulations of the Depositary or the Company
consistent with the Deposit Agreement and applicable law.
A-4
The
issuance of ADSs against deposits of Shares generally or against deposits of
particular Shares may be suspended, or the issuance of ADSs against the deposit
of particular Shares may be withheld, or the registration of transfer of
Receipts in particular instances may be refused, or the registration of transfer
of Receipts generally may be suspended, during any period when the transfer
books of the Depositary are closed or if any such action is deemed necessary or
advisable by the Depositary or the Company, in good faith, at any time or from
time to time because of any requirement of law, any government or governmental
body or commission or any securities exchange upon which the Receipts or Share
are listed, or under any provision of the Deposit Agreement or provisions of, or
governing, the Deposited Securities or any meeting of shareholders of the
Company or for any other reason, subject in all cases to Article (22)
hereof. Notwithstanding any provision of the Deposit Agreement or
this Receipt to the contrary, the Holders of Receipts are entitled to surrender
outstanding ADSs to withdraw the Deposited Securities at any time subject only
to (i) temporary delays caused by closing the transfer books of the Depositary
or the Company or the deposit of Shares in connection with voting at a
shareholders’ meeting or the payment of dividends, (ii) the payment of fees,
taxes and similar charges, (iii) compliance with any U.S. or foreign
laws or governmental regulations relating to the Receipts or to the withdrawal
of the Deposited Securities, and (iv) other circumstances specifically
contemplated by Section I.A.(l) of the General Instructions to Form F-6 (as
such General Instructions may be amended from time to time). Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under the Deposit Agreement any Shares or other Deposited Securities
required to be registered under the provisions of the U.S. Securities
Act of 1933, as amended, unless a registration statement is in effect as to such
Shares.
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(5)
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Compliance With Information
Requests
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Notwithstanding
any other provision of the Deposit Agreement or this Receipt, each Holder and
Beneficial Owner of the ADSs represented hereby agrees to comply with requests
from the Company pursuant to the laws of the Republic of the Philippines, the
rules and requirements of the National Association of Securities Dealers and any
other stock exchange on which the Shares are, or will be registered, traded or
listed, the Company’s
Articles of Incorporation and Bylaws, which are made to provide information as
to the capacity in which such Holder or Beneficial Owner owns ADSs and regarding
the identity of any other person interested in such ADSs and the nature of such
interest and various other matters whether or not they are Holders and/or
Beneficial Owner at the time of such request. The Depositary agrees
to use reasonable efforts to forward any such requests to the Holders and to
forward to the Company any such responses to such requests received by the
Depositary.
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(6)
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Liability of Holder for Taxes,
Duties and Other Charges
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If any
tax or other governmental charge shall become payable by the Depositary or the
Custodian with respect to any Receipt or any Deposited Securities or ADSs, such
tax, or other governmental charge shall be payable by the Holders and Beneficial
Owners to the Depositary. The Company, the Custodian and/or the
Depositary may withhold or deduct from any distributions made in respect of
Deposited Securities and may sell for the account of the Holder and/or
Beneficial Owner any or all of the Deposited Securities and apply such
distributions and sale proceeds in payment of such taxes (including applicable
interest and penalties) or charges, with the Holder and the Beneficial Owner
hereof remaining fully liable for any deficiency. The Custodian may
refuse the deposit of Shares, and the Depositary may refuse to issue ADSs, to
deliver Receipts, register the transfer, split-up or combination of ADRs and
(subject to Article (22) hereof) the withdrawal of Deposited Securities, until
payment in full of such tax, charge, penalty or interest is
received. Every Holder and Beneficial Owner agrees to indemnify the
Depositary, the Company, the Custodian and each of their respective agents,
directors, employees and Affiliates for, and hold each of them harmless from,
any claims with respect to taxes (including applicable interest and penalties
thereon) arising from any tax benefit obtained for such Holder and/or Beneficial
Owner.
A-5
Holders
understand that in converting Foreign Currency, amounts received on conversion
are calculated at a rate which may exceed the number of decimal places used by
the Depositary to report distribution rates (which in any case will not be less
than two decimal places). Any excess amount may be retained by the
Depositary as an additional cost of conversion, irrespective of any other fees
and expenses payable or owing hereunder and shall not be subject to
escheatment.
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(7)
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Representations and Warranties
of Depositors
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Each
person depositing Shares under the Deposit Agreement shall be deemed thereby to
represent and warrant that (i) such Shares (and the certificates therefor) are
duly authorized, validly issued, fully paid, non-assessable and were legally
obtained by such person, (ii) all pre-emptive (and similar) rights, if any, with
respect to such Shares, have been validly waived or exercised, (iii) the person
making such deposit is duly authorized so to do, (iv) the Shares presented for
deposit are free and clear of any lien, encumbrance, security interest, charge,
mortgage or adverse claim and are not, and the ADSs issuable upon such deposit
will not be, Restricted Securities and (v) the Shares presented for deposit have
not been stripped of any rights or entitlements. Such representations
and warranties shall survive the deposit and withdrawal of Shares and the
issuance, cancellation and transfer of ADSs. If any such
representations or warranties are false in any way, the Company and Depositary
shall be authorized, at the cost and expense of the person depositing Shares, to
take any and all actions necessary to correct the consequences
thereof.
