Exhibit (a)(i) PROMOTORA DE INFORMACIONES, S.A. AND CITIBANK, N.A., As Depositary, AND ALL HOLDERS AND BENEFICIAL OWNERS OF AMERICAN DEPOSITARY SHARES OUTSTANDING UNDER THE TERMS OF THE CLASS A DEPOSIT AGREEMENT, DATED AS OF DECEMBER 1, 2010...
Exhibit (a)(i)
PROMOTORA DE INFORMACIONES, S.A.
AND
CITIBANK, N.A.,
As Depositary,
AND
ALL HOLDERS AND BENEFICIAL OWNERS OF
AMERICAN DEPOSITARY SHARES
OUTSTANDING UNDER THE TERMS OF THE
CLASS A DEPOSIT AGREEMENT, DATED AS OF DECEMBER 1, 2010
__________________________
__________________________
Amendment No. 2
to
__________________________
Dated as of May 21, 2015
Table of Contents
Page
ARTICLE I DEFINITIONS
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2
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SECTION 1.01
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Definitions
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2
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SECTION 1.02
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Effective Date
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2
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ARTICLE II AMENDMENTS TO CLASS A DEPOSIT AGREEMENT
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2
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SECTION 2.01
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Deposit Agreement
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2
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SECTION 2.02
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Amendments Binding on all Holders and Beneficial Owners
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3
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SECTION 2.03
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Change of Ratio
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3
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SECTION 2.04
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Available Information
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4
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ARTICLE III AMENDMENTS TO THE FORM OF ADR
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4
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SECTION 3.01
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ADR Amendment
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4
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SECTION 3.02
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Change of Ratio
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5
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SECTION 3.03
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Available Information
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5
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ARTICLE IV REPRESENTATIONS AND WARRANTIES
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5
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SECTION 4.01
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Representations and Warranties
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5
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ARTICLE V MISCELLANEOUS
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6
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SECTION 5.01
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New ADRs
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6
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SECTION 5.02
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Notice of Amendment to Holders of ADSs
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7
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SECTION 5.03
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Indemnification
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7
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EXHIBIT A
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FORM OF ADR
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A-1
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EXHIBIT B
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NOTICE TO HOLDERS
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B-2
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AMENDMENT NO. 2 TO CLASS A DEPOSIT AGREEMENT, dated as of May 21, 2015 (the “Amendment”), by and among Promotora de Informaciones, S.A., a company organized and existing under the laws of The Kingdom of Spain (the “Company”), Citibank, N.A., a national banking association organized under the laws of the United States of America (the “Depositary”), and all Holders and Beneficial Owners from time to time of American Depositary Shares outstanding under the Class A Deposit Agreement, dated as of December 1, 2010, as amended by Amendment No. 1 to Class A Deposit Agreement, dated as of September 22, 2014.
WITNESSETH THAT:
WHEREAS, the Company and the Depositary entered into that certain Class A Deposit Agreement, dated as of December 1, 2010, as amended by Amendment No. 1 to Class A Deposit Agreement, dated as of September 22, 2014 (as so amended, the “Class A Deposit Agreement”), for the creation of ADSs (as defined in the Class A Deposit Agreement) representing the Shares (as defined in the Class A Deposit Agreement) deposited thereunder and for the execution and delivery of American Depositary Receipts (“ADRs”) in respect of the American Depositary Shares; and
ARTICLE I
ARTICLE II
2
“Section 1.4 “American Depositary Share(s)” and “ADS(s)” shall mean the rights and interests in the Deposited Securities granted to the Holders and Beneficial Owners pursuant to the terms and conditions of the Deposit Agreement and, if issued as Certificated ADS(s), the ADR(s) issued to evidence such ADSs. ADS(s) may be issued under the terms of the Deposit Agreement in the form of (a) Certificated ADS(s), in which case the ADS(s) are evidenced by ADR(s), or (b) Uncertificated ADS(s), in which case the ADS(s) are not evidenced by ADR(s) but are reflected on the direct registration system maintained by the Depositary for such purposes under the terms of Section 2.13. Unless otherwise specified in the Deposit Agreement or in any applicable ADR, or unless the context otherwise requires, any reference to ADS(s) shall include Certificated ADS(s) and Uncertificated ADS(s), individually or collectively, as the context may require. Each ADS shall represent the right to receive, subject to the terms and conditions of the Deposit Agreement and the applicable ADR (if issued as a Certificated ADS), one (1) Share 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 4.11 with respect to which additional ADSs are not issued, and thereafter each ADS shall represent the right to receive, subject to the terms and conditions of the Deposit Agreement and the applicable ADR (if issued as a Certificated ADS), the Deposited Securities determined in accordance with the terms of such Sections.”
