Exhibit 4.1
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Dated [_____]
DEPOSIT AGREEMENT
between
ETELECARE GLOBAL SOLUTIONS, INC.
as Issuer
and
DEUTSCHE BANK TRUST COMPANY AMERICAS as Depositary
and
THE HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY
SHARES EVIDENCED BY AMERICAN DEPOSITARY RECEIPTS ISSUED
HEREUNDER as [_____]
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WHITE & CASE
0 Xxx Xxxxx Xxxxxx
Xxxxxx XX0X 0XX
TABLE OF CONTENTS
PAGE
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1. DEFINITIONS........................................................... 1
2. APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES;
EXECUTION AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS............ 5
2.1 Appointment of Depositary........................................ 5
2.2 Form and Transferability of Receipts............................. 5
2.3 Deposits......................................................... 6
2.4 Execution and Delivery of Receipts............................... 8
2.5 Transfer of Receipts; Combination and Split-up of Receipts....... 8
2.6 Surrender of Receipts and Withdrawal of Deposited
Securities....................................................... 9
2.7 Limitations on Execution and Delivery, Transfer, etc. of
Receipts; Suspension of Delivery, Transfer, etc.................. 11
2.8 Lost Receipts, etc............................................... 11
2.9 Cancellation and Destruction of Surrendered Receipts;
Maintenance of Records........................................... 12
2.10 Pre-Release...................................................... 12
3. CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS...... 13
3.1 Proofs, Certificates and Other Information....................... 13
3.2 Liability for Taxes and Other Charges............................ 13
3.3 Representations and Warranties on Deposit of Shares.............. 14
3.4 Compliance with Information Requests............................. 14
4. THE DEPOSITED SECURITIES.............................................. 15
4.1 Cash Distributions............................................... 15
4.2 Distribution in Shares........................................... 15
4.3 Elective Distributions in Cash or Shares......................... 16
4.4 Distribution of Rights to Purchase Shares........................ 17
4.5 Distributions Other Than Cash, Shares or Rights to Purchase
Shares........................................................... 18
4.6 Conversion of Foreign Currency................................... 19
4.7 Fixing of Record Date............................................ 20
4.8 Voting of Deposited Securities................................... 21
4.9 Changes Affecting Deposited Securities........................... 21
4.10 Available Information............................................ 22
4.11 Reports.......................................................... 22
4.12 List of Holders.................................................. 23
4.13 Taxation; Withholding............................................ 23
5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY......................... 24
5.1 Maintenance of Office and Transfer Books by the Registrar........ 24
5.2 Exoneration...................................................... 25
5.3 Standard of Care................................................. 25
5.4 Resignation and Removal of the Depositary; Appointment of
Successor Depositary............................................. 26
5.5 The Custodian.................................................... 27
5.6 Notices and Reports.............................................. 28
5.7 Issuance of Additional Shares, ADSs etc.......................... 29
5.8 Indemnification.................................................. 30
(i)
5.9 Fees and Charges of Depositary................................... 31
5.10 Restricted Securities Owners/Ownership Restrictions.............. 32
6. AMENDMENT AND TERMINATION............................................. 32
6.1 Amendment/Supplement............................................. 32
6.2 Termination...................................................... 33
7. MISCELLANEOUS......................................................... 34
7.1 Counterparts..................................................... 34
7.2 No Third-Party Beneficiaries..................................... 34
7.3 Severability..................................................... 35
7.4 Holders and Beneficial Owners as Parties; Binding Effect......... 35
7.5 Notices.......................................................... 35
7.6 Governing Law and Jurisdiction................................... 36
7.7 Assignment....................................................... 37
7.8 Agents........................................................... 37
7.9 Exclusivity...................................................... 37
7.10 Compliance with U.S. Securities Laws............................. 37
7.11 Titles........................................................... 38
EXHIBIT A [FORM OF FACE OF RECEIPT]...................................... 1
EXHIBIT B [FORM OF REVERSE OF RECEIPT]................................... 1
(ii)
DEPOSIT AGREEMENT, dated as of [_____], by and among
(1) ETELECARE GLOBAL SOLUTIONS, INC, a company incorporated under the laws of
the Republic of the Philippines as a domestic stock corporation, and its
successors (the "COMPANY"),
(2) DEUTSCHE BANK TRUST COMPANY AMERICAS, an indirect wholly owned subsidiary
of Deutsche Bank A.G., acting in its capacity as depositary, and any
successor depositary hereunder (the "DEPOSITARY"), and
(3) all Holders and Beneficial Owners of American Depositary Shares evidenced
by American Depositary Receipts issued hereunder (all such capitalized
terms as hereinafter defined).
WITNESSETH THAT:
WHEREAS, the Company desires to establish an ADR facility with the Depositary to
provide for the deposit of the Shares and the creation of American Depositary
Shares representing the Shares so deposited;
WHEREAS, the Depositary is willing to act as the Depositary for such ADR
facility upon the terms set forth in this Deposit Agreement; and
WHEREAS, the American Depositary Receipts evidencing the American Depositary
Shares issued pursuant to the terms of this Deposit Agreement are to be
substantially in the form of Exhibit A annexed hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the American Depositary Shares to be issued pursuant to the terms of
this Deposit Agreement are accepted for trading on the National Association of
Securities Dealers Automated Quotation; and
WHEREAS, the Board of Directors of the Company (or an authorized committee
thereof) has duly approved the establishment of an ADR facility upon the terms
set forth in this Deposit Agreement, the execution and delivery of this Deposit
Agreement on behalf of the Company, and the actions of the Company and the
transactions contemplated herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS
All capitalized terms used, but not otherwise defined, herein shall have
the meanings set forth below, unless otherwise clearly indicated:
"AFFILIATE" shall have the meaning assigned to such term by the Commission
under Regulation C promulgated under the Securities Act.
"AGENT" shall mean such entity or entities as the Depositary may appoint
under Section 7.8, including the Custodian or any successor or addition
thereto.
"AMERICAN DEPOSITARY SHARE(S)" and "ADS(S)" American Depositary Share(s)
shall mean the securities represented by the rights and interests in the
Deposited Securities granted to the Holders and Beneficial Owners pursuant
to the terms and conditions of this Deposit Agreement and evidenced by the
American Depositary Receipts issued hereunder. Each American Depositary
Share shall represent the right to receive [_____] of Shares, until there
shall occur a distribution upon Deposited Securities referred to in Section
4.2 or a change in Deposited Securities referred to in Section 4.9 with
respect to which additional American Depositary Receipts are not executed
and delivered, and thereafter each American Depositary Share shall
represent the Shares or Deposited Securities specified in such Sections.
"ADS RECORD DATE" shall have the meaning given to such term in Section 4.7.
"BENEFICIAL OWNER" shall mean as to any ADS, any person or entity having a
beneficial interest in any ADSs. A Beneficial Owner need not be the Holder
of the ADR evidencing such ADSs. A Beneficial Owner may exercise any rights
or receive any benefits hereunder solely through the Holder of the ADR(s)
evidencing the ADSs in which such Beneficial Owner has an interest.
"BUSINESS DAY" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday which is not (a) a day on which banking institutions in the Borough
of Manhattan, The City of New York are authorized or obligated by law or
executive order to close and (b) a day on which the market(s) in which
Receipts are traded are closed.
"COMMISSION" shall mean the Securities and Exchange Commission of the
United States or any successor governmental agency in the United States.
"COMPANY" shall mean 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.
"CUSTODIAN" shall mean, as of the date hereof, Deutsche Bank AG, Manila,
located at Floor 00, Xxxxx Xxx, Xxxxx Xxxxxxx, Xxxxx Xxxxxx, Xxxxxx Xxxx,
Xxxxxxxxxxx, as the custodian for the purposes of this Deposit Agreement,
and any other firm or corporation which may hereinafter be appointed by the
Depositary pursuant to the terms of Section 5.5 as a successor or an
additional custodian or custodians hereunder, as the context shall require.
The term "Custodian" shall mean all custodians, collectively.
"DELIVER" and "DELIVERY" shall mean, when used in respect of American
Depositary Shares, Receipts, Deposited Securities and Shares, the physical
delivery of the certificate representing such security, or the electronic
delivery of such security by means of book-entry transfer, as appropriate,
including, without limitation, through DRS/Profile. With respect to
DRS/Profile ADRs, the terms "execute", "issue", "register", "surrender",
"transfer" or "cancel" refer to applicable entries or movements to or
within DRS/Profile.
"DEPOSIT AGREEMENT" shall mean this Deposit Agreement and all exhibits
hereto, as the same may from time to time be amended and supplemented in
accordance with the terms hereof.
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"DEPOSITARY" shall mean Deutsche Bank Trust Company Americas, an indirect
wholly owned subsidiary of Deutsche Bank A.G., in its capacity as
depositary under the terms of this Deposit Agreement, and any successor
depositary hereunder.
"DEPOSITED SECURITIES" as of any time shall mean Shares at such time
deposited or deemed to be deposited under this Deposit Agreement and any
and all other securities, property and cash received or deemed to be
received by the Depositary or the Custodian in respect thereof and held
hereunder, subject, in the case of cash, to the provisions of Section 4.6.
The collateral delivered in connection with Pre-Release Transactions
described in Section 2.10 hereof shall not constitute Deposited Securities.
"DOLLARS" and "$" shall refer to the lawful currency of the United States.
"DRS/PROFILE" means the system for the uncertificated registration of
ownership of securities pursuant to which ownership of ADSs is maintained
on the books of the Depositary without the issuance of a physical
certificate and transfer instructions may be given to allow for the
automated transfer of ownership between the books of DTC and the
Depositary. Ownership of ADSs held in DRS/Profile are evidenced by periodic
statements issued by the Depositary to the Holders entitled thereto.
"DTC" shall mean The Depository Trust and Clearing Corporation, the central
book-entry clearinghouse and settlement system for securities traded in the
United States, and any successor thereto.
"EXCHANGE ACT" shall mean the United States Securities Exchange Act of
1934, as from time to time amended.
"FOREIGN CURRENCY" shall mean any currency other than Dollars.
"FOREIGN REGISTRAR" shall mean the entity, if any, that carries out the
duties of registrar for the Shares or any successor as registrar for the
Shares and any other appointed agent of the Company for the transfer and
registration of Shares.
"HOLDER" shall mean the person in whose name a Receipt is registered on the
books of the Depositary (or the Registrar, if any) maintained for such
purpose. A Holder may or may not be a Beneficial Owner. A Holder shall be
deemed to have all requisite authority to act on behalf of those Beneficial
Owners of the ADRs registered in such Holder's name.
"INDEMNIFIED PERSON" and "Indemnifying Person" shall have the meaning set
forth in Section 5.8. hereof.
"PESOS" shall refer to the lawful currency of the Republic of the
Philippines.
"PRE-RELEASE" shall have the meaning set forth in Section 2.10 hereof.