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(8)
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Filing Proofs, Certificates and
Other Information
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Any
person presenting Shares for deposit, any Holder and any Beneficial Owner may be
required, and every Holder and Beneficial Owner agrees, from time to time to
provide to the Depositary such proof of citizenship or residence, taxpayer
status, payment of all applicable taxes or other governmental charges, exchange
control approval, legal or beneficial ownership of ADSs and Deposited
Securities, compliance with applicable laws and the terms of the Deposit
Agreement and the provisions of, or governing, the Deposited Securities or other
information as the Depositary deem necessary or proper or as the Company may
reasonably require by written request to the Depositary consistent with its
obligations under the Deposit Agreement. Subject to Article (22)
hereof and the terms of the Deposit Agreement, the Depositary and the Registrar,
as applicable, may withhold the delivery or registration of transfer of any
Receipt or the distribution or sale of any dividend or other distribution of
rights or of the proceeds thereof or the delivery of any Deposited Securities
until such proof or other information is filed, or such certifications are
executed, or such representations and warranties made, or such information and
documentation are provided.
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(9)
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Charges of
Depositary
|
The
Depositary shall charge the following fees for the services performed under the
terms of the Deposit Agreement; provided, however, that no fees shall be payable
upon distribution of cash dividends so long as the charging of such fee is
prohibited by the exchange, if any, upon which the ADSs are listed:
A-6
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(i)
|
to
any person to whom ADSs are issued or to any person to whom a distribution
is made in respect of ADS distributions pursuant to stock dividends or
other free distributions of stock, bonus distributions, stock splits or
other distributions (except where converted to cash), a fee not in excess
of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so issued
under the terms of the Deposit Agreement to be determined by the
Depositary;
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(ii)
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to
any person surrendering ADSs for cancellation and withdrawal of Deposited
Securities including, inter alia, cash
distributions made pursuant to a cancellation or withdrawal, a fee not in
excess of U.S. $ 5.00 per 100 ADSs (or fraction thereof) so
surrendered;
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(iii)
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to
any Holder of ADSs, a fee not in excess of U.S. $ 2.00 per 100
ADS held for the distribution of cash proceeds, including cash
dividends or sale of rights and other entitlements, not made pursuant to a
cancellation or withdrawal;
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(iv)
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to
any holder of ADSs, a fee not in excess of U.S. $ 5.00 per 100
ADSs (or portion thereof) issued upon the exercise of
rights;
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(v)
|
for
the operation and maintenance costs in administering the ADSs an annual
fee of U.S. $ 2.00 per 100
ADS; and
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(vi)
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in
connection with inspections of the relevant share register maintained by
the local registrar, if applicable undertaken by the Depositary, the
Custodian or their respective agents: an annual fee of U.S. $
1.00 per 100 ADS (such fee to be assessed against Holders of record as of
the date or dates set by the Depositary as it sees fit and collected at
the sole discretion of the Depositary by billing such Holders for such fee
or by deducting such fee from one or more cash dividends or other cash
distributions.
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In
addition, Holders, Beneficial Owners, person depositing Shares for deposit and
person surrendering ADSs for cancellation and withdrawal of Deposited Securities
will be required to pay the following charges:
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(i)
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taxes
(including applicable interest and penalties) and other governmental
charges;
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(ii)
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such
registration fees as may from time to time be in effect for the
registration of Shares or other Deposited Securities with the Foreign
Registrar and applicable to transfers of Shares or other Deposited
Securities to or from the name of the Custodian, the Depositary or any
nominees upon the making of deposits and withdrawals,
respectively;
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(iii)
|
such
cable, telex , facsimile and electronic transmission and delivery expenses
as are expressly provided in the Deposit Agreement to be at the expense of
the person depositing or withdrawing Shares or Holders and Beneficial
Owners of ADSs;
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(iv)
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the
expenses and charges incurred by the Depositary in the conversion of
foreign currency;
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A-7
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(v)
|
such
fees and expenses as are incurred by the Depositary in connection with
compliance with exchange control regulations and other regulatory
requirements applicable to Shares, Deposited Securities, ADSs and
ADRs;
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(vi)
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the
fees and expenses incurred by the Depositary in connection with the
delivery of Deposited Securities, including any fees of a central
depository for securities in the local market, where
applicable;
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(vii)
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any
additional fees, charges, costs or expenses that may be incurred by the
Depositary from time to time in connection with the ownership, holding,
deposit, cancellation and withdrawal of Deposited Securities or ADRs, as
the case may be.
|
Any other
charges and expenses of the Depositary under the Deposit Agreement will be paid
by the Company upon agreement between the Depositary and the
Company. All fees and charges may, at any time and from time to time,
be changed by agreement between the Depositary and Company but, in the case of
fees and charges payable by Holders or Beneficial Owners, only in the manner
contemplated by Article (20) of this Receipt.
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(10)
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Title to
Receipts
|
It is a
condition of this Receipt, and every successive Holder of this Receipt by
accepting or holding the same consents and agrees, that title to this Receipt
(and to each ADS evidenced hereby) is transferable by delivery of the Receipt,
provided it has been properly endorsed or accompanied by proper instruments of
transfer, such Receipt being a certificated security under the laws of the State
of New York. Notwithstanding any notice to the contrary, the
Depositary may deem and treat the Holder of this Receipt (that is, the person in
whose name this Receipt is registered on the books of the Depositary) as the
absolute owner hereof for all purposes. The Depositary shall have no
obligation or be subject to any liability under the Deposit Agreement or this
Receipt to any holder of this Receipt or any Beneficial Owner unless such holder
is the Holder of this Receipt registered on the books of the Depositary or, in
the case of a Beneficial Owner, such Beneficial Owner or the Beneficial Owner’s
representative is the Holder registered on the books of the
Depositary.
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(11)
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Validity of
Receipt
|
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or be
valid or enforceable for any purpose, unless this Receipt has been (i) dated,
(ii) signed by the manual or facsimile signature of a duly authorized signatory
of the Depositary, (iii) if a Registrar for the Receipts shall have been
appointed, countersigned by the manual or facsimile signature of a duly
authorized signatory of the Registrar and (iv) registered in the books
maintained by the Depositary or the Registrar, as applicable, for the issuance
and transfer of Receipts. Receipts bearing the facsimile signature of
a duly-authorized signatory of the Depositary or the Registrar, who at the time
of signature was a duly-authorized signatory of the Depositary or the Registrar,
as the case may be, shall bind the Depositary, notwithstanding the fact that
such signatory has ceased to be so authorized prior to the execution and
delivery of such Receipt by the Depositary or did not hold such office on the
date of issuance of such Receipts.