3
“The Company publishes the information contemplated in Rule 12g3-2(b)(2)(i) under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), on its internet website or through an electronic information delivery system generally available to the public in the Company’s primary trading market. As of the date hereof the Company’s internet website is xxx.xxxxx.xxx. The information so published by the Company may not be in English, except that the Company is required, in order to maintain its exemption from the Exchange Act reporting obligations pursuant to Rule 12g3-2(b), to translate such information into English to the extent contemplated in the instructions to Rule 12g3-2(b). The information so published by the Company cannot be retrieved from the Commission’s internet website, and cannot be inspected or copied at the public reference facilities maintained by the Commission at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.”
ARTICLE III
“This American Depositary Receipt is one of an issue of American Depositary Receipts (“ADRs”), all issued and to be issued upon the terms and conditions set forth in the Class A Deposit Agreement, dated as of December 1, 2010, as amended by Amendment No.1 to Class A Deposit Agreement, dated as of September 22, 2014 and by Amendment No. 2 to Class A Deposit Agreement, dated as of May 21, 2015 (as so amended and as further amended and supplemented from time to time, the “Class A Deposit Agreement”), by and among the Company, the Depositary and all Holders and Beneficial Owners from time to time of ADSs issued thereunder.”
4
“The Company publishes the information contemplated in Rule 12g3-2(b)(2)(i) under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), on its internet website or through an electronic information delivery system generally available to the public in the Company’s primary trading market. As of the date hereof the Company’s internet website is xxx.xxxxx.xxx. The information so published by the Company may not be in English, except that the Company is required, in order to maintain its exemption from the Exchange Act reporting obligations pursuant to Rule 12g3-2(b), to translate such information into English to the extent contemplated in the instructions to Rule 12g3-2(b). The information so published by the Company cannot be retrieved from the Commission’s internet website, and cannot be inspected or copied at the public reference facilities maintained by the Commission at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.”
ARTICLE IV
5
(a) This Amendment, when executed and delivered by the Company, and the Class A Deposit Agreement and all other documentation executed and delivered by the Company in connection therewith, will be and have been, respectively, duly and validly authorized, executed and delivered by the Company, and constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, subject to bankruptcy, insolvency, fraudulent transfer, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(b) In order to ensure the legality, validity, enforceability or admissibility into evidence of this Amendment or the Class A Deposit Agreement as amended hereby, and other document furnished hereunder or thereunder, neither of such agreements need to be filed or recorded with any court or other authority in The Kingdom of Spain, nor does any stamp or similar tax need be paid in The Kingdom of Spain on or in respect of such agreements; and
(c) All of the information provided to the Depositary by the Company in connection with this Amendment is true, accurate and correct.
ARTICLE V
6
The Company agrees to indemnify the Depositary, when acting under the terms of this Amendment and the transactions contemplated herein and any of their respective directors, officers, employees, agents and Affiliates against, and hold each of them harmless from, any direct loss, liability, tax, charge or expense of any kind whatsoever (including, but not limited to, the reasonable fees and expenses of counsel) that may arise under the terms of this Amendment and the transactions contemplated herein, except to the extent such loss, liability, tax, charge or expense is due to the negligence or bad faith of any of the Depositary or any of their respective directors, officers, employees, agents and Affiliates.
7
The obligations set forth in this Section shall survive the termination of this Amendment and the succession or substitution of any party hereto.
Any person seeking indemnification hereunder (an “indemnified person”) shall promptly 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 seek indemnification except to the extent the indemnifying person is materially prejudiced 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 in 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.
SECTION 5.05 Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be wholly performed in the State of New York.
8
9
PROMOTORA DE INFORMACIONES, S.A.