"PRINCIPAL OFFICE" when used with respect to the Depositary, shall mean the
principal office of the Depositary at which at any particular time its
depositary receipts business shall be administered, which, at the date of
this Deposit Agreement, is located at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, X.X.X.
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"RECEIPT(S)"; "AMERICAN DEPOSITARY RECEIPT(S)" and "ADR(S)" shall mean the
certificate(s) or DRS/Profile statements issued by the Depositary
evidencing the American Depositary Shares issued under the terms of this
Deposit Agreement, as such Receipts may be amended from time to time in
accordance with the provisions of this Deposit Agreement. References to
Receipts shall include physical certificated Receipts as well as ADSs
issued through DRS/Profile, unless the context otherwise requires.
"REGISTRAR" shall mean the Depositary or any bank or trust company having
an office in the Borough of Manhattan, The City of New York, which shall be
appointed by the Depositary to register ownership of Receipts and transfer
of Receipts as herein provided, shall include any co-registrar appointed by
the Depositary for such purposes. Registrars (other than the Depositary)
may be removed and substitutes appointed by the Depositary.
"RESTRICTED SECURITIES" shall mean Shares, or American Depositary Shares
representing such Shares, which (i) have been acquired directly or
indirectly from the Company or any of its Affiliates in a transaction or
chain of transactions not involving any public offering and subject to
resale limitations under the Securities Act or the rules issued thereunder,
or (ii) are held by an officer or director (or persons performing similar
functions) or other Affiliate of the Company, or (iii) are subject to other
restrictions on sale or deposit under the laws of the United States, the
Republic of the Philippines, or under a shareholders' agreement or the
Company's Articles of Incorporation and Bylaws or under the regulations of
an applicable securities exchange unless, in each case, such Shares are
being sold to persons other than an Affiliate of the Company in a
transaction (x) covered by an effective resale registration statement or
(y) exempt from the registration requirements of the Securities Act (as
hereinafter defined), and the Shares are not, when held by such person,
Restricted Securities.
"SECURITIES ACT" shall mean the United States Securities Act of 1933, as
from time to time amended.
"SHARES" shall mean ordinary shares in registered form of the Company, par
value one peso each, heretofore validly issued and outstanding and fully
paid or hereafter validly issued and outstanding and fully paid. References
to Shares shall include evidence of rights to receive Shares, whether or
not stated in the particular instance; provided, however, that in no event
shall Shares include evidence of rights to receive Shares with respect to
which the full purchase price has not been paid or Shares as to which
pre-emptive rights have theretofore not been validly waived or exercised;
provided further, however, that, if there shall occur any change in par
value, split-up, consolidation, reclassification, conversion or any other
event described in Section 4.9, in respect of the Shares of the Company,
the term "Shares" shall thereafter, to the extent permitted by law,
represent the successor securities resulting from such change in par value,
split-up, consolidation, exchange, conversion, reclassification or event.
"UNITED STATES" or "U.S." shall mean the United States of America.
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2. APPOINTMENT OF DEPOSITARY; FORM OF RECEIPTS; DEPOSIT OF SHARES; EXECUTION
AND DELIVERY, TRANSFER AND SURRENDER OF RECEIPTS
2.1 APPOINTMENT OF DEPOSITARY.
The Company hereby appoints the Depositary as exclusive depositary for the
Deposited Securities and hereby authorizes and directs the Depositary to
act in accordance with the terms set forth in this Deposit Agreement. Each
Holder and each Beneficial Owner, upon acceptance of any ADSs (or any
interest therein) issued in accordance with the terms of this Deposit
Agreement, shall be deemed for all purposes to (a) be a party to and bound
by the terms of this Deposit Agreement 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 this Deposit Agreement, 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 this Deposit Agreement (the taking
of such actions to be the conclusive determinant of the necessity and
appropriateness thereof).
2.2 FORM AND TRANSFERABILITY OF RECEIPTS.
(a) Definitive Receipts shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate
insertions, modifications and omissions, as hereinafter provided.
Receipts may be issued in denominations of any number of American
Depositary Shares. No definitive Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for
any purpose, unless such Receipt shall have been executed by the
Depositary by the manual or facsimile signature of a duly authorized
signatory of the Depositary. The Depositary shall maintain books on
which each Receipt so executed and delivered, in the case of
definitive Receipts, and each Receipt issued through the DRS/Profile,
in either case as hereinafter provided and the transfer of each such
Receipt shall be registered. Receipts in certificated form bearing the
manual or facsimile signature of a duly authorized signatory of the
Depositary who was at any time a proper signatory of the Depositary
shall bind the Depositary, notwithstanding that such signatory has
ceased to hold such office prior to the execution and delivery of such
Receipts by the Registrar or did not hold such office on the date of
issuance of such Receipts.
In addition to the foregoing, the Receipts may be endorsed with or
have incorporated in the text thereof such legends or recitals or
modifications not inconsistent with the provisions of this Deposit
Agreement as may be reasonably required by the Depositary in order to
comply with any applicable law or regulations thereunder or with the
rules and regulations of any securities exchange upon which American
Depositary Shares may be listed or to conform with any usage with
respect thereto, or to indicate any special limitations or
restrictions to which any particular Receipts are subject by reason of
the date of issuance of the underlying Deposited Securities or
otherwise.
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Notwithstanding anything in this Deposit Agreement or in the Receipt
to the contrary, to the extent available by the Depositary, American
Depositary Shares shall be evidenced by Receipts issued through
DRS/Profile unless certificated Receipts are specifically requested by
the Holder. Holders and Beneficial Owners shall be bound by the terms
and conditions of this Deposit Agreement and of the form of Receipt,
regardless of whether their Receipts are certificated or issued
through DRS/Profile.
(b) Subject to the limitations contained herein and in the form of
Receipt, title to a Receipt (and to the American Depositary Shares
evidenced thereby), when properly endorsed (in the case of
certificated Receipts) or upon delivery to the Depositary of proper
instruments of transfer, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument under the laws
of the State of New York; provided, however, that the Depositary,
notwithstanding any notice to the contrary, may treat the Holder
thereof as the absolute owner thereof for the purpose of determining
the person entitled to distribution of dividends or other
distributions or to any notice provided for in this Deposit Agreement
and for all other purposes and neither the Depositary nor the Company
will have any obligation or be subject to any liability under the
Deposit Agreement to any holder of a Receipt, unless such holder is
the Holder thereof.
2.3 DEPOSITS
(a) Subject to the terms and conditions of this Deposit Agreement and
applicable law, Shares or evidence of rights to receive Shares (other
than Restricted Securities) may be deposited by any person (including
the Depositary in its individual capacity but subject, however, in the
case of the Company or any Affiliate of the Company, to Section 5.7
hereof) at any time beginning on the 181st day after the date of the
prospectus contained in the registration statement on Form F-1 under
which the ADSs are first sold, whether or not the transfer books of
the Company or the Foreign Registrar, if any, are closed, by Delivery
of the Shares to the Custodian. No deposits shall be accepted under
this Deposit Agreement prior to such date. Every deposit of Shares
shall be accompanied by the following: (A)(i) in the case of Shares
issued in registered form, appropriate instruments of transfer or
endorsement, in a form satisfactory to the Custodian, (ii) in the case
of Shares issued in bearer form, such Shares or the certificates
representing such Shares and (iii) in the case of Shares delivered by
book-entry transfer, confirmation of such book-entry transfer to the
Custodian or that irrevocable instructions have been given to cause
such Shares to be so transferred, (B) such certifications and payments
(including, without limitation, the Depositary's fees and related
charges) and evidence of such payments (including, without limitation,
stamping or otherwise marking such Shares by way of receipt) as may be
required by the Depositary or the Custodian in accordance with the
provisions of this Deposit Agreement, (C) if the Depositary so
requires, a written order directing the Depositary to execute and
deliver to, or upon the written order of, the person or persons stated
in such order a Receipt or Receipts for the number of American
Depositary Shares representing the Shares so deposited, (D) evidence
satisfactory to the Depositary (which may include an opinion of
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counsel reasonably satisfactory to the Depositary provided at the cost
of the person seeking to deposit Shares) that all conditions to such
deposit have been met and all necessary approvals have been granted
by, and there has been compliance with the rules and regulations of,
any applicable governmental agency in the Republic of the Philippines,
and (E) if the Depositary so requires, (i) an agreement, assignment or
instrument satisfactory to the Depositary or the Custodian which
provides for the prompt transfer by any person in whose name the
Shares are or have been recorded to the Custodian of any distribution,
or right to subscribe for additional Shares or to receive other
property in respect of any such deposited Shares or, in lieu thereof,
such indemnity or other agreement as shall be satisfactory to the
Depositary or the Custodian and (ii) if the Shares are registered in
the name of the person on whose behalf they are presented for deposit,
a proxy or proxies entitling the Custodian to exercise voting rights
in respect of the Shares for any and all purposes until the Shares so
deposited are registered in the name of the Depositary, the Custodian
or any nominee. No Share shall be accepted for deposit unless
accompanied by confirmation or such additional evidence, if any is
required by the Depositary, that is reasonably satisfactory to the
Depositary or the Custodian that all conditions to such deposit have
been satisfied by the person depositing such Shares under the laws and
regulations of the Republic of the Philippines and any necessary
approval has been granted by any governmental body in the Republic of
the Philippines, if any, which is then performing the function of the
regulator of currency exchange. The Depositary may issue Receipts
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. Without limitation of the foregoing,
the Depositary shall not knowingly accept for deposit under this
Deposit Agreement any Shares required to be registered under the
provisions of the Securities Act of 1933, unless a registration
statement is in effect as to such Shares. The Depositary will use
commercially reasonable efforts to comply with reasonable written
instructions of the Company that the Depositary shall not accept for
deposit hereunder any Shares specifically identified in such
instructions at such times and under such circumstances as may
reasonably be specified in such instructions in order to facilitate
the Company's compliance with the securities laws in the United
States.
(b) As soon as practicable after receipt of any permitted deposit
hereunder and compliance with the provisions of this Deposit
Agreement, the Custodian shall present the Shares so deposited,
together with the appropriate instrument or instruments of transfer or
endorsement, duly stamped, to the Foreign Registrar for transfer and
registration of the Shares (as soon as transfer and registration can
be accomplished and at the expense of the person for whom the deposit
is made) in the name of the Depositary, the Custodian or a nominee of
either. Deposited Securities shall be held by the Depositary or by a
Custodian for the account and to the order of the Depositary or a
nominee, in each case for the account of the Holders and Beneficial
Owners, at such place or places as the Depositary or the Custodian
shall determine.