A-8
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(12)
|
Available Information; Reports;
Inspection of Transfer Books
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The
Company is subject to the periodic reporting requirements of the Exchange Act
and accordingly files certain information with the Commission. These
reports and documents can be inspected and copied at the public reference
facilities maintained by the Commission located at 000 X Xxxxxx, X.X.,
Xxxxxxxxxx X.X. 00000. The Depositary shall make available
during normal business hours on any Business Day for inspection by Holders at
its Principal Office any reports and communications, including any proxy
soliciting materials, received from the Company which are both (a) received by
the Depositary, the Custodian, or the nominee of either of them as the holder of
the Deposited Securities and (b) made generally available to the holders of such
Deposited Securities by the Company.
The
Depositary or the Registrar, as applicable, shall keep books for the
registration of Receipts and transfers of Receipts which at all reasonable times
shall be open for inspection by the Company and by the Holders of such Receipts,
provided that such inspection shall not be, to the Depositary’s or the
Registrar’s knowledge, for the purpose of communicating with Holders of such
Receipts in the interest of a business or object other than the business of the
Company or other than a matter related to the Deposit Agreement or the
Receipts.
The
Depositary or the Registrar, as applicable, may close the transfer books with
respect to the Receipts, at any time or from time to time, when deemed necessary
or advisable by it in good faith in connection with the performance of its
duties hereunder, or at the reasonable written request of the Company subject,
in all cases, to Article (22) hereof.
Dated:
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DEUTSCHE
BANK TRUST
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||
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COMPANY
AMERICAS, as Depositary
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||
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By:
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||
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Vice
President
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||
The
address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, X.X.X.
A-9
(A)
[FORM OF
REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF THE
DEPOSIT AGREEMENT
|
(13)
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Dividends and Distributions in
Cash, Shares, etc.
|
Whenever
the Depositary receives confirmation from the Custodian of receipt of any cash
dividend or other cash distribution on any Deposited Securities, or receives
proceeds from the sale of any Shares, rights securities or other entitlements
under the Deposit Agreement, the Depositary will, if at the time of receipt
thereof any amounts received in a foreign currency can, in the judgment of the
Depositary (upon the terms of the Deposit Agreement), be converted on a
practicable basis, into Dollars transferable to the United States, promptly
convert or cause to be converted such dividend, distribution or proceeds into
Dollars and will distribute promptly the amount thus received (net of applicable
fees and charges of, and expenses incurred by, the Depositary and taxes
withheld) to the Holders of record as of the ADS Record Date in proportion to
the number of ADS representing such Deposited Securities held by such Holders
respectively as of the ADS Record Date. The Depositary shall
distribute only such amount, however, as can be distributed without attributing
to any Holder a fraction of one cent. Any such fractional amounts
shall be rounded to the nearest whole cent and so distributed to Holders
entitled thereto. If the Company, the Custodian or the Depositary is
required to withhold and does withhold from any cash dividend or other cash
distribution in respect of any Deposited Securities an amount on account of
taxes, duties or other governmental charges, the amount distributed to Holders
on the ADSs representing such Deposited Securities shall be reduced
accordingly. Such withheld amounts shall be forwarded by the Company,
the Custodian or the Depositary to the relevant governmental
authority. Any foreign currency received by the Depositary shall be
converted upon the terms and conditions set forth in the Deposit
Agreement.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Company shall or cause such Shares to be deposited
with the Custodian and registered, as the case may be, in the name of the
Depositary, the Custodian or their nominees. Upon receipt of
confirmation of such deposit, the Depositary shall, subject to and in accordance
with the Deposit Agreement, establish the ADS Record Date and either (i)
distribute to the Holders as of the ADS Record Date in proportion to the number
of ADSs held as of the ADS Record Date, additional ADSs, which represent in
aggregate the number of Shares received as such dividend, or free distribution,
subject to the terms of the Deposit Agreement (including, without limitation,
the applicable fees and charges of, and expenses incurred by, the Depositary,
and taxes), or (ii) if additional ADSs are not so distributed, each ADS issued
and outstanding after the ADS Record Date shall, to the extent permissible by
law, thenceforth also represent rights and interest in the additional Shares
distributed upon the Deposited Securities represented thereby (net of the
applicable fees and charges of, and the expenses incurred by, the Depositary,
and taxes). In lieu of delivering fractional ADSs, the Depositary
shall sell the number of Shares represented by the aggregate of such fractions
and distribute the proceeds upon the terms set forth in the Deposit
Agreement.
In the
event that (x) the Depositary determines that any distribution in property
(including Shares) is subject to any tax or other governmental charges which the
Depositary is obligated to withhold, or, (y) if the Company, in the fulfilment
of its obligations under the Deposit Agreement, has either (a) furnished an
opinion of U.S. counsel determining that Shares must be registered
under the Securities Act or other laws in order to be distributed to Holders
(and no such registration statement has been declared effective), or (b) fails
to timely deliver the documentation contemplated in the Deposit Agreement, the
Depositary may dispose of all or a portion of such property (including Shares
and rights to subscribe therefor) in such amounts and in such manner, including
by public or private sale, as the Depositary deems necessary and practicable,
and the Depositary shall distribute the net proceeds of any such sale (after
deduction of taxes and fees and charges of, and expenses incurred by, the
Depositary) to Holders entitled thereto upon the terms of the Deposit
Agreement. The Depositary shall hold and/or distribute any unsold
balance of such property in accordance with the provisions of the Deposit
Agreement.