By: ____________________________
Name:
Title:
CITIBANK, N.A., as Depositary
By: ____________________________
Name:
Title:
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10
EXHIBIT A
[FORM OF ADR]
Number
_____________
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CUSIP NUMBER: |
American Depositary Shares (each American Depositary Share representing the right to receive one (1) Class A ordinary share)
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AMERICAN DEPOSITARY RECEIPT
FOR
AMERICAN DEPOSITARY SHARES
representing
CLASS A ORDINARY SHARES
of
Promotora de Informaciones, S.A.
(Incorporated under the laws of the Kingdom of Spain)
CITIBANK, N.A., a national banking association organized and existing under the laws of the United States of America (the “Depositary”), as depositary, hereby certifies that _____________is the owner of ______________ American Depositary Shares (hereinafter “ADS”) representing deposited Class A ordinary shares, including evidence of rights to receive such Class A ordinary shares (the “Shares”), of Promotora de Informaciones, S.A. a corporation incorporated under the laws of the Kingdom of Spain (the “Company”). As of the date of the Class A Deposit Agreement (as hereinafter defined), each ADS represents the right to receive one (1) Share deposited under the Class A Deposit Agreement with the Custodian, which at the date of execution of the Class A Deposit Agreement is Santander Investment S.A. (the “Custodian”). The ADS(s)-to-Share(s) ratio is subject to amendment as provided in Articles IV and VI of the Class A Deposit Agreement. The Depositary’s Principal Office is located at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-1
The statements made on the face and reverse of this ADR are summaries of certain provisions of the Class A Deposit Agreement and the Bylaws of the Company (as in effect on the date of the signing of the Class A Deposit Agreement) and are qualified by and subject to the detailed provisions of the Class A Deposit Agreement and the Bylaws, 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 Class A 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 ADSs into DTC. Each Beneficial Owner of ADSs 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 ADSs. The Depositary may issue Uncertificated ADSs, subject, however, to the terms and conditions of Section 2.13 of the Class A Deposit Agreement.
A-2
Upon satisfaction of each of the conditions specified above, the Depositary (i) shall cancel the ADSs Delivered to it (and, if applicable, the ADRs evidencing the ADSs so Delivered), (ii) shall direct the Registrar to record the cancellation of the ADSs so Delivered on the books maintained for such purpose, and (iii) shall direct the Custodian to Deliver, or cause the Delivery of, in each case, without unreasonable delay, the Deposited Securities represented by the ADSs so canceled together with any certificate or other document of title for the Deposited Securities, or evidence of the electronic transfer thereof (if available), as the case may be, to or upon the written order of the person(s) designated in the order delivered to the Depositary for such purpose, subject, however, in each case, to the terms and conditions of the Class A Deposit Agreement, of this ADR evidencing the ADS so cancelled, of the By-laws of the Company, of any applicable laws and of the rules of Iberclear, and to the terms and conditions of or governing the Deposited Securities, in each case as in effect at the time thereof.
The Depositary shall not accept for surrender ADSs representing less than one (1) Share. In the case of Delivery to it of ADSs representing a number other than a whole number of Shares, the Depositary shall cause 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) return to the person surrendering such ADSs the number of ADSs representing any remaining fractional Share, or (ii) sell or cause to be sold the fractional Share represented by the ADSs so 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 required by applicable law to be withheld) to the person surrendering the ADSs. Notwithstanding anything else to the contrary contained in this ADR or the Class A Deposit Agreement, the Depositary may make delivery at the Principal Office of the Depositary of (i) any cash dividends or cash distributions, or (ii) any proceeds from the sale of any distributions of shares or rights, which are at the time held by the Depositary in respect of the Deposited Securities represented by the ADSs surrendered for cancellation and withdrawal. At the request, risk and expense of any Holder so surrendering ADSs represented by this ADR, 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 by the Custodian in respect of the Deposited Securities represented by such ADSs to the Depositary for delivery at the Principal Office of the Depositary. Such direction shall be given by letter or, at the request, risk and expense of such Holder, by cable, telex or facsimile transmission.