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(c) In the event any Shares are deposited which entitle the holders
thereof to receive a per-share distribution or other entitlement in an
amount different from the Shares then on deposit, the Depositary is
authorized to take any and all actions as may be necessary (including,
without limitation, making the necessary notations on Receipts) to
give effect to the issuance of such ADSs and to ensure that such ADSs
are not fungible with other ADSs issued hereunder until such time as
the entitlement of the Shares represented by such non-fungible ADSs
equals that of the Shares represented by ADSs prior to the original
such deposit. The Company agrees to give timely written notice to the
Depositary if any Shares issued or to be issued contain rights
different from those of any other Shares theretofore issued and shall
assist the Depositary with the establishment of procedures enabling
the identification of such non-fungible Shares upon Delivery to the
Custodian.
2.4 EXECUTION AND DELIVERY OF RECEIPTS
After the deposit of any Shares pursuant to Section 2.2, the Custodian
shall notify the Depositary of such deposit and the person or persons to
whom or upon whose written order a Receipt or Receipts are deliverable in
respect thereof and the number of American Depositary Shares to be
evidenced thereby. Such notification shall be made by letter, first class
airmail postage prepaid, or, at the request, risk and expense of the person
making the deposit, by cable, telex, SWIFT, facsimile or electronic
transmission. After receiving such notice from the Custodian, the
Depositary, subject to this Deposit Agreement (including, without
limitation, the payment of the fees, expenses, taxes and other charges
owing hereunder), shall issue the ADSs representing the Shares so deposited
to or upon the order of the person or persons named in the notice delivered
to the Depositary and shall execute and deliver a Receipt registered in the
name or names requested by such person or persons evidencing in the
aggregate the number of American Depositary Shares to which such person or
persons are entitled. Nothing herein shall prohibit any Pre-Release
Transaction, as defined in Section 2.10 hereof, upon the terms set forth in
this Deposit Agreement.
2.5 TRANSFER OF RECEIPTS; COMBINATION AND SPLIT-UP OF RECEIPTS.
(a) Transfer
The Depositary, or, if a Registrar (other than the Depositary) for the
Receipts shall have been appointed, the Registrar, subject to the
terms and conditions of this Deposit Agreement, 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 in the case of a
certificated Receipt or accompanied by, or in the case of DRS/Profile
Receipts receipt by the Depositary of, 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 and any other applicable law.
Subject to the terms and conditions of this Deposit Agreement,
including payment of the applicable fees and charges of the Depositary
set forth in Section 5.9 and Exhibit B hereto, the Depositary shall
execute a new Receipt or Receipts and deliver the same to or upon the
order of the person entitled thereto evidencing the same
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aggregate number of American Depositary Shares as those evidenced by
the Receipts surrendered.
(b) Combination & Split Up
The Depositary, subject to the terms and conditions of this Deposit
Agreement shall, upon surrender of a Receipt or Receipts for the
purpose of effecting a split-up or combination of such Receipt or
Receipts and upon payment to the Depositary of the applicable fees and
charges set forth in Section 5.9 and Exhibit B hereto, execute and
deliver a new Receipt or Receipts for any authorized number of
American Depositary Shares requested, evidencing the same aggregate
number of American Depositary Shares as the Receipt or Receipts
surrendered.
(c) Co-Transfer Agents
The Depositary may appoint one or more co-transfer agents for the
purpose of effecting transfers, combinations and split-ups of Receipts
at designated transfer offices on behalf of the Depositary. In
carrying out its functions, a co-transfer agent may require evidence
of authority and compliance with applicable laws and other
requirements by Holders or persons entitled to such Receipts and will
be entitled to protection and indemnity, in each case to the same
extent as the Depositary. Such co-transfer agents may be removed and
substitutes appointed by the Depositary. Each co-transfer agent
appointed under this Section 2.5 (other than the Depositary) shall
give notice in writing to the Depositary accepting such appointment
and agreeing to be bound by the applicable terms of this Deposit
Agreement.
(d) At the request of a Holder, the Depositary shall, for the purpose of
substituting a certificated Receipt with a Receipt issued through
DRS/Profile, or vice versa, execute and deliver a certificated Receipt
or DRS/Profile statement, as the case may be, for any authorized
number of American Depositary Shares requested, evidencing the same
aggregate number of American Depositary Shares as those evidenced by
the certificated Receipt or DRS/Profile statement, as the case may be,
substituted.
2.6 SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED SECURITIES
Upon surrender, at the Principal Office of the Depositary, of American
Depositary Shares for the purpose of withdrawal of the Deposited Securities
represented thereby, and upon payment of (i) the fees and charges of the
Depositary for the making of withdrawals of Deposited Securities and
cancellation of Receipts (as set forth in Section 5.9 and Exhibit B hereof)
and (ii) all applicable taxes and governmental charges payable in
connection with such surrender and withdrawal, and subject to the terms and
conditions of this Deposit Agreement, the Company's Articles of
Incorporation and Bylaws, Section 7.9 hereof and any other provisions of or
governing the Deposited Securities and other applicable laws, the Holder of
such American Depositary Shares shall be entitled to Delivery, to him or
upon his order, of the Deposited Securities at the time represented by the
American Depositary Shares so surrendered. American Depositary Shares may
be surrendered for the purpose of withdrawing Deposited Securities by
delivery of a Receipt evidencing such American
9
Depositary Shares (if held in certificated form) or by book-entry delivery
of such American Depositary Shares 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 or through a book entry delivery of the Shares (in either
case, subject to Sections 2.7, 3.1, 3.2, 5.9, and to the other terms and
conditions of this Deposit Agreement, to the Company's Articles of
Incorporation and Bylaws, to the provisions of or governing the Deposited
Securities and to 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 American Depositary Shares, together with any
certificate or other proper documents of or relating to title of the
Deposited Securities as may be legally required, as the case may be, to or
for the account of such person.
The Depositary may, in its discretion, refuse to accept for surrender a
number of American Depositary Shares representing a number other than a
whole number of Shares. In the case of surrender of a Receipt evidencing a
number of American Depositary Shares 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
surrendered and remit the proceeds of such sale (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. Upon receipt by the Depositary, the Depositary may make
delivery to such person or persons entitled thereto at the Principal Office
of the Depositary of any dividends or cash distributions with respect to
the Deposited Securities represented by such American Depositary Shares, or
of any proceeds of sale of any dividends, distributions or rights, which
may at the time be held by the Depositary.
10
2.7 LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, ETC. OF RECEIPTS;
SUSPENSION OF DELIVERY, TRANSFER, ETC
(a) Additional Requirements
As a condition precedent to the execution and delivery, registration,
registration of transfer, split-up, combination or surrender of any
Receipt, the delivery of any distribution thereon 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 Section 5.9 and Exhibit B hereof,
(ii) the production of proof satisfactory to it as to the identity and
genuineness of any signature or any other matter contemplated by
Section 3.1 hereof and (iii) compliance with (A) any laws or
governmental regulations relating to the execution and delivery of
Receipts or American Depositary Shares or to the withdrawal or
delivery of Deposited Securities and (B) such reasonable regulations
as the Depositary may establish consistent with the provisions of this
Deposit Agreement and applicable law.
(b) Additional Limitations
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 transfers 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 on which
the Receipts or Shares are listed, or under any provision of this
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 Section 7.9.
2.8 LOST RECEIPTS, ETC.
In case any Receipt shall be mutilated, destroyed, lost or stolen, unless
the Depositary has notice that such ADR has been acquired by a bona fide
purchaser, subject to Section 5.9 hereof, the Depositary shall execute and
deliver a new Receipt (which, in the discretion of the Depositary may be
issued through DRS/Profile unless specifically requested otherwise) in
exchange and substitution for such mutilated Receipt upon cancellation
thereof, or in lieu of and in substitution for such destroyed, lost or
stolen Receipt. Before the Depositary shall execute and deliver a new
Receipt in substitution for a destroyed, lost or stolen Receipt, the Holder
thereof shall have (a) filed with the Depositary (i) a request for such
execution and delivery before the Depositary has notice that the Receipt
has been acquired by a bona fide purchaser and
11
(ii) a sufficient indemnity bond in form and amount acceptable to the
Depositary and (b) satisfied any other reasonable requirements imposed by
the Depositary.
2.9 CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS; MAINTENANCE OF
RECORDS
All Receipts surrendered to the Depositary shall be cancelled by the
Depositary. The Depositary is authorized to destroy Receipts so cancelled
in accordance with its customary practices. Cancelled Receipts shall not be
entitled to any benefits under this Deposit Agreement or be valid or
obligatory for any purpose.
2.10 PRE-RELEASE
Subject to the further terms and provisions of this Section 2.10, 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. In its capacity as Depositary, the Depositary may (i) issue ADSs
prior to the receipt of Shares (each such transaction a "PRE-RELEASE
TRANSACTION") as provided below and (ii) deliver Shares upon the receipt
and cancellation of ADSs that were issued in a Pre-Release Transaction, but
for which Shares may not yet have been received. 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) 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, United States
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 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 the earnings thereon, shall be held for the benefit of the
Holders (other than the Applicant).
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3. CERTAIN OBLIGATIONS OF HOLDERS AND BENEFICIAL OWNERS OF RECEIPTS
3.1 PROOFS, CERTIFICATES AND OTHER INFORMATION
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 or the Custodian 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 this Deposit Agreement and the provisions
of, or governing, the Deposited Securities or other information; to execute
such certifications and to make such representations and warranties, and to
provide such other information and documentation as the Depositary may deem
necessary or proper or as the Company may reasonably require by written
request to the Depositary consistent with its obligations hereunder. The
Depositary and the Registrar, as applicable, may withhold the execution or
delivery or registration of transfer of any Receipt or the distribution or
sale of any dividend or distribution of rights or of the proceeds thereof,
or to the extent not limited by the terms of Section 7.9 hereof, the
delivery of any Deposited Securities, until such proof or other information
is filed or such certifications are executed, or such representations and
warranties are made, or such other documentation or information provided,
in each case to the Depositary's and the Company's satisfaction. The
Depositary shall from time to time on the written request advise the
Company of the availability of any such proofs, certificates or other
information and shall, at the Company's sole expense, provide or otherwise
make available copies thereof to the Company upon written request thereof
by the Company, unless such disclosure is prohibited by law. Each Holder
and Beneficial Owner agrees to provide any information requested by the
Company or the Depositary pursuant to this paragraph. Nothing herein shall
obligate the Depositary to (i) obtain any information for the Company if
not provided by the Holders or Beneficial Owners or (ii) verify or vouch
for the accuracy of the information so provided by the Holders or
Beneficial Owners.