Upon
timely receipt of a notice indicating that the Company wishes an elective
distribution to be made available to Holders upon the terms described in the
Deposit Agreement, the Depositary shall, upon provision of all documentation
required under the Deposit Agreement, (including, without limitation, any legal
opinions of counsel the Depositary may request under the Deposit Agreement)
determine whether such distribution is lawful and reasonably
practicable. If so, the Depositary shall, subject to the terms and
conditions of the Deposit Agreement, establish an ADS Record Date according to
Article (14) hereof and establish procedures to enable the Holder hereof to
elect to receive the proposed distribution in cash or in additional
ADSs. If a Holder elects to receive the distribution in cash, the
dividend shall be distributed as in the case of a distribution in
cash. If the Holder hereof elects to receive the distribution in
additional ADSs, the distribution shall be distributed as in the case of a
distribution in Shares upon the terms described in the Deposit
Agreement. If such elective distribution is not lawful or reasonably
practicable or if the Depositary did not receive satisfactory documentation set
forth in the Deposit Agreement, the Depositary shall, to the extent permitted by
law, distribute to Holders, on the basis of the same determination as is made in
the local market in respect of the Shares for which no election is made, either
(x) cash or (y) additional ADSs representing such additional Shares, in each
case, upon the terms described in the Deposit Agreement. Nothing
herein shall obligate the Depositary to make available to the Holder hereof a
method to receive the elective distribution in Shares (rather than
ADSs). There can be no assurance that the Holder hereof will be given
the opportunity to receive elective distributions on the same terms and
conditions as the holders of Shares.
11
Upon
receipt by the Depositary of a notice indicating that the Company wishes rights
to subscribe for additional Shares to be made available to Holders of ADSs, the
Company shall determine whether it is lawful and reasonably practicable to make
such rights available to the Holders. The Depositary shall make such
rights available to any Holders only if the Company shall have timely requested
that such rights be made available to Holders, the Depositary shall have
received the documentation required by the Deposit Agreement, and the Depositary
shall have determined that such distribution of rights is lawful and reasonably
practicable. If such conditions are not satisfied, the Depositary
shall sell the rights as described below. In the event all conditions
set forth above are satisfied, the Depositary shall establish an ADS Record Date
and establish procedures (x) to distribute such rights (by means of warrants or
otherwise) and (y) to enable the Holders to exercise the rights (upon payment of
the applicable fees and charges of, and expenses incurred by, the Depositary and
taxes). Nothing herein or in the Deposit Agreement shall obligate the
Depositary to make available to the Holders a method to exercise such rights to
subscribe for Shares (rather than ADSs). If (i) the Company does not
timely request the Depositary to make the rights available to Holders or if the
Company requests that the rights not be made available to Holders, (ii) the
Depositary fails to receive the documentation required by the Deposit Agreement
or determines it is not lawful or reasonably practicable to make the rights
available to Holders, or (iii) any rights made available are not exercised and
appear to be about to lapse, the Depositary shall determine whether it is lawful
and reasonably practicable to sell such rights, in a riskless principal capacity
or otherwise, at such place and upon such terms (including public and private
sale) as it may deem proper. The Depositary shall, upon such sale,
convert and distribute proceeds of such sale (net of applicable fees and charges
of, and expenses incurred by, the Depositary and taxes) upon the terms hereof
and in the Deposit Agreement. If the Depositary is unable to make any
rights available to Holders or to arrange for the sale of the rights upon the
terms described above, the Depositary shall allow such rights to
lapse. The Depositary shall not be responsible for (i) any failure to
determine that it may be lawful or feasible to make such rights available to
Holders in general or any Holders in particular, (ii) any foreign exchange
exposure or loss incurred in connection with such sale, or exercise, or (iii)
the content of any materials forwarded to the Holders on behalf of the Company
in connection with the rights distribution.
Notwithstanding
anything herein to the contrary, if registration (under the Securities Act or
any other applicable law) of the rights or the securities to which any rights
relate may be required in order for the Company to offer such rights or such
securities to Holders and to sell the securities represented by such rights, the
Depositary will not distribute such rights to the Holders (i) unless and until a
registration statement under the Securities Act covering such offering is in
effect or (ii) unless the Company furnishes to the Depositary opinion(s) of
counsel for the Company in the United States and counsel to the Company in any
other applicable country in which rights would be distributed, in each case
reasonably satisfactorily to the Depositary, to the effect that the offering and
sale of such securities to Holders and Beneficial Owners are exempt from, or do
not require registration under, the provisions of the Securities Act or any
other applicable laws. In the event that the Company, the Depositary
or the Custodian shall be required to withhold and does withhold from any
distribution of property (including rights) an amount on account of taxes or
other governmental charges, the amount distributed to the Holders shall be
reduced accordingly. In the event that the Depositary determines that
any distribution in property (including Shares and rights to subscribe therefor)
is subject to any tax or other governmental charges which the Depositary is
obligated to withhold, the Depositary may dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such amounts and
in such manner, including by public or private sale, as the Depositary deems
necessary and practicable to pay any such taxes or charges.
12
There can
be no assurance that Holders generally, or any Holder in particular, will be
given the opportunity to exercise rights on the same terms and conditions as the
holders of Shares or to exercise such rights. Nothing herein shall
obligate the Company to file any registration statement in respect of any rights
or Shares or other securities to be acquired upon the exercise of such
rights.