(3) Transfer, Combination and Split-Up of ADRs. The Registrar shall as soon as reasonably practicable register the transfer of this ADR (and of the ADSs represented hereby) on the books maintained for such purpose and the Depositary shall as soon as reasonably practicable (x) cancel this ADR and execute new ADRs evidencing the same aggregate number of ADSs as those evidenced by this ADR cancelled by the Depositary, (y) cause the Registrar to countersign such new ADRs, and (z) Deliver such new ADRs to or upon the order of the person entitled thereto, if each of the following conditions has been satisfied: (i) the ADSs evidenced by this ADR have been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a transfer thereof, (ii) this surrendered ADR has been properly endorsed or is accompanied by proper instruments of transfer (including signature guarantees in accordance with standard securities industry practice), (iii) this surrendered ADR has been duly stamped (if required by the laws of the State of New York or of the United States), and (iv) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and governmental charges (as are set forth in Section 5.9 of, and Exhibit B to, the Class A Deposit Agreement) have been paid, subject, however, in each case, to the terms and conditions of this ADR, of the Class A Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
A-3
The Registrar shall as soon as reasonably practicable register the split-up or combination of this ADR (and of the ADSs represented hereby) on the books maintained for such purpose and the Depositary shall as soon as reasonably practicable (x) cancel this ADR and execute new ADRs for the number of ADSs requested, but in the aggregate not exceeding the number of ADSs evidenced by this ADR cancelled by the Depositary, (y) cause the Registrar to countersign such new ADRs, and (z) deliver such new ADRs to or upon the order of the Holder thereof, if each of the following conditions has been satisfied: (i) the ADSs evidenced by this ADR have been duly Delivered by the Holder (or by a duly authorized attorney of the Holder) to the Depositary at its Principal Office for the purpose of effecting a split-up or combination hereof, and (ii) all applicable fees and charges of, and expenses incurred by, the Depositary and all applicable taxes and government charges (as are set forth in Section 5.9 of, and Exhibit B to, the Class A Deposit Agreement) have been paid, subject, however, in each case, to the terms and conditions of this ADR, of the Class A Deposit Agreement and of applicable law, in each case as in effect at the time thereof.
The Depositary may appoint, upon consultation with the Company, one or more co-transfer agents for the purpose of effecting transfers, combinations and split-ups of this ADR 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 this ADR and will be entitled to protection and indemnity to the same extent as the Depositary. Such co-transfer agents may be removed and substitutes appointed by the Depositary, and the Depositary shall notify the Company of any such removal or substitution. Each co-transfer agent appointed under Section 2.6 of the Class A Deposit Agreement (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 the Class A Deposit Agreement.
A-4
The issuance of ADSs against deposits of Shares generally or against deposits of particular Shares may be suspended, or the deposit of particular Shares may be refused, or the registration of transfer of ADSs in particular instances may be refused, or the registration of transfers of ADSs generally may be suspended, during any period when the transfer books of the Company, the Depositary, a Registrar or the Share Registrar 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 or regulation, any government or governmental body or commission or any securities exchange on which the Shares or ADSs are listed, or under any provision of the Class A Deposit Agreement or this ADR, or under any provision of, or governing, the Deposited Securities, or because of a meeting of shareholders of the Company or for any other reason, subject, in all cases to paragraph (24) of this ADR and Section 7.8 of the Class A Deposit Agreement. Notwithstanding any provision of the Class A Deposit Agreement or this ADR to the contrary, Holders are entitled to surrender outstanding ADSs to withdraw the Deposited Securities associated therewith 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 ADSs or the withdrawal of the Deposited Securities, and (iv) other circumstances specifically contemplated by Instruction I.A.(l) of the General Instructions to Form F-6 (as such General Instructions may be amended from time to time).
A-5
Applicable laws and regulations may require holders and beneficial owners of Shares, including the Holders and Beneficial Owners of ADSs, to satisfy reporting requirements and obtain regulatory approvals in certain circumstances. Holders and Beneficial Owners of ADSs are solely responsible for determining and complying with such reporting requirements and obtaining such approvals. Each Holder and each Beneficial Owner of ADSs hereby agrees to make such determination, file such reports, and obtain such approvals to the extent and in the form required by applicable laws and regulations as in effect from time to time. Neither the Depositary, the Custodian, the Company or any of their respective agents or Affiliates shall be required to take any actions whatsoever on behalf of Holders or Beneficial Owners of ADSs to determine or satisfy such reporting requirements or obtain such regulatory approvals under applicable laws and regulations. In satisfying any required reporting obligations or obtaining any required regulatory approvals, unless otherwise permitted by applicable law or regulation, a Holder’s or Beneficial Owner’s holdings or a Group of Holders’ or Beneficial Owners’ holdings shall include both ADSs and Shares. Holders and Beneficial Owners of ADSs hereby acknowledge that the failure to satisfy any required reporting requirement and obtain any required regulatory approval may result in adverse consequences to such Holders and Beneficial Owners of ADSs.