3.2 LIABILITY FOR TAXES AND OTHER CHARGES
If any present or future tax or other governmental charge shall become
payable by the Depositary or the Custodian with respect to any ADR or any
Deposited Securities or American Depositary Shares, such tax or other
governmental charge shall be payable by the Holders and Beneficial Owners
to the Depositary and such Holders and Beneficial Owners shall be deemed
liable therefor. 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 a 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 remaining
fully liable for any deficiency. In addition to any other remedies
available to it, the Depositary and the Custodian may refuse the deposit of
Shares, and the Depositary may refuse to issue ADSs, to deliver ADRs,
register the transfer, split-up or combination of ADRs and (subject to
Section 7.9) 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
13
their respective agents, officers, directors, employees and Affiliates for,
and to 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. The obligations
of Holders and Beneficial Owners of Receipts under this Section 3.2 shall
survive any transfer of Receipts, any surrender of Receipts and withdrawal
of Deposited Securities, or the termination of this Deposit Agreement.
3.3 REPRESENTATIONS AND WARRANTIES ON DEPOSIT OF SHARES
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 American Depositary Shares 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, the issuance and cancellation of American Depositary
Shares in respect thereof and the transfer of such American Depositary
Shares. If any such representations or warranties are false in any way, the
Company and the 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.
3.4 COMPLIANCE WITH INFORMATION REQUESTS
Notwithstanding any other provision of this Deposit Agreement, the Articles
of Incorporation and Bylaws of the Company and applicable law, each Holder
and Beneficial Owner agrees to (a) provide such information as the Company
or the Depositary may request pursuant to applicable law (including,
without limitation, relevant laws of the Republic of the Philippines and
any applicable law of the United States), the Articles of Incorporation and
Bylaws of the Company, any resolutions of the Company's Board of Directors
adopted pursuant to such Articles of Incorporation and Bylaws, the
requirements of any markets or exchanges upon which the Shares, ADSs or
Receipts are listed or traded, or to any requirements of any electronic
book-entry system by which the ADSs or Receipts may be transferred, and (b)
be bound by and subject to applicable provisions of the laws of the
Republic of the Philippines, the Articles of Incorporation and Bylaws of
the Company and the requirements of any markets or exchanges upon which the
ADSs, Receipts or Shares are listed or traded, or pursuant to any
requirements of any electronic book-entry system by which the ADSs,
Receipts or Shares may be transferred, to the same extent as if such Holder
and Beneficial Owner held Shares directly, in each case irrespective of
whether or not they are Holders or Beneficial Owners at the time such
request is made. The Depositary agrees to use its reasonable efforts to
forward upon the request of the Company, and at the Company's expense, any
such request from the Company to the Holders and to forward to the Company
any such responses to such requests received by the Depositary.
14
4. THE DEPOSITED SECURITIES
4.1 CASH DISTRIBUTIONS
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 terms hereof, the Depositary
will, if at the time of receipt thereof any amounts received in a foreign
currency can in the judgment of the Depositary (pursuant to Section 4.6
hereof) be converted on a practicable basis into Dollars transferable to
the United States, promptly convert or cause to be converted such cash
dividend, distribution or proceeds into Dollars (on the terms described in
Section 4.6) and will distribute promptly the amount thus received (net of
(a) the applicable fees and charges of, and expenses incurred by, the
Depositary and (b) taxes withheld) to the Holders of record as of the ADS
Record Date in proportion to the number of American Depositary Shares 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. Holders and Beneficial Owners understand that in
converting Foreign Currency, amounts received on conversion are calculated
at a rate which exceeds three or four decimal places (the number of decimal
places used by the Depositary to report distribution rates). The 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. 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 American Depositary
Shares 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. Evidence of payment
thereof by the Company shall be forwarded by the Company to the Depositary
upon request. The Depositary will forward to the Company or its agent such
information from its records as the Company may reasonably request to
enable the Company or its agent to file necessary reports with governmental
agencies, such reports necessary to obtain benefits under the applicable
tax treaties for the Holders and Beneficial Owners of Receipts.
4.2 DISTRIBUTION IN SHARES
If any distribution upon any Deposited Securities consists of a dividend
in, or free distribution of, Shares, the Company shall 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 any of their nominees. Upon
receipt of confirmation of such deposit from the Custodian, the Depositary
shall establish the ADS Record Date upon the terms described in Section 4.7
and shall, subject to Section 5.9 hereof, either (i) distribute to the
Holders as of the ADS Record Date in proportion to the number of American
Depositary Shares held as of the ADS Record Date, additional American
Depositary Shares, which represent in the aggregate the number of Shares
received as such dividend, or free distribution, subject to the other terms
of this Deposit Agreement (including, without limitation, (a) the
applicable fees and charges of, and
15
expenses incurred by, the Depositary and (b) taxes), or (ii) if additional
American Depositary Shares are not so distributed, each American Depositary
Share issued and outstanding after the ADS Record Date shall, to the extent
permissible by law, thenceforth also represent rights and interests in the
additional Shares distributed upon the Deposited Securities represented
thereby (net of (a) the applicable fees and charges of, and expenses
incurred by, the Depositary and (b) taxes). In lieu of delivering
fractional American Depositary Shares, the Depositary shall sell the number
of Shares represented by the aggregate of such fractions and distribute the
proceeds upon the terms described in Section 4.1. The Depositary may
withhold any such distribution of Receipts if it has not received
satisfactory assurances from the Company (including an opinion of counsel
to the Company furnished at the expense of the Company) that such
distribution does not require registration under the Securities Act or is
exempt from registration under the provisions of the Securities Act. To the
extent such distribution may be withheld, the Depositary may dispose of all
or a portion of such distribution 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 applicable (a) taxes and (b) fees and charges
of, and expenses incurred by, the Depositary) to Holders entitled thereto
upon the terms described in Section 4.1.
4.3 ELECTIVE DISTRIBUTIONS IN CASH OR SHARES
Whenever the Company intends to distribute a dividend payable at the
election of the holders of Shares in cash or in additional Shares, the
Company shall give notice thereof to the Depositary at least 30 days prior
to the proposed distribution stating whether or not it wishes such elective
distribution to be made available to Holders of ADSs. Upon receipt of
notice indicating that the Company wishes such elective distribution to be
made available to Holders of ADSs, the Depositary shall consult with the
Company to determine, and the Company shall assist the Depositary in its
determination, whether it is lawful and reasonably practicable to make such
elective distribution available to the Holders of ADSs. The Depositary
shall make such elective distribution available to Holders only if (i) the
Company shall have timely requested that the elective distribution is
available to Holders of ADRs, (ii) the Depositary shall have determined
that such distribution is reasonably practicable and (iii) the Depositary
shall have received satisfactory documentation within the terms of Section
5.7. If the above conditions are not satisfied, the Depositary shall, to
the extent permitted by law, distribute to the 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 upon the terms described in
Section 4.1 or (y) additional ADSs representing such additional Shares upon
the terms described in Section 4.2. If the above conditions are satisfied,
the Depositary shall establish an ADS Record Date (on the terms described
in Section 4.7) and establish procedures to enable Holders to elect the
receipt of the proposed dividend in cash or in additional ADSs. The Company
shall assist the Depositary in establishing such procedures to the extent
necessary. Subject to Section 5.9 hereof, if a Holder elects to receive the
proposed dividend (x) in cash, the dividend shall be distributed upon the
terms described in Section 4.1, or (y) in ADSs, the dividend shall be
distributed upon the terms described in Section 4.2. Nothing herein shall
obligate the Depositary to make available to Holders a method to receive
the elective dividend in Shares (rather than ADSs). There can be no
assurance that Holders generally, or any Holder in particular,
16
will be given the opportunity to receive elective distributions on the same
terms and conditions as the holders of Shares.
4.4 DISTRIBUTION OF RIGHTS TO PURCHASE SHARES
(a) Distribution to ADS Holders
Whenever the Company intends to distribute to the holders of the
Deposited Securities rights to subscribe for additional Shares, the
Company shall give notice thereof to the Depositary at least 60 days
prior to the proposed distribution stating whether or not it wishes
such rights to be made available to Holders of ADSs. Upon receipt of a
notice indicating that the Company wishes such rights to be made
available to Holders of ADSs, the Depositary shall consult with the
Company to determine, and 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 Holders
only if (i) the Company shall have timely requested that such rights
be made available to Holders, (ii) the Depositary shall have received
satisfactory documentation within the terms of Section 5.7, and (iii)
the Depositary shall have determined that such distribution of rights
is lawful and reasonably practicable. In the event any of the
conditions set forth above are not satisfied, the Depositary shall
proceed with the sale of the rights as contemplated in Section 4.4(b)
below or, if timing or market conditions may not permit, do nothing
thereby allowing such rights to lapse. In the event all conditions set
forth above are satisfied, the Depositary shall establish an ADS
Record Date (upon the terms described in Section 4.7) 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 applicable (a) fees and charges of, and expenses incurred
by, the Depositary and (b) taxes and other governmental charges).
Nothing herein shall obligate the Depositary to make available to the
Holders a method to exercise such rights to subscribe for Shares
(rather than ADSs).
(b) Sale of Rights
If (i) the Company does not timely request the Depositary to make the
rights available to Holders or requests that the rights not be made
available to Holders, (ii) the Depositary fails to receive
satisfactory documentation within the terms of Section 5.7 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 or private sale) as it may deem
proper. The Company shall assist the Depositary to the extent
necessary to determine such legality and practicability. The
Depositary shall, upon such sale, convert and distribute proceeds of
such sale (net of applicable (a) fees and charges of, and expenses
incurred by, the Depositary and (b) taxes) upon the terms set forth in
Section 4.1.
17
(c) Lapse of Rights
If the Depositary is unable to make any rights available to Holders
upon the terms described in Section 4.4(a) or to arrange for the sale
of the rights upon the terms described in Section 4.4(b), 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 practicable 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 to the contrary in this Section 4.4, 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 at its expense the
Depositary with 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 satisfactory 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.
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 be able 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.
4.5 DISTRIBUTIONS OTHER THAN CASH, SHARES OR RIGHTS TO PURCHASE SHARES
(a) Whenever the Company intends to distribute to the holders of Deposited
Securities property other than cash, Shares or rights to purchase
additional Shares, the Company shall give notice thereof to the
Depositary at least 30 days prior to the proposed distribution and
shall indicate whether or not it wishes such distribution to be made
to Holders of ADSs. Upon receipt of a notice indicating that the
Company wishes such distribution be made to Holders of ADSs, the
Depositary shall determine whether such distribution to
18
Holders is lawful and 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 satisfactory documentation within the terms of
Section 5.7, and (iii) the Depositary shall have determined that such
distribution is reasonably practicable.
(b) Upon receipt of satisfactory documentation and the request of the
Company to distribute property to Holders of ADSs and after making the
requisite determinations set forth in (a) above, the Depositary may
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 and other
governmental charges 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.
(c) If (i) the Company does not request the Depositary to make such
distribution to Holders or requests not to make such distribution to
Holders, (ii) the Depositary does not receive satisfactory
documentation within the terms of Section 5.7, or (iii) the Depositary
determines that all or a portion of such distribution is not
reasonably practicable or feasible, the Depositary shall endeavour to
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 net proceeds, if any, of such sale received by
the Depositary (net of applicable (a) fees and charges of, and
expenses incurred by, the Depositary and (b) taxes) to the Holders as
of the ADS Record Date upon the terms of Section 4.1. 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 for nominal or no consideration and Holders and
Beneficial Owners shall have no rights thereto or arising therefrom.