Upon
receipt of a notice regarding property other than cash, Shares or rights to
purchase additional Shares, to be made to Holders of ADSs, the Depositary shall
determine, upon consultation with the Company, whether such distribution to
Holders is lawful and reasonably practicable. The Depositary shall
not make such distribution unless (i) the Company shall have timely requested
the Depositary to make such distribution to Holders, (ii) the Depositary shall
have received the documentation required by the Deposit Agreement, and (iii) the
Depositary shall have determined that such distribution is lawful and reasonably
practicable. Upon satisfaction of such conditions, the Depositary
shall distribute the property so received to the Holders of record as of the ADS
Record Date, in proportion to the number of ADSs held by such Holders
respectively and in such manner as the Depositary may deem practicable for
accomplishing such distribution (i) upon receipt of payment or net of the
applicable fees and charges of, and expenses incurred by, the Depositary, and
(ii) net of any taxes withheld. The Depositary may dispose of all or
a portion of the property so distributed and deposited, in such amounts and in
such manner (including public or private sale) as the Depositary may deem
practicable or necessary to satisfy any taxes (including applicable interest and
penalties) or other governmental charges applicable to the
distribution.
If the
conditions above are not satisfied, the Depositary shall sell or cause such
property to be sold in a public or private sale, at such place or places and
upon such terms as it may deem proper and shall distribute the proceeds of such
sale received by the Depositary (net of (a) applicable fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) to the Holders upon the
terms hereof and of the Deposit Agreement. If the Depositary is
unable to sell such property, the Depositary may dispose of such property in any
way it deems reasonably practicable under the circumstances.
|
(14)
|
Fixing of Record
Date
|
Whenever
necessary in connection with any distribution (whether in cash, shares, rights
or other distribution), or whenever for any reason the Depositary causes a
change in the number of Shares that are represented by each ADS, or whenever the
Depositary shall receive notice of any meeting of holders of Shares or other
Deposited Securities, or whenever the Depositary shall find it necessary or
convenient in connection with the giving of any notice, or any other matter, the
Depositary shall fix a record date (“ADS Record Date”) for the
determination of the Holders who shall be entitled to receive such distribution,
to give instructions for the exercise of voting rights at any such meeting, or
to give or withhold such consent, or to receive such notice or solicitation or
to otherwise take action, or to exercise the rights of Holders with respect to
such changed number of Shares represented by each ADS. Subject to
applicable law and the terms and conditions of this Receipt and the Deposit
Agreement, only the Holders of record at the close of business in New York on
such ADS Record Date shall be entitled to receive such distributions, to give
such voting instructions, to receive such notice or solicitation, or otherwise
take action.
13
|
(15)
|
Voting of Deposited
Securities
|
As soon
as practicable after receipt of notice of any meeting at which the holders of
Shares are entitled to vote, or of solicitation of consents or proxies from
holders of Shares or other Deposited Securities, the Depositary shall fix the
ADS Record Date in respect of such meeting or solicitation of such consent or
proxy. The Depositary shall, if requested by the Company in writing
in a timely manner (the Depositary having no obligation to take any further
action if the request shall not have been received by the Depositary at least 30
days prior to the date of such vote or meeting), at the Company’s expense and
provided no U.S. legal prohibitions exist, mail by ordinary, regular
mail delivery or by electronic transmission (if agreed by the Company and the
Depositary), unless otherwise agreed in writing by the Company and the
Depositary, to Holders as of the ADS Record Date: (a) such notice of meeting or
solicitation of consent or proxies; (b) a statement that the Holders as of the
ADS Record Date will be entitled, subject to any applicable law, the provisions
of the Deposit Agreement, the Company’s Articles of Incorporation and Bylaws and
the provisions of or governing Deposited Securities (which provisions, if any,
shall be summarized in pertinent part by the Company), to instruct the
Depositary as to the exercise of the voting rights, if any, pertaining to the
Shares or other Deposited Securities represented by such Holder’s ADSs; and (c)
a brief statement as to the manner in which such instructions may be
given. Upon the timely receipt of written instructions of a Holder of
ADSs on the ADS Record Date, the Depositary shall endeavour, insofar as
practicable and permitted under applicable law and the provisions of the
Company’s Articles of Incorporation and Bylaws and the provisions of the
Deposited Securities, to vote or cause the Custodian to vote the Shares and/or
other Deposited Securities represented by ADSs held by such Holder in accordance
with such instructions.
Neither
the Depositary nor the Custodian shall, under any circumstances exercise any
discretion as to voting, and neither the Depositary nor the Custodian shall
vote, attempt to exercise the right to vote, or in any way make use of, for
purposes of establishing a quorum or otherwise the Shares or other Deposited
Securities represented by ADSs except pursuant to and in accordance with such
written instructions from Holders. Shares or other Deposited
Securities represented by ADSs for which no specific voting instructions are
received by the Depositary from the Holder shall not be voted.
Notwithstanding
the above, and in accordance with Section 5.3 of the Deposit Agreement, the
Depositary shall not be liable for any failure to carry out any instructions to
vote any of the Deposited Securities, or for the manner in which such vote is
cast or the effect of any such vote.