A-6
A-7
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(i)
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Issuance Fee: to any person depositing Shares or to whom ADSs are issued upon the deposit of Shares (excluding issuances as a result of distributions described in paragraph (iv) below), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) so issued under the terms of the Class A Deposit Agreement;
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(ii)
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Cancellation Fee: to any person surrendering ADSs for cancellation and withdrawal of Deposited Securities or to any person to whom Deposited Securities are Delivered, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) surrendered;
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(iii)
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Cash Distribution Fee: to any Holder of ADSs, a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of cash dividends or other cash distributions (i.e., sale of rights and other entitlements);
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(iv)
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Stock Distribution /Rights Exercise Fee: to any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for (i) stock dividends or other free stock distributions or (ii) exercise of rights to purchase additional ADSs;
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(v)
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Other Distribution Fee: to any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held for the distribution of securities other than ADSs or rights to purchase additional ADSs (i.e., spin-off shares); and
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(vi)
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Depositary Services Fee: to any Holder of ADS(s), a fee not in excess of U.S. $5.00 per 100 ADSs (or fraction thereof) held on the applicable record date(s) established by the Depositary.
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Holders, Beneficial Owners, persons depositing Shares and persons surrendering ADSs for cancellation and for the purpose of withdrawing Deposited Securities shall be responsible for the following charges:
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(a)
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taxes (including applicable interest and penalties) and other governmental charges;
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A-8
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(b)
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such registration fees as may from time to time be in effect for the registration of Shares or other Deposited Securities on the share register and applicable to transfers of Shares or other Deposited Securities to or from the name of the Custodian, the Depositary or any nominees upon the making of deposits and withdrawals, respectively;
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(c)
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such cable, telex and facsimile transmission and Delivery expenses as are expressly provided in the Class A Deposit Agreement to be at the expense of the person depositing or withdrawing Shares or Holders and Beneficial Owners of ADSs;
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(d)
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the expenses and charges incurred by the Depositary in the conversion of foreign currency;
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(e)
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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; and
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(f)
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the fees and expenses incurred by the Depositary, the Custodian, or any nominee in connection with the Delivery or servicing of Deposited Securities.
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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 paragraph (22) of this ADR and as contemplated in the Class A Deposit Agreement. The Depositary will provide, without charge, a copy of its latest fee schedule to anyone upon request.
Depositary Fees payable upon (i) deposit of Shares against issuance of ADSs and (ii) surrender of ADSs for cancellation and withdrawal of Deposited Securities will be charged by the Depositary to the person to whom the ADSs so issued are Delivered (in the case of ADS issuances) and to the person who Delivers the ADSs for cancellation to the Depositary (in the case of ADS cancellations). In the case of ADSs issued by the Depositary into DTC or presented to the Depositary via DTC, the ADS issuance and cancellation fees will be payable to the Depositary by the DTC Participant(s) receiving the ADSs from the Depositary or the DTC Participant(s) surrendering the ADSs to the Depositary for cancellation, as the case may be, on behalf of the Beneficial Owner(s) and will be charged by the DTC Participant(s) to the account(s) of the applicable Beneficial Owner(s) in accordance with the procedures and practices of the DTC Participant(s) as in effect at the time. Depositary fees in respect of distributions and the Depositary services fee are payable to the Depositary by Holders as of the applicable ADS Record Date established by the Depositary. In the case of distributions of cash, the amount of the applicable Depositary fees is deducted by the Depositary from the funds being distributed. In the case of distributions other than cash and the Depositary service fee, the Depositary will invoice the applicable Holders as of the ADS Record Date established by the Depositary. For ADSs held through DTC, the Depositary fees for distributions other than cash and the Depositary service fee are charged by the Depositary to the DTC Participants in accordance with the procedures and practices prescribed by DTC from time to time and the DTC Participants in turn charge the amount of such fees to the Beneficial Owners for whom they hold ADSs.