4.6 CONVERSION OF FOREIGN CURRENCY
Whenever the Depositary or the Custodian shall receive Foreign Currency, by
way of dividends or other distributions or the net proceeds from the sale
of securities, property or rights, and in the judgment of the Depositary
such Foreign Currency can at such time be converted on a practicable basis
(by sale or in any other manner that it may determine in accordance with
applicable law) into Dollars transferable to the United States and
distributable to the Holders entitled thereto, the Depositary shall convert
or cause to be converted, by sale or in any other manner that it may
determine, such Foreign Currency into Dollars, and shall distribute such
Dollars (net of any fees, expenses, taxes or other governmental charges
incurred in the process of such conversion) in accordance with the terms of
the applicable sections of this Deposit Agreement. If the Depositary shall
have distributed warrants or other instruments that entitle the holders
thereof to such Dollars, the Depositary shall distribute such Dollars to
the holders of such warrants and/or instruments upon
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surrender thereof for cancellation, in either case without liability for
interest thereon. Such distribution may be made upon an averaged or other
practicable basis without regard to any distinctions among Holders on
account of exchange restrictions, the date of delivery of any Receipt or
otherwise.
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.
If such conversion or distribution can be effected only with the approval
or license of any government or agency thereof, the Depositary may file
such application for approval or license, if any, as it may deem necessary,
practicable and at nominal cost and expense. Nothing herein shall obligate
the Depositary to file or cause to be filed, or to seek effectiveness of
any such application or license.
If at any time the Depositary shall determine that in its judgment the
conversion of any Foreign Currency and the transfer and distribution of
proceeds of such conversion received by the Depositary is not practical or
lawful, or if any approval or license of any governmental authority or
agency thereof that is required for such conversion, transfer and
distribution is denied, or not obtainable at a reasonable cost, within a
reasonable period or otherwise sought, the Depositary shall, in its sole
discretion but subject to applicable laws and regulations, either (i)
distribute the foreign currency (or an appropriate document evidencing the
right to receive such foreign currency) received by the Depositary to the
Holders entitled to receive such foreign currency, or (ii) hold such
foreign currency uninvested and without liability for interest thereon for
the respective accounts of the Holders entitled to receive the same.
4.7 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 American Depositary Share, or whenever the Depositary shall receive
notice of any meeting of or solicitation of holders of Shares or other
Deposited Securities, or whenever the Depositary shall find it necessary or
convenient, the Depositary shall fix a record date (the "ADS RECORD DATE"),
as close as practicable to the record date fixed by the Company with
respect to the Shares, 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 American Depositary Share. Subject to
applicable law and the provisions of Section 4.1 through 4.6 and to the
other terms and conditions of this 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 distribution, to give such voting instructions,
to receive such notice or solicitation, or otherwise take action.
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4.8 VOTING OF DEPOSITED SECURITIES
Subject to the next sentence, 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 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) and at the Company's expense and provided
no U.S. legal prohibitions exist, mail by regular, ordinary mail delivery
or otherwise distribute to Holders as of the ADS Record Date: (a) such
notice of meeting or solicitation of consent or proxy; (b) a statement that
the Holders at the close of business on the ADS Record Date will be
entitled, subject to any applicable law, the Company's Articles of
Incorporation and Bylaws and the provisions of or governing the 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 American Depositary Shares; and (c)
a brief statement as to the manner in which such instructions may be given.
Voting instructions may be given only in respect of a number of American
Depositary Shares representing an integral number of Shares or other
Deposited Securities. Upon the timely receipt of written instructions of a
Holder of American Depositary Shares on the ADS Record Date of voting
instructions in the manner specified by the Depositary, the Depositary
shall endeavour, insofar as practicable and permitted under applicable law,
the provisions of this Deposit Agreement, the Company's Articles of
Incorporation and Bylaws and the provisions of or governing the Deposited
Securities, to vote or cause the Custodian to vote the Shares and/or other
Deposited Securities (in person or by proxy) represented by American
Depositary Shares evidenced by such Receipt in accordance with such voting
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 American Depositary Shares
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, save for applicable provisions of Philippine
law, and in accordance with the terms of Section 5.3, the Depositary shall
not be liable for any failure to carry out any instructions to vote any of
the Deposited Securities.
4.9 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 is otherwise a party, any securities
which shall be received by the Depositary or the Custodian in exchange for,
or in conversion of or replacement or otherwise in respect
21
of, such Deposited Securities shall, to the extent permitted by law, be
treated as new Deposited Securities under this Deposit Agreement, and the
Receipts shall, subject to the provisions of this Deposit Agreement and
applicable law, evidence American Depositary Shares 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 an opinion of
counsel to the Company furnished at the Company's expense satisfactory to
the Depositary that such distributions are not in violation of any
applicable laws or regulations, 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 the form of Receipt contained in Exhibit A hereto,
specifically describing such new Deposited Securities and/or corporate
change. The Company agrees to, jointly with the Depositary, amend the
Registration Statement on Form F-6 as filed with the Commission to permit
the issuance of such new form of Receipts. 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 an opinion of the
Company's counsel furnished at the Company's expense reasonably
satisfactory to the Depositary that such action is not in violation of any
applicable laws or regulations, 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 (a) fees and charges
of, and expenses incurred by, the Depositary and (b) taxes) for the account
of the Holders otherwise entitled to such securities upon an averaged or
other practicable basis without regard to any distinctions among such
Holders and distribute the net proceeds so allocated to the extent
practicable as in the case of a distribution received in cash pursuant to
Section 4.1. 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 to 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.
4.10 AVAILABLE INFORMATION
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.
4.11 REPORTS
The Depositary shall make available during normal business hour 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 Company agrees to provide to the Depositary,
at the Company's expense, all documents that it provides to the Custodian.
The Depositary shall, at the expense of the Company and in accordance with
Section 5.6, also mail by regular, ordinary mail delivery or by electronic
22
transmission (if agreed by the Company and the Depositary) and unless
otherwise agreed in writing by the Company and the Depositary, to Holders
copies of such reports when furnished by the Company pursuant to Section
5.6.
4.12 LIST OF HOLDERS
Promptly upon written request by the Company, the Depositary shall, at the
expense of the Company, furnish to it a list, as of a recent date, of the
names, addresses and holdings of American Depositary Shares by all persons
in whose names Receipts are registered on the books of the Depositary.
4.13 TAXATION; WITHHOLDING
The Depositary will, and will instruct the Custodian to, forward to the
Company or its agents such information from its records as the Company may
reasonably request to enable the Company or its agents to file necessary
tax reports with governmental authorities or agencies. The Depositary, the
Custodian or the Company and its agents may, but shall not be obligated to,
file such reports as are necessary to reduce or eliminate applicable taxes
on dividends and on other distributions in respect of Deposited Securities
under applicable tax treaties or laws for the Holders and Beneficial
Owners. Holders and Beneficial Owners of American Depositary Shares may be
required from time to time, and in a timely manner, to file such proof of
taxpayer status, residence and beneficial ownership (as applicable), to
execute such certificates and to make such representations and warranties,
or to provide any other information or documents, as the Depositary or the
Custodian may deem necessary or proper to fulfil the Depositary's or the
Custodian's obligations under applicable law. The Holders and Beneficial
Owners shall indemnify the Depositary, the Company, the Custodian and any
of their respective directors, employees, agents and Affiliates against,
and hold each of them harmless from, any claims by any governmental
authority with respect to taxes, additions to tax, penalties or interest
arising out of any refund of taxes, reduced rate of withholding at source
or other tax benefit obtained.
The Company shall remit to the appropriate governmental authority or agency
any amounts required to be withheld by the Company and owing to such
governmental authority or agency. Upon any such withholding, the Company
shall remit to the Depositary information about such taxes or governmental
charges withheld or paid, and, if so requested, the tax receipt (or other
proof of payment to the applicable governmental authority) therefor, in
each case, in a form satisfactory to the Depositary. The Depositary shall,
to the extent required by U.S. law, report to Holders: (i) any taxes
withheld by it; (ii) any taxes withheld by the Custodian, subject to
information being provided to the Depositary by the Custodian; and (iii)
any taxes withheld by the Company, subject to information being provided to
the Depositary by the Company. The Depositary and the Custodian shall not
be required to provide the Holders with any evidence of the remittance by
the Company (or its agents) of any taxes withheld, or of the payment of
taxes by the Company, except to the extent the evidence is provided by the
Company to the Depositary. Neither the Depositary nor the Custodian shall
be liable for the failure by any Holder or Beneficial Owner to obtain the
benefits of credits on the basis of non-U.S. tax paid against such Holder's
or Beneficial Owner's income tax liability.
23
In the event that the Depositary determines that any distribution in
property (including Shares and rights to subscribe therefor) is subject to
any tax or other governmental charge which the Depositary is obligated to
withhold, the Depositary shall withhold the amount required to be withheld
and may by public or private sale dispose of all or a portion of such
property (including Shares and rights to subscribe therefor) in such
amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes or charges and the Depositary shall
distribute the net proceeds of any such sale after deduction of such taxes
or charges to the Holders entitled thereto in proportion to the number of
American Depositary Shares held by them respectively.
The Depositary is under no obligation to provide the Holders and Beneficial
Owners with any information about the tax status of the Company. The
Depositary shall not incur any liability for any tax consequences that may
be incurred by Holders and Beneficial Owners on account of their ownership
of the American Depositary Shares.
5. THE DEPOSITARY, THE CUSTODIAN AND THE COMPANY
5.1 MAINTENANCE OF OFFICE AND TRANSFER BOOKS BY THE REGISTRAR
Until termination of this Deposit Agreement in accordance with its terms,
the Depositary or if a Registrar for the Receipts shall have been
appointed, the Registrar shall maintain in the Borough of Manhattan, the
City of New York, an office and facilities for the execution and delivery,
registration, registration of transfers, combination and split-up of
Receipts, the surrender of Receipts and the delivery and withdrawal of
Deposited Securities in accordance with the provisions of this Deposit
Agreement.
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 this
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 connection with the performance of
its duties hereunder.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more stock exchanges or automated quotation systems in the
United States, the Depositary shall act as Registrar or appoint a Registrar
or one or more co-registrars for registration of Receipts and transfers,
combinations and split-ups, and to countersign such Receipts in accordance
with any requirements of such exchanges or systems. Such Registrar or
co-registrars may be removed and a substitute or substitutes appointed by
the Depositary.