14
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(16)
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Changes Affecting Deposited
Securities
|
Upon any
change in par value, split-up, cancellation, consolidation or any other
reclassification of Deposited Securities, or upon any recapitalization,
reorganization, merger or consolidation or sale of assets affecting the Company
or to which it otherwise is a party, any securities which shall be received by
the Depositary or a Custodian in exchange for, or in conversion of or
replacement or otherwise in respect of, such Deposited Securities shall, to the
extent permitted by law, be treated as new Deposited Securities under the
Deposit Agreement, and the Receipts shall, subject to the provisions of the
Deposit Agreement and applicable law, evidence ADSs representing the right to
receive such additional securities. Alternatively, the Depositary
may, with the Company’s approval, and shall, if the Company shall so request,
subject to the terms of the Deposit Agreement and receipt of satisfactory
documentation contemplated by the Deposit Agreement, execute and deliver
additional Receipts as in the case of a stock dividend on the Shares, or call
for the surrender of outstanding Receipts to be exchanged for new Receipts, in
either case, as well as in the event of newly deposited Shares, with necessary
modifications to this form of Receipt specifically describing such new Deposited
Securities and/or corporate change. Notwithstanding the foregoing, in
the event that any security so received may not be lawfully distributed to some
or all Holders, the Depositary may, with the Company’s approval, and shall if
the Company requests, subject to receipt of satisfactory legal documentation
contemplated in the Deposit Agreement, sell such securities at public or private
sale, at such place or places and upon such terms as it may deem proper and may
allocate the net proceeds of such sales (net of fees and charges of, and
expenses incurred by, the Depositary and taxes) for the account of the Holders
otherwise entitled to such securities and distribute the net proceeds so
allocated to the extent practicable as in the case of a distribution received in
cash pursuant to the Deposit Agreement. The Depositary shall not be
responsible for (i) any failure to determine that it may be lawful or feasible
to make such securities available to Holders in general or any Holder in
particular, (ii) any foreign exchange exposure or loss incurred in connection
with such sale, or (iii) any liability to the purchaser of such
securities.
15
|
(17)
|
Exoneration
|
Neither
the Depositary, the Custodian or the Company shall be obligated to do or perform
any act which is inconsistent with the provisions of the Deposit Agreement or
shall incur any liability (i) if the Depositary, the Custodian or the Company or
their respective controlling persons or agents shall be prevented or forbidden
from, or subjected to any civil or criminal penalty or restraint on account of,
or delayed in, doing or performing any act or thing required by the terms of the
Deposit Agreement and this Receipt, by reason of any provision of any present or
future law or regulation of the United States, the Republic of the
Philippines or any other country, or of any other governmental authority or
regulatory authority or stock exchange, or by reason of any provision, present
or future of the Company’s Articles of Incorporation and Bylaws or any provision
of or governing any Deposited Securities, or by reason of any act of God or war
or other circumstances beyond its control, (including, without limitation,
nationalization, expropriation, currency restrictions, work stoppage, strikes,
civil unrest, revolutions, rebellions, explosions and computer failure), (ii) by
reason of any exercise of, or failure to exercise, any discretion provided for
in the Deposit Agreement or in the Company’s Articles of Incorporation and
Bylaws or provisions of or governing Deposited Securities, (iii) for any action
or inaction of the Depositary, the Custodian or the Company or their respective
controlling persons or agents in reliance upon the advice of or information from
legal counsel, accountants, any person presenting Shares for deposit, any
Holder, any Beneficial Owner or authorized representative thereof, or any other
person believed by it in good faith to be competent to give such advice or
information, (iv) for any inability by a Holder or Beneficial Owner to benefit
from any distribution, offering, right or other benefit which is made available
to holders of Deposited Securities but is not, under the terms of the Deposit
Agreement, made available to Holders of ADS or (v) for any consequential or
punitive damages for any breach of the terms of the Deposit
Agreement. The Depositary, its controlling persons, its agents, any
Custodian and the Company, its controlling persons and its agents may rely and
shall be protected in acting upon any written notice, request, opinion or other
document believed by it to be genuine and to have been signed or presented by
the proper party or parties. No disclaimer of liability under the
Securities Act is intended by any provision of the Deposit
Agreement.
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(18)
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Standard of
Care
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The
Company and the Depositary and their respective agents assume no obligation and
shall not be subject to any liability under the Deposit Agreement or the
Receipts to Holders or Beneficial Owners or other persons, except in accordance
with Section 5.8 of the Deposit Agreement, provided, that the Company and
the Depositary and their respective agents agree to perform their respective
obligations specifically set forth in the Deposit Agreement without gross
negligence, wilful misconduct or bad faith. The Depositary and its
agents shall not be liable for any failure to carry out any instructions to vote
any of the Deposited Securities, or for the manner in which any vote is cast or
the effect of any vote, provided that any such action or omission is in good
faith and in accordance with the terms of the Deposit Agreement. The
Depositary shall not incur any liability for any failure to determine that any
distribution or action may be lawful or reasonably practicable, for the content
of any information submitted to it by the Company for distribution to the
Holders or for any inaccuracy of any translation thereof, for any investment
risk associated with acquiring an interest in the Deposited Securities, for the
validity or worth of the Deposited Securities or for any tax consequences that
may result from the ownership of ADSs, Shares or Deposited Securities, for the
credit-worthiness of any third party, for allowing any rights to lapse upon the
terms of the Deposit Agreement or for the failure or timeliness of any notice
from the Company. In no event shall the Depositary or any of its
Agents be liable for any indirect, special, punitive or consequential
damage.
16
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(19)
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Resignation and Removal of the
Depositary; Appointment of Successor
Depositary
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The
Depositary may at any time resign as Depositary under the Deposit Agreement by
written notice of resignation delivered to the Company, such resignation to be
effective on the earlier of (i) the 90th day after delivery thereof to the
Company, or (ii) upon the appointment of a successor depositary and its
acceptance of such appointment as provided in the Deposit Agreement, save that,
any amounts, fees, costs or expenses owed to the Depositary under the Deposit
Agreement or in accordance with any other agreements otherwise agreed in writing
between the Company and the Depositary from time to time shall be paid to the
Depositary prior to such resignation. The Company shall use
reasonable efforts to appoint such successor depositary, and give notice to the
Depositary of such appointment, not more than 90 days after delivery by the
Depositary of written notice of resignation as provided in the Deposit
Agreement. The Depositary may at any time be removed by the Company
by written notice of such removal which notice shall be effective on the later
of (i) the 90th day after delivery thereof to the Depositary, or (ii) upon the
appointment of a successor depositary and its acceptance of such appointment as
provided in the Deposit Agreement save that, any amounts, fees, costs or
expenses owed to the Depositary under the Deposit Agreement or in accordance
with any other agreements otherwise agreed in writing between the Company and
the Depositary from time to time shall be paid to the Depositary prior to such
removal. In case at any time the Depositary acting hereunder shall
resign or be removed, the Company shall use its reasonable efforts to appoint a
successor depositary which shall be a bank or trust company having an office in
the Borough of Manhattan, the City of New York. Every successor
depositary shall execute and deliver to its predecessor and to the Company an
instrument in writing accepting its appointment hereunder, and thereupon such
successor depositary, without any further act or deed, shall become fully vested
with all the rights, powers, duties and obligations of its
predecessor. The predecessor depositary, upon payment of all sums due
it and on the written request of the Company, shall (i) execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder (other than as contemplated in the Deposit Agreement),
(ii) duly assign, transfer and deliver all right, title and interest to the
Deposited Securities to such successor, and (iii) deliver to such successor a
list of the Holders of all outstanding Receipts and such other information
relating to Receipts and Holders thereof as the successor may reasonably
request. Any such successor depositary shall promptly mail notice of
its appointment to such Holders. Any corporation into or with which
the Depositary may be merged or consolidated shall be the successor of the
Depositary without the execution or filing of any document or any further
act.