A-9
The Depositary may reimburse the Company for certain expenses incurred by the Company in respect of the ADR program established pursuant to the Class A Deposit Agreement, by making available a portion of the Depositary fees charged in respect of the ADR program or otherwise, upon such terms and conditions as the Company and the Depositary agree from time to time. The Company shall pay to the Depositary such fees and charges and reimburse the Depositary for such out-of-pocket expenses as the Depositary and the Company may agree from time to time. Responsibility for payment of such charges and reimbursements may 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. The charges and expenses of the Custodian are for the sole account of the Depositary.
The right of the Depositary to receive payment of fees, charges and expenses as provided above shall survive the termination of the Class A Deposit Agreement. As to any Depositary, upon the resignation or removal of such Depositary as described in Section 5.4 of the Class A Deposit Agreement, such right shall extend for those fees, charges and expenses incurred prior to the effectiveness of such resignation or removal.
(11) Title to ADRs. It is a condition of this ADR, and every successive Holder of this ADR by accepting or holding the same consents and agrees, that title to this ADR (and to each ADS evidenced hereby) shall be transferable upon the same terms as a certificated security under the laws of the State of New York, provided that, in the case of Certificated ADSs, such ADR has been properly endorsed or is accompanied by proper instruments of transfer. Notwithstanding any notice to the contrary, the Depositary and the Company may deem and treat the Holder of this ADR (that is, the person in whose name this ADR is registered on the books of the Depositary) as the absolute owner thereof for all purposes. Neither the Depositary nor the Company shall have any obligation nor be subject to any liability under the Class A Deposit Agreement or this ADR to any holder of this ADR or any Beneficial Owner of ADSs unless, in the case of a holder of ADSs, such holder is the Holder of this ADR 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.
A-10
The Company publishes the information contemplated in Rule 12g3-2(b)(2)(i) under the United States Securities Exchange Act of 1934, as amended (the “Exchange Act”), on its internet website or through an electronic information delivery system generally available to the public in the Company’s primary trading market. As of the date hereof the Company’s internet website is xxx.xxxxx.xxx. The information so published by the Company may not be in English, except that the Company is required, in order to maintain its exemption from the Exchange Act reporting obligations pursuant to Rule 12g3-2(b), to translate such information into English to the extent contemplated in the instructions to Rule 12g3-2(b). The information so published by the Company cannot be retrieved from the Commission’s internet website, and cannot be inspected or copied at the public reference facilities maintained by the Commission at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
The Registrar shall keep books for the registration of ADSs which at all reasonable times shall be open for inspection by the Company and by the Holders of such ADSs, provided that such inspection shall not be, to the Registrar’s knowledge, for the purpose of communicating with Holders of such ADSs in the interest of a business or object other than the business of the Company or other than a matter related to the Class A Deposit Agreement or the ADSs.
The Registrar may close the transfer books with respect to the ADSs, 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 paragraph (24) of this ADR and Section 7.8 of the Class A Deposit Agreement.
Dated:
CITIBANK, N.A.
Transfer Agent and Registrar
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CITIBANK, N.A.
as Depositary
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By: _____________________________
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By: _____________________________
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Authorized Signatory
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Authorized Signatory
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The address of the Principal Office of the Depositary is 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, X.X.X.
A-11
[FORM OF REVERSE OF ADR]
SUMMARY OF CERTAIN ADDITIONAL PROVISIONS
OF THE DEPOSIT AGREEMENT
A-12
Whenever the Company intends to make a distribution that consists of a dividend in, or free distribution of, Shares, the Company shall to the extent practicable give notice thereof to the Depositary at least twenty (20) days (or such other period as may be reasonably agreed from time to time between the Company and the Depositary) prior to the proposed distribution, specifying, inter alia, the record date applicable to holders of Deposited Securities entitled to receive such distribution. Upon the receipt of such notice from the Company, the Depositary shall establish the ADS Record Date upon the terms described in Section 4.9 of the Class A Deposit Agreement. Upon receipt of confirmation from the Custodian of the receipt of the Shares so distributed by the Company, the Depositary shall either (i) subject to Section 5.9 of the Class A Deposit Agreement, distribute to the Holders of ADSs 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 the aggregate the number of Shares received as such dividend, or free distribution, subject to the other terms of the Class A Deposit Agreement (including, without limitation, (a) the applicable fees and charges of, and expenses incurred by, the Depositary and (b) taxes required by applicable law to be withheld), or (ii) if additional ADSs are not so distributed, take all actions necessary so that 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 integral number of 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 required by applicable law to be withheld). In lieu of Delivering fractional ADSs, the Depositary shall sell the number of Shares or ADSs, as the case may be, represented by the aggregate of such fractions and distribute the net proceeds upon the terms set forth in Section 4.1 of the Class A Deposit Agreement.