If any Receipts or the American Depositary Shares evidenced thereby are
listed on one or more securities exchanges, markets or automated quotation
systems, (i) the Depositary shall be entitled to, and shall, take or
refrain from taking such action(s) as it may deem necessary or appropriate
to comply with the requirements of such
24
securities exchange(s), market(s) or automated quotation system(s)
applicable to it, notwithstanding any other provision of this Deposit
Agreement; and (ii) upon the reasonable request of the Depositary, the
Company shall provide the Depositary such information and assistance as may
be reasonably necessary for the Depositary to comply with such
requirements, to the extent that the Company may lawfully do so.
5.2 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 this
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 delayed in, doing or performing
any act or thing required by the terms of this Deposit Agreement, by reason
of any provision of any present or future law or regulation of the United
States or any state thereof, the Republic of Philippines or any other
country, or of any other governmental authority or regulatory authority or
stock exchange, or on account of the possible criminal or civil penalties
or restraint, 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 this 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 the 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 this Deposit Agreement, made available to Holders of American
Depositary Shares or (v) for any special, consequential, indirect or
punitive damages for any breach of the terms of this Deposit Agreement or
otherwise.
The Depositary, its controlling persons, its agents, the 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 this Deposit Agreement.
5.3 STANDARD OF CARE
The Company and the Depositary and their respective agents assume no
obligation and shall not be subject to any liability under this Deposit
Agreement or any Receipts to any Holder(s) or Beneficial Owner(s) or other
persons, except in accordance with Section 5.8 hereof, provided, that the
Company and the Depositary and their respective agents agree to perform
their respective obligations specifically set forth in
25
this Deposit Agreement or the applicable ADRs without gross negligence,
wilful misconduct or bad faith.
Without limitation of the foregoing, neither the Depositary, nor the
Company, nor any of their respective controlling persons, or agents, shall
be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding in respect of any Deposited Securities or in respect of
the Receipts, which in its opinion may involve it in expense or liability,
unless indemnity satisfactory to it against all expenses (including fees
and disbursements of counsel) and liabilities be furnished as often as may
be required (and no Custodian shall be under any obligation whatsoever with
respect to such proceedings, the responsibility of the Custodian being
solely to the Depositary).
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 effects of any vote. 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 this Deposit Agreement or
for the failure or timeliness of any notice from the Company, or for any
action or non action by it in reliance upon the opinion, advice of or
information from legal counsel, accountants, any person representing Shares
for deposit, any Holder or any other person believed by it in good faith to
be competent to give such advice or information. The Depositary and its
agents shall not be liable for any acts or omissions made by a successor
depositary whether in connection with a previous act or omission of the
Depositary or in connection with any matter arising wholly after the
removal or resignation of the Depositary, provided that in connection with
the issue out of which such potential liability arises the Depositary
performed its obligations without gross negligence, wilful misconduct or
bad faith while it acted as Depositary.
5.4 RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
DEPOSITARY
The Depositary may at any time resign as Depositary hereunder 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 (whereupon the Depositary shall, in the event no successor
depositary has been appointed by the Company, be entitled to take the
actions contemplated in Section 6.2 hereof), or (ii) upon the appointment
by the Company of a successor depositary and its acceptance of such
appointment as hereinafter provided, save that, any amounts, fees, costs or
expenses owed to the Depositary hereunder 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
26
delivery by the Depositary of written notice of resignation as provided in
this paragraph. In the event that notice of the appointment of a successor
depositary is not provided by the Company in accordance with the preceding
sentence, the Depositary shall be entitled to take the actions contemplated
in Section 6.2 hereof.
The Depositary may at any time be removed by the Company by written notice
of such removal, which removal shall be effective on the later of (i) the
90th day after delivery thereof to the Depositary (whereupon the Depositary
shall be entitled to take the actions contemplated in Section 6.2 hereof),
or (ii) upon the appointment by the Company of a successor depositary and
its acceptance of such appointment as hereinafter provided, save that, any
amounts, fees, costs or expenses owed to the Depositary hereunder 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 be required by the Company to 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 (except as required by applicable law), shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor. The predecessor depositary, upon payment of all sums due to 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 Sections 5.8 and 5.9),
(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.
5.5 THE CUSTODIAN
The Custodian or its successors in acting hereunder shall be subject at all
times and in all respects to the direction of the Depositary for the
Deposited Securities for which the Custodian acts as custodian and shall be
responsible solely to it. If any Custodian resigns or is discharged from
its duties hereunder with respect to any Deposited Securities and no other
Custodian has previously been appointed hereunder, the Depositary shall
promptly appoint a substitute custodian. The Depositary shall require such
resigning or discharged Custodian to deliver the Deposited Securities held
by it, together with all such records maintained by it as Custodian with
respect to such Deposited Securities as the Depositary may request, to the
Custodian designated by the Depositary. Whenever the Depositary determines,
in its discretion, that it is appropriate to do so, it may appoint an
additional entity to act as Custodian with respect to any Deposited
Securities, or discharge the Custodian with respect to any
27
Deposited Securities and appoint a substitute custodian, which shall
thereafter be Custodian hereunder with respect to the Deposited Securities.
After any such change, the Depositary shall give notice thereof in writing
to all Holders.
Upon the appointment of any successor depositary, any Custodian then acting
hereunder shall, unless otherwise instructed by the Depositary, continue to
be the Custodian of the Deposited Securities without any further act or
writing and shall be subject to the direction of the successor depositary.
The successor depositary so appointed shall, nevertheless, on the written
request of any Custodian, execute and deliver to such Custodian all such
instruments as may be proper to give to such Custodian full and complete
power and authority to act on the direction of such successor depositary.
5.6 NOTICES AND REPORTS
On or before the first date on which the Company gives notice, by
publication or otherwise, of any meeting of holders of Shares or other
Deposited Securities, or of any adjourned meeting of such holders, or of
the taking of any action by such holders other than at a meeting, or of the
taking of any action in respect of any cash or other distributions or the
offering of any rights in respect of Deposited Securities, the Company
shall transmit to the Depositary and the Custodian a copy of the notice
thereof in English but otherwise in the form given or to be given to
holders of Shares or other Deposited Securities. The Company shall also
furnish to the Custodian and the Depositary a summary, in English, of any
applicable provisions or proposed provisions of the Company's Articles of
Incorporation and Bylaws that may be relevant or pertain to such notice of
meeting or be the subject of a vote thereat.
The Company will also transmit to the Depositary (a) English language
versions of the other notices, reports and communications which are made
generally available by the Company to holders of its Shares or other
Deposited Securities and (b) English language versions of the Company's
annual and other reports prepared in accordance with the applicable
requirements of the Commission. The Depositary shall arrange, at the
request of the Company and at the Company's expense, for the mailing of
copies thereof to all Holders, or by any other means as agreed between the
Company and the Depositary (at the Company's expense) or make such notices,
reports and other communications available for inspection by all Holders,
provided, that, the Depositary shall have received evidence sufficiently
satisfactory to it, including in the form of an opinion of local and/or
U.S. counsel or counsel of other applicable jurisdiction, furnished at the
expense of the Company, as the Depositary in its discretion so requests,
that the distribution of such notices, reports and any such other
communications to Holders from time to time is valid and does not or will
not infringe any local, U.S. or other applicable jurisdiction regulatory
restrictions or requirements if so distributed and made available to
Holders. The Company will timely provide the Depositary with the quantity
of such notices, reports, and communications, as requested by the
Depositary from time to time, in order for the Depositary to effect such
mailings. The Company has delivered to the Depositary and the Custodian a
copy of the Company's Articles of Incorporation and Bylaws along with the
provisions of or governing the Shares and any other Deposited Securities
issued by the Company or any Affiliate of the Company, in connection with
the Shares, in each case along with a certified English translation
thereof, and promptly upon any amendment thereto or change therein, the
Company shall deliver to the
28
Depositary and the Custodian a copy of such amendment thereto or change
therein (along with a certified English translation thereof). The
Depositary may rely upon such copy for all purposes of this Deposit
Agreement.
The Depositary will make available a copy of any such notices, reports or
communications issued by the Company and delivered to the Depositary for
inspection by the Holders of the Receipts evidencing the American
Depositary Shares representing such Shares governed by such provisions at
the Depositary's Principal Office, at the office of the Custodian and at
any other designated transfer office.
5.7 ISSUANCE OF ADDITIONAL SHARES, ADSS ETC.
The Company agrees that in the event it or any of its Affiliates proposes
(i) an issuance, sale or distribution of additional Shares, (ii) an
offering of rights to subscribe for Shares or other Deposited Securities,
(iii) an issuance of securities convertible into or exchangeable for
Shares, (iv) an issuance of rights to subscribe for securities convertible
into or exchangeable for Shares, (v) an elective dividend of cash or
Shares, (vi) a redemption of Deposited Securities, (vii) a meeting of
holders of Deposited Securities, or solicitation of consents or proxies,
relating to any reclassification of securities, merger or consolidation or
transfer of assets or (viii) any reclassification, recapitalization,
reorganization, merger, consolidation or sale of assets which affects the
Deposited Securities, it will obtain U.S. legal advice and take all steps
necessary to ensure that the application of the proposed transaction to
Holders and Beneficial Owners does not violate the registration provisions
of the Securities Act, or any other applicable laws (including, without
limitation, the Investment Company Act of 1940, as amended, the Exchange
Act or the securities laws of the states of the United States). In support
of the foregoing, the Company will furnish to the Depositary, at it's own
expense, (a) a written opinion of U.S. counsel (reasonably satisfactory to
the Depositary) stating whether or not application of such transaction to
Holders and Beneficial Owners (1) requires a registration statement under
the Securities Act to be in effect or (2) is exempt from the registration
requirements of the Securities Act and (b) an opinion of a Philippine
counsel (reasonably satisfactory to the Depositary) stating that (1) making
the transaction available to Holders and Beneficial Owners does not violate
the laws or regulations of the Republic of the Philippines and (2) a
written opinion of a Philippine counsel (reasonably satisfactory to the
Depositary) stating that all requisite regulatory consents and approvals
have been obtained in the Republic of the Philippines. If the filing of a
registration statement is required, the Depositary shall not have any
obligation to proceed with the transaction unless it shall have received
evidence reasonably satisfactory to it that such registration statement has
been declared effective and that such distribution is in accordance with
all applicable laws or regulations. If, being advised by counsel, the
Company determines that a transaction is required to be registered under
the Securities Act, the Company will either (i) register such transaction
to the extent necessary, (ii) alter the terms of the transaction to avoid
the registration requirements of the Securities Act or (iii) direct the
Depositary to take specific measures, in each case as contemplated in this
Deposit Agreement, to prevent such transaction from violating the
registration requirements of the Securities Act.
The Company agrees with the Depositary that neither the Company nor any of
its Affiliates will at any time (i) deposit any Shares or other Deposited
Securities, either
29
upon original issuance or upon a sale of Shares or other Deposited
Securities previously issued and reacquired by the Company or by any such
Affiliate, or (ii) issue additional Shares, rights to subscribe for such
Shares, securities convertible into or exchangeable for Shares or rights to
subscribe for such securities, unless such transaction and the securities
issuable in such transaction are exempt from registration under the
Securities Act or have been registered under the Securities Act (and such
registration statement has been declared effective).