17
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(20)
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Amendment/Supplement
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Subject
to the terms and conditions of this Article (20), and applicable law, this
Receipt and any provisions of the Deposit Agreement may at any time and from
time to time be amended or supplemented by written agreement between the Company
and the Depositary in any respect which they may deem necessary or desirable
without the consent of the Holders or Beneficial Owners. Any
amendment or supplement which shall impose or increase any fees or charges
(other than the charges of the Depositary in connection with foreign exchange
control regulations, and taxes and other governmental charges, delivery and
other such expenses), or which shall otherwise materially prejudice any
substantial existing right of Holders or Beneficial Owners, shall not, however,
become effective as to outstanding Receipts until 30 days after notice of such
amendment or supplement shall have been given to the Holders of outstanding
Receipts. The parties hereto agree that any amendments or supplements
which (i) are reasonably necessary (as agreed by the Company and the Depositary)
in order for (a) the ADSs to be registered on Form F-6 under the Securities Act
or (b) the ADSs or Shares to be traded solely in electronic book-entry form and
(ii) do not in either such case impose or increase any fees or charges to be
borne by Holders, shall be deemed not to prejudice any substantial rights of
Holders or Beneficial Owners. Every Holder and Beneficial Owner at
the time any amendment or supplement so becomes effective shall be deemed, by
continuing to hold such ADS, to consent and agree to such amendment or
supplement and to be bound by the Deposit Agreement as amended or supplemented
thereby. In no event shall any amendment or supplement impair the
right of the Holder to surrender such Receipt and receive therefor the Deposited
Securities represented thereby, except in order to comply with mandatory
provisions of applicable law. Notwithstanding the foregoing, if any
governmental body should adopt new laws, rules or regulations which would
require amendment or supplement of the Deposit Agreement to ensure compliance
therewith, the Company and the Depositary may amend or supplement the Deposit
Agreement and the Receipt at any time in accordance with such changed laws,
rules or regulations. Such amendment or supplement to the Deposit
Agreement in such circumstances may become effective before a notice of such
amendment or supplement is given to Holders or within any other period of time
as required for compliance with such laws, or rules or regulations.
18
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(21)
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Termination
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The
Depositary shall, at any time at the written direction of the Company, terminate
this Deposit Agreement by mailing notice of such termination to the Holders of
all Receipts then outstanding at least 30 days prior to the date fixed in such
notice for such termination, provided that, the Depositary shall be reimbursed
for any amounts, fees, costs or expenses owed to it in accordance with the terms
of this Deposit Agreement and in accordance with any other agreements as
otherwise agreed in writing between the Company and the Depositary from time to
time, prior to such termination shall take effect. In the event a
notice of termination of the Deposit Agreement is mailed by the Depositary to
Holders of Receipts concurrently with the mailing by the Depositary to Holders
of Receipts of the notice of this Amendment, the termination of the Deposit
Agreement set forth in such notice shall be effective on the same date that this
Amendment is effective (unless such notice of termination provides for a later
date). If 30 days shall have expired after (i) the
Depositary shall have delivered to the Company a written notice of its election
to resign, or (ii) the Company shall have delivered to the Depositary a written
notice of the removal of the Depositary, and in either case a successor
depositary shall not have been appointed and accepted its appointment as
provided herein and the Deposit Agreement, the Depositary may terminate the
Deposit Agreement by mailing notice of such termination to the Holders of all
Receipts then outstanding at least 15 days prior to the date fixed for such
termination. On and after the date of termination of the Deposit Agreement, the
Holder will, upon surrender of Holder’s Receipt at the Principal Office of the
Depositary, upon the payment of the charges of the Depositary for the surrender
of Receipts referred to in Article (2) hereof and in the Deposit Agreement and
subject to the conditions and restrictions therein set forth, and upon payment
of any applicable taxes or governmental charges, be entitled to delivery, to him
or upon his order, of the amount of Deposited Securities represented by such
Receipt. If any Receipts shall remain outstanding after the date of
termination of the Deposit Agreement, the Registrar thereafter shall discontinue
the registration of transfers of Receipts, and the Depositary shall suspend the
distribution of dividends to the Holders thereof, and shall not give any further
notices or perform any further acts under the Deposit Agreement, except that the
Depositary shall continue to collect dividends and other distributions
pertaining to Deposited Securities, shall sell rights or other property as
provided in the Deposit Agreement, and shall continue to deliver Deposited
Securities, subject to the conditions and restrictions set forth in the Deposit
Agreement, together with any dividends or other distributions received with
respect thereto and the net proceeds of the sale of any rights or other
property, in exchange for Receipts surrendered to the Depositary (after
deducting, or charging, as the case may be, in each case, the charges of the
Depositary for the surrender of a Receipt, any expenses for the
account of the Holder in accordance with the terms and conditions of the Deposit
Agreement and any applicable taxes or governmental charges or assessments).