Notwithstanding anything else contained in this Deposit Agreement, nothing
in this Deposit Agreement shall be deemed to obligate the Company to file
any registration statement in respect of any proposed transaction.
5.8 INDEMNIFICATION
The Company agrees to indemnify the Depositary, any Custodian and each of
their respective directors, officers, employees, agents and Affiliates
against, and hold each of them harmless from, any losses, liabilities,
taxes, costs, claims, judgments, proceedings, actions, demands and any
charges or expenses of any kind whatsoever (including, but not limited to,
reasonable attorney's fees and expenses and, in each case, fees and
expenses of counsel, in each case, irrevocable value added tax and any
similar tax charged or otherwise imposed in respect thereof) (collectively
referred to as "LOSSES") which the Depositary or any agent thereof may
incur or which may be made against it as a result of or in connection with
its appointment or the exercise of its powers and duties under this
Agreement or that may arise (a) out of or in connection with any offer,
issuance, sale, resale, transfer, deposit or withdrawal of Receipts,
American Depositary Shares, the Shares, or other Deposited Securities, as
the case may be, (b) out of or in connection with any offering documents in
respect thereof or (c) out of or in connection with acts performed or
omitted, including, but not limited to, any delivery by the Depositary on
behalf of the Company of information regarding the Company in connection
with this Deposit Agreement, the Receipts, the American Depositary Shares,
the Shares, or any Deposited Securities, in any such case (i) by the
Depositary, the Custodian or any of their respective directors, officers,
employees, agents and Affiliates, except to the extent any such Losses
arises out of the gross negligence or bad faith of any of them, or (ii) by
the Company or any of its directors, officers, employees, agents and
Affiliates. Notwithstanding the above, in no event shall the Depositary or
any of its directors, officers, employees, agents and/or Affiliates be
liable for any indirect, special, punitive or consequential damages to the
Company, Holders, Beneficial Owners or any other person.
The Depositary agrees to indemnify the Company, its directors, officers,
employees, agents, and Affiliates against an hold each of them harmless
from any Losses which may arise out of acts performed or omitted to be
performed by the Depositary or its directors, offers, employees, agents and
Affiliates due to their gross negligence, wilful misconduct or bad faith.
Any person seeking indemnification hereunder (an "INDEMNIFIED PERSON")
shall notify the person from whom it is seeking indemnification (the
"INDEMNIFYING PERSON") of the commencement of any indemnifiable action or
claim promptly after such Indemnified Person becomes aware of such
commencement (provided that the failure to make such notification shall not
affect such Indemnified Person's rights to indemnification except to the
extent the Indemnifying Person is materially prejudiced
30
by such failure) and shall consult in good faith with the Indemnifying
Person as to the conduct of the defense of such action or claim that may
give rise to an indemnity hereunder, which defense shall be reasonable
under the circumstances. No Indemnified Person shall compromise or settle
any action or claim that may give rise to an indemnity hereunder without
the consent of the Indemnifying Person, which consent shall not be
unreasonably withheld.
The obligations set forth in this Section shall survive the termination of
this Deposit Agreement and the succession or substitution of any party
hereto.
5.9 FEES AND CHARGES OF DEPOSITARY
The Company, the Holders, the Beneficial Owners, and persons depositing
Shares or surrendering ADSs for cancellation and withdrawal of Deposited
Securities shall be required to pay to the Depositary the Depositary's fees
and related charges identified as payable by them respectively as provided
for under Condition 9; 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. All
fees and charges so payable may, at any time and from time to time, be
changed by agreement between the Depositary and the Company, but, in the
case of fees and charges payable by Holders and Beneficial Owners, only in
the manner contemplated in Section 6.1. The Depositary shall provide,
without charge, a copy of its latest fee schedule to anyone upon request.
The Depositary and the Company may reach separate agreement in relation to
the payment of any additional remuneration to the Depositary in respect of
any exceptional duties which the Depositary finds necessary or desirable
and agreed by both parties in the performance of its obligations hereunder
and in respect of the actual costs and expenses of the Depositary in
respect of any notices required to be given to the Holders in accordance
with Condition 20.
In connection with any payment by the Company to the Depositary:
(i) all fees, taxes, duties, charges, costs and expenses which are payable
by the Company shall be paid or be procured to be paid by the Company
(and any such amounts which are paid by the Depositary shall be
reimbursed to the Depositary by the Company upon demand therefor); and
(ii) such payment shall be subject to all necessary Philippine exchange
control and other consents and approvals having been obtained. The
Company undertakes to use its reasonable endeavours to obtain all
necessary approvals that are required to be obtained by it in this
connection.
(iii) the Depositary may request, in its sole but reasonable discretion
after reasonable consultation with the Company, an opinion of counsel
regarding laws of the United States, the laws of the Republic of the
Philippines, or the laws of any other relevant jurisdiction, to be
furnished at the expense of the Company, if at any time it deems it
necessary to seek such an opinion of counsel regarding the validity of
any action to be taken or instructed to be taken under this Agreement.
31
The Company agrees to promptly pay to the Depositary such other fees,
charges and expenses and to reimburse the Depositary for such out-of-pocket
expenses as the Depositary and the Company may agree to in writing from
time to time. Responsibility for payment of such charges may at any time
and from time to time be changed by agreement between the Company and the
Depositary. Unless otherwise agreed, the Depositary shall present its
statement for such expenses and fees or charges to the Company once every
three months.
All payments by the Company to the Depositary under this Clause 5.9 shall
be paid without set-off or counterclaim, and free and clear of and without
deduction or withholding for or on account of, any present or future taxes,
levies, imports, duties, fees, assessments or other charges of whatever
nature, imposed by the Republic of the Philippines or by any department,
agency or other political subdivision or taxing authority thereof or
therein, and all interest, penalties or similar liabilities with respect
thereto.
The right of the Depositary to receive payment of fees, charges and
expenses as provided above shall survive the termination of this Deposit
Agreement. As to any Depositary, upon the resignation or removal of such
Depositary as described in Section 5.4 hereof, such right shall extend for
those fees, charges and expenses incurred prior to the effectiveness of
such resignation or removal.
5.10 RESTRICTED SECURITIES OWNERS/OWNERSHIP RESTRICTIONS
From time to time or upon the reasonable request of the Depositary, the
Company shall provide to the Depositary a list setting forth, to the actual
knowledge of the Company, those persons or entities who beneficially own
Restricted Securities and the Company shall update that list on a regular
basis. The Depositary may rely on such a list or update but shall not be
liable for any action or omission made in reliance thereon. The Company
agrees to advise in writing each of the persons or entities who, to the
knowledge of the Company, holds Restricted Securities that such Restricted
Securities are ineligible for deposit hereunder and, to the extent
practicable, shall require each of such persons to represent in writing
that such person will not deposit Restricted Securities hereunder. The
Company shall, in accordance with Condition 24, inform Owners and
Beneficial Owners and the Depositary of any other limitations on ownership
of Shares that the Owners and Beneficial Owners may be subject to by reason
of the number of American Depositary Shares held under the Articles of
Incorporation and Bylaws of the Company or applicable Philippine law, as
such restrictions may be in force from time to time.
6. AMENDMENT AND TERMINATION
6.1 AMENDMENT/SUPPLEMENT
Subject to the terms and conditions of this Section 6.1 and applicable law,
the Receipts outstanding at any time, the provisions of this Deposit
Agreement and the form of Receipt attached hereto and to be issued under
the terms hereof 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 and not materially
prejudicial to the Holders without the consent of the Holders or Beneficial
Owners. Any amendment or supplement which
32
shall impose or increase any fees or charges (other than charges 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 American
Depositary Shares to be registered on Form F-6 under the Securities Act or
(b) the American Depositary Shares or the 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
materially 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
American Depositary Share or Shares, to consent and agree to such amendment
or supplement and to be bound by the Deposit Agreement as amended and
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, rules or
regulations.
6.2 TERMINATION
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 90 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. If 90 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 30 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
33
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). At any time after
the expiration of six months from the date of termination of this Deposit
Agreement, the Depositary may sell the Deposited Securities then held
hereunder and may thereafter hold uninvested the net proceeds of any such
sale, together with any other cash then held by it hereunder, 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).
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.
7. MISCELLANEOUS
7.1 COUNTERPARTS
This Deposit Agreement may be executed in any number of counterparts, each
of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same agreement. Copies of this Deposit
Agreement shall be maintained with the Depositary and shall be open to
inspection by any Holder during business hours.
7.2 NO THIRD-PARTY BENEFICIARIES
This Deposit Agreement is for the exclusive benefit of the parties hereto
(and their successors) and shall not be deemed to give any legal or
equitable right, remedy or claim whatsoever to any other person, except to
the extent specifically set forth in this Deposit Agreement. Nothing in
this Deposit Agreement shall be deemed to give rise to a partnership or
joint venture among the parties hereto nor establish a fiduciary or similar
relationship among the parties. The parties hereto acknowledge and agree
that (i) the Depositary and its Affiliates may at any time have multiple
banking relationships with the Company and its Affiliates, (ii) the
Depositary and its Affiliates may be engaged at any time in transactions in
which parties adverse to the Company
34
or the Holders or Beneficial Owners may have interests and (iii) nothing
contained in this Agreement shall (a) preclude the Depositary or any of its
Affiliates from engaging in such transactions or establishing or
maintaining such relationships, or (b) obligate the Depositary or any of
its Affiliates to disclose such transactions or relationships or to account
for any profit made or payment received in such transactions or
relationships.
7.3 SEVERABILITY
In case any one or more of the provisions contained in this Deposit
Agreement or in the Receipts should be or become invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein or therein shall in no way be
affected, prejudiced or disturbed thereby.
7.4 HOLDERS AND BENEFICIAL OWNERS AS PARTIES; BINDING EFFECT
The Holders and Beneficial Owners from time to time of American Depositary
Shares shall be parties to the Deposit Agreement and shall be bound by all
of the terms and conditions hereof and of any Receipt by acceptance hereof
or any beneficial interest therein.
7.5 NOTICES
Any and all notices to be given to the Company shall be deemed to have been
duly given if personally delivered or sent by mail, air courier or cable,
telex, facsimile transmission or electronic transmission, confirmed by
letter, addressed to eTelecare Global Solutions, Inc., 0000 Xxxx Xxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Facsimile: (000) 000-0000,
Attention: Xxxx Xxxx, or to any other address which the Company may specify
in writing to the Depositary.
Any and all notices to be given to the Depositary shall be deemed to have
been duly given if personally delivered or sent by mail, air courier or
cable, telex, facsimile transmission or by electronic transmission (if
agreed by the Company and the Depositary), at the Company's expense, unless
otherwise agreed in writing between the Company and the Depositary,
confirmed by letter, addressed to Deutsche Bank Trust Company Americas, 00
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, XXX Attention: ADR Department,
telephone: (000) 000 000 0000, facsimile: (000) 000 000 0000 or to any
other address which the Depositary may specify in writing to the Company.
Any and all notices to be given to any Holder shall be deemed to have been
duly given if personally delivered or sent by mail or cable, telex,
facsimile transmission or by electronic transmission (if agreed by the
Company and the Depositary), at the Company's expense, unless otherwise
agreed in writing between the Company and the Depositary, addressed to such
Holder at the address of such Holder as it appears on the transfer books
for Receipts of the Depositary, or, if such Holder shall have filed with
the Depositary a written request that notices intended for such Holder be
mailed to some other address, at the address specified in such request.
Notice to Holders shall be deemed to be notice to Beneficial Owners for all
purposes of this Deposit Agreement.
35
Delivery of a notice sent by mail, air courier or cable, telex, facsimile
or electronic transmission shall be deemed to be effective at the time when
a duly addressed letter containing the same (or a confirmation thereof in
the case of a cable, telex, facsimile or electronic transmission) is
deposited, postage prepaid, in a post-office letter box or delivered to an
air courier service. The Depositary or the Company may, however, act upon
any cable, telex, facsimile or electronic transmission received by it from
the other or from any Holder, notwithstanding that such cable, telex,
facsimile or electronic transmission shall not subsequently be confirmed by
letter as aforesaid, as the case may be.
7.6 GOVERNING LAW AND JURISDICTION
This Deposit Agreement and the Receipts shall be interpreted in accordance
with, and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, the laws of the State of New York without
reference to the principles of choice of law thereof. Except as set forth
in the following paragraph of this Section 7.6, the Company and the
Depositary agree that the federal or state courts in the City of New York
shall have jurisdiction to hear and determine any suit, action or
proceeding and to settle any dispute between them that may arise out of or
in connection with this Deposit Agreement and, for such purposes, each
irrevocably submits to the non-exclusive jurisdiction of such courts. The
Company hereby irrevocably designates, appoints and empowers CT Corporation
System (the "AGENT") now at 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as
its authorized agent to receive and accept for and on its behalf, and on
behalf of its properties, assets and revenues, service by mail of any and
all legal process, summons, notices and documents that may be served in any
suit, action or proceeding brought against the Company in any federal or
state court as described in the preceding sentence or in the next paragraph
of this Section 7.6. If for any reason the Agent shall cease to be
available to act as such, the Company agrees to designate a new agent in
the City of New York on the terms and for the purposes of this Section 7.6
reasonably satisfactory to the Depositary. The Company further hereby
irrevocably consents and agrees to the service of any and all legal
process, summons, notices and documents in any suit, action or proceeding
against the Company, by service by mail of a copy thereof upon the Agent
(whether or not the appointment of such Agent shall for any reason prove to
be ineffective or such Agent shall fail to accept or acknowledge such
service), with a copy mailed to the Company by registered or certified air
mail, postage prepaid, to its address provided in Section 7.5 hereof. The
Company agrees that the failure of the Agent to give any notice of such
service to it shall not impair or affect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Notwithstanding the foregoing, the Depositary and the Company
unconditionally agree that in the event that a Holder or Beneficial Owner
brings a suit, action or proceeding against (a) the Company, (b) the
Depositary in its capacity as Depositary under this Deposit Agreement or
(c) against both the Company and the Depositary, in any state or federal
court of the United States, and the Depositary or the Company have any
claim, for indemnification or otherwise, against each other arising out of
the subject matter of such suit, action or proceeding, then the Company and
the Depositary may pursue such claim against each other in the state or
federal court in the United States in which such suit, action, or
proceeding is pending, and for such
36
purposes, the Company and the Depositary irrevocably submit to the
non-exclusive jurisdiction of such courts. The Company agrees that service
of process upon the Agent in the manner set forth in the preceding
paragraph shall be effective service upon it for any suit, action or
proceeding brought against it as described in this paragraph.
The Company irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection that it may now or hereafter have to the
laying of venue of any actions, suits or proceedings brought in any court
as provided in this Section 7.6, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in an inconvenient forum.
The Company and the Depositary agree that, notwithstanding the foregoing,
with regard to any claim or dispute or difference of whatever nature
between the parties hereto arising directly or indirectly from the
relationship created by this Deposit Agreement, the Depositary, in its sole
discretion, shall be entitled to refer such dispute or difference for final
settlement by arbitration ("ARBITRATION") in accordance with the applicable
rules of the American Arbitration Association (the "RULES") then in force,
by a sole arbitrator appointed in accordance with the Rules. The seat and
place of any reference to Arbitration shall be New York, New York State.
The procedural law of any Arbitration shall be New York law and the
language to be used in the Arbitration shall be English. The fees of the
arbitrator and other costs incurred by the parties in connection with such
Arbitration shall be paid by the party that is unsuccessful in such
Arbitration.
The provisions of this Section 7.6 shall survive any termination of this
Deposit Agreement, in whole or in part.
7.7 ASSIGNMENT
Subject to the provisions of Section 5.4 hereof, this Deposit Agreement may
not be assigned by either the Company or the Depositary.
7.8 AGENTS
The Depositary shall be entitled, in its sole but reasonable discretion, to
appoint one or more agents (the "AGENTS") of which it shall have control
for the purpose, inter alia, of making distributions to the Holders or
otherwise carrying out its obligations under this Agreement.
7.9 EXCLUSIVITY
The Company agrees not to appoint any other depositary for the issuance or
administration of depositary receipts evidencing any class of stock of the
Company so long as Deutsche Bank Trust Company Americas is acting as
Depositary hereunder.
7.10 COMPLIANCE WITH U.S. SECURITIES LAWS
Notwithstanding anything in this 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 Instruction
I.A.(1) of the General
37
Instructions to Form F-6 Registration Statement, as amended from time to
time, under the Securities Act.
7.11 TITLES
All references in this Deposit Agreement to exhibits, articles, sections,
subsections, and other subdivisions refer to the exhibits, articles,
sections, subsections and other subdivisions of this Deposit Agreement
unless expressly provided otherwise. The words "this Deposit Agreement",
"herein", "hereof", "hereby", "hereunder", and words of similar import
refer to the Deposit Agreement as a whole as in effect between the Company,
the Depositary and the Holders and Beneficial Owners of ADSs and not to any
particular subdivision unless expressly so limited. Pronouns in masculine,
feminine and neuter gender shall be construed to include any other gender,
and words in the singular form shall be construed to include the plural and
vice versa unless the context otherwise requires. Titles to sections of
this Deposit Agreement are included for convenience only and shall be
disregarded in construing the language contained in this Deposit Agreement.
38
IN WITNESS WHEREOF, ETELECARE GLOBAL SOLUTIONS, INC. and DEUTSCHE BANK TRUST
COMPANY AMERICAS have duly executed this Deposit Agreement as of the day and
year first above set forth and all Holders and Beneficial Owners shall become
parties hereto upon acceptance by them of American Depositary Shares evidenced
by Receipts issued in accordance with the terms hereof.
ETELECARE GLOBAL SOLUTIONS, INC.
By:
---------------------------------
Name:
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Title:
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DEUTSCHE BANK TRUST COMPANY AMERICAS
By:
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39
EXHIBIT A
[FORM OF FACE OF RECEIPT]
CUSIP Number _________
American Depositary Shares
(Each American Depositary Share representing [_____]
[of] Fully Paid Ordinary Shares)
AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
DEPOSITED ORDINARY SHARES
of
ETELECARE GLOBAL SOLUTIONS, INC.
(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, each of par value of one peso 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 [__] Share[s] 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.
(1) THE DEPOSIT AGREEMENT
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 [______________,
2006] (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
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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).
(2) SURRENDER OF RECEIPTS AND WITHDRAWAL OF DEPOSITED SECURITIES
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
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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
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(3) TRANSFERS, SPLIT-UPS AND COMBINATIONS OF RECEIPTS
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.
(4) PRE-CONDITIONS TO REGISTRATION, TRANSFER, ETC.
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.
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
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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.
(5) COMPLIANCE WITH INFORMATION REQUESTS
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.
(6) LIABILITY OF HOLDER FOR TAXES, DUTIES AND OTHER CHARGES
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.
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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.
(7) REPRESENTATIONS AND WARRANTIES OF DEPOSITORS
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.
(8) FILING PROOFS, CERTIFICATES AND OTHER INFORMATION
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.
(9) 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:
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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;
(ii) 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;
(iii) 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;
(iv) 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;
(v) for the operation and maintenance costs in administering the ADSs an
annual fee of U.S. $2.00 per 100 ADS; and
(vi) 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.
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:
(i) taxes (including applicable interest and penalties) and other
governmental charges;
(ii) 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;
(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;
(iv) the expenses and charges incurred by the Depositary in the conversion
of foreign currency;
A-7
(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;
(vi) 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;
(vii) 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 Securites
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.
(10) 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.
(11) 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.
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(12) AVAILABLE INFORMATION; REPORTS; INSPECTION OF TRANSFER BOOKS
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
COMPANY AMERICAS, as Depositary
By:
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Vice President
The address of the Principal Office of the Depositary is 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
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EXHIBIT B
[FORM OF REVERSE OF RECEIPT]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
(13) 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.
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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.
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
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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.
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
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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.
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(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.
(16) 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
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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.
(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
B-6
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.
(18) STANDARD OF CARE
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.
(19) RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR
DEPOSITARY
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
B-7
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.
(20) AMENDMENT/SUPPLEMENT
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
B-8
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.
(21) TERMINATION
The Depositary shall, at any time at the written direction of the Company,
terminate the Deposit Agreement by mailing notice of such termination to
the Holders of all Receipts then outstanding at least 90 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 the 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. If 90 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 in 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 30 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 such 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 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). At any time after the expiration of
one year from the date of termination of the Deposit Agreement, the
Depositary may sell the Deposited Securities then held hereunder and may
thereafter hold uninvested the net proceeds of any such sale, together with
any other cash then held by it hereunder, in an unsegregated account,
without liability for interest for the pro rata benefit of the
B-9
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). Upon the termination of the Deposit
Agreement, the Company shall be discharged from all obligations under the
Deposit Agreement except as set forth in the Deposit Agreement.
(22) COMPLIANCE WITH U.S. SECURITIES LAWS; REGULATORY COMPLIANCE
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.
(23) CERTAIN RIGHTS OF THE DEPOSITARY; LIMITATIONS
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
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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).
(24) OWNERSHIP RESTRICTIONS
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.
B-11
(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.
Dated:
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Name:
-------------------------------
By:
---------------------------------
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.
SIGNATURE GUARANTEED
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B-12