Promptly after the date of termination of the Deposit Agreement, the Depositary
may, by private or public sale, sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such sale,
together with any other cash then held by it hereunder, in an unsegregated
account, without liability for interest for the pro rata benefit of the Holders
of Receipts whose Receipts have not theretofore been surrendered. After making
such sale, the Depositary shall be discharged from all obligations under the
Deposit Agreement with respect to the Receipts and the Shares, Deposited
Securities and ADSs, except to account for such net proceeds and other cash
(after deducting, or charging, as the case may be, in each case, the charges of
the Depositary for the surrender of a Receipt, any expenses for the account of
the Holder in accordance with the terms and conditions of the Deposit Agreement
and any applicable taxes or governmental charges or assessments). To
the extent permitted under U.S. and Philippine law, rule and regulation, the
Company reserves the right to bid on the Deposited Securities. Upon
the termination of the Deposit Agreement, the Company shall be discharged from
all obligations under the Deposit Agreement except for its obligations to the
Depositary under the Deposit Agreement.
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(22)
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Compliance with U.S. Securities
Laws; Regulatory Compliance
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Notwithstanding
any provisions in this Receipt or the Deposit Agreement to the contrary, the
withdrawal or delivery of Deposited Securities will not be suspended by the
Company or the Depositary except as would be permitted by Section I.A.(1) of the
General Instructions to the Form F-6 Registration Statement, as amended from
time to time, under the Securities Act of 1933.
19
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(23)
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Certain Rights of the
Depositary; Limitations
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Subject
to the further terms and provisions of this Article (23), the Depositary, its
Affiliates and their agents, on their own behalf, may own and deal in any class
of securities of the Company and its affiliates and in ADSs. The
Depositary may issue ADSs against evidence of rights to receive Shares from the
Company, any agent of the Company or any custodian, registrar, transfer agent,
clearing agency or other entity involved in ownership or transaction records in
respect of the Shares. Such evidence of rights shall consist of
written blanket or specific guarantees of ownership of Shares furnished on
behalf of the holder thereof. In its capacity as Depositary, the
Depositary shall not lend Shares or ADSs; provided, however, that the Depositary
may (i) issue ADSs prior to the receipt of Shares pursuant to Section 2.3
of the Deposit Agreement and (ii) deliver Shares prior to the receipt and
cancellation of ADSs pursuant to Section 2.6 of the Deposit Agreement,
including ADSs which were issued under (i) above but for which Shares may not
have been received (each such transaction a “Pre-Release
Transaction”). The Depositary may receive ADSs in lieu of
Shares under (i) above and receive Shares in lieu of ADSs under (ii)
above. Each such Pre-Release Transaction will be (a) accompanied by
or subject to a written agreement whereby the person or entity (the “Applicant”) to whom ADSs or
Shares are to be delivered (1) represents that at the time of the Pre-Release
Transaction the Applicant or its customer owns the Shares or ADSs that are to be
delivered by the Applicant under such Pre-Release Transaction, (2) agrees to
indicate the Depositary as owner of such Shares or ADSs in its records and to
hold such Shares or ADSs in trust for the Depositary until such Shares or ADSs
are delivered to the Depositary or the Custodian, (3) unconditionally guarantees
to deliver to the Depositary or the Custodian, as applicable, such Shares or
ADSs and (4) agrees to any additional restrictions or requirements that the
Depositary deems appropriate; (b) at all times fully collateralized with cash,
U.S. government securities or such other collateral as the Depositary
deems appropriate; (c) terminable by the Depositary on not more than five (5)
business days’ notice; and (d) subject to such further indemnities and credit
regulations as the Depositary deems appropriate. The Depositary will
normally limit the number of ADSs and Shares involved in such Pre-Release
Transactions at any one time to thirty percent (30%) of the ADSs outstanding
(without giving effect to ADSs outstanding under (i) above), provided, however,
that the Depositary reserves the right to change or disregard such limit from
time to time as it deems appropriate. The Depositary may also set
limits with respect to the number of ADSs and Shares involved in Pre-Release
Transactions with any one person on a case by case basis as it deems
appropriate. The Depositary may retain for its own account any
compensation received by it in conjunction with the
foregoing. Collateral provided pursuant to (b) above, but not
earnings thereon, shall be held for the benefit of the Holders (other than the
Applicant).
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(24)
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Ownership
Restrictions
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Owners
and Beneficial Owners shall comply with any limitations on ownership of Shares
under the Articles of Incorporation of the Company or applicable Philippine law
as if they held the number of Shares their American Depositary Shares
represent. The Company shall inform the Owners, Beneficial
Owners and the Depositary of any such ownership restrictions in place from time
to time.
20
(ASSIGNMENT
AND TRANSFER SIGNATURE LINES)
FOR VALUE
RECEIVED, the undersigned Holder hereby sell(s), assign(s) and transfer(s) unto
______________________________ whose taxpayer identification number is
_______________________ and whose address including postal zip code is
____________________________, the within Receipt and all rights thereunder,
hereby irrevocably constituting and appointing ________________________
attorney-in-fact to transfer said Receipt on the books of the Depositary with
full power of substitution in the premises.
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Dated:
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Name:
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By:
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Title:
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NOTICE:
The signature of the Holder to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
If the
endorsement be executed by an attorney, executor, administrator, trustee or
guardian, the person executing the endorsement must give his/her full title in
such capacity and proper evidence of authority to act in such capacity, if not
on file with the Depositary, must be forwarded with this Receipt.
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SIGNATURE
GUARANTEED
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21