In the event that the Depositary determines that any distribution in property (including Shares) is subject to any tax or other governmental charges which the Depositary is obligated by applicable law to withhold, or, if the Company in the fulfillment of its obligations under Section 5.7 of the Class A Deposit Agreement, has 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 of ADSs (and no such registration statement has been declared effective), 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 (a) taxes and (b) fees and charges of, and the expenses incurred by, the Depositary) to Holders entitled thereto upon the terms of Section 4.1 of the Class A Deposit Agreement. The Depositary shall hold and/or distribute any unsold balance of such property in accordance with the provisions of the Class A Deposit Agreement. Notwithstanding anything contained herein or in the Class A Deposit Agreement to the contrary, in the event the Company fails to give the Depositary at least twenty (20) days (or such other period as agreed pursuant to Section 4.2 of the Class A Deposit Agreement) prior written notice of the proposed distribution as provided for above, the Depositary agrees to exercise all commercially reasonable efforts necessary to perform the actions contemplated in Section 4.2 of the Class A Deposit Agreement and the Company acknowledges that the Depositary shall have no liability for the Depositary's failure to perform the actions contemplated in Section 4.2 of the Class A Deposit Agreement, other than for its failure to exercise all commercially reasonable efforts, as provided for therein.
A-13
Whenever the Company intends to make a distribution payable at the election of the holders of Shares in cash or in additional Shares, the Company shall to the extent practicable give notice thereof to the Depositary at least sixty (60) days (or such other period as may be reasonably agreed from time to time between the Company and the Depositary) prior to the proposed distribution specifying, inter alia, the record date applicable to holders of Deposited Securities entitled to receive such elective distribution and whether or not it wishes such elective distribution to be made available to Holders of ADSs. Upon the timely receipt of a 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 of ADSs only if (i) the Company shall have requested that the elective distribution be made available to Holders, (ii) the Depositary shall have determined after consultation with the Company that such distribution is reasonably practicable and (iii) the Depositary shall have received reasonably satisfactory documentation within the terms of Section 5.7 of the Class A Deposit Agreement. If the above conditions are not satisfied, the Depositary shall establish an ADS Record Date on the terms described in Section 4.9 of the Class A Deposit Agreement and, to the extent permitted by law, distribute to the Holders, on the basis of the same determination as is made in Spain in respect of the Shares for which no election is made, either (X) cash upon the terms described in Section 4.1 of the Class A Deposit Agreement or (Y) additional ADSs representing such additional Shares upon the terms described in Section 4.2 of the Class A Deposit Agreement. If the above conditions are satisfied, the Depositary shall establish an ADS Record Date on the terms described in Section 4.9 of the Class A Deposit Agreement and establish procedures to enable Holders of ADSs to elect the receipt of the proposed distribution in cash or in additional ADSs. The Company shall assist the Depositary in establishing such procedures to the extent necessary. If a Holder elects to receive the proposed distribution (X) in cash, the distribution shall be made upon the terms described in Section 4.1 of the Class A Deposit Agreement, or (Y) in ADSs, the distribution shall be made upon the terms described in Section 4.2 of the Class A Deposit Agreement. Nothing herein or in the Class A Deposit Agreement shall obligate the Depositary to make available to Holders of ADSs a method to receive the elective distribution in Shares (rather than ADSs). There can be no assurance that Holders generally, or any Holder in particular, will be given the opportunity to receive elective distributions on the same terms and conditions as the holders of Shares. Notwithstanding anything contained herein or in the Class A Deposit Agreement to the contrary, in the event the Company fails to give the Depositary at least sixty (60) days (or such other period as agreed pursuant to Section 4.3 of the Class A Deposit Agreement) prior written notice of the proposed distribution as provided for above, the Depositary agrees to exercise all commercially reasonable efforts necessary to perform the actions contemplated in Section 4.3 of the Class A Deposit Agreement and the Company acknowledges that the Depositary shall have no liability for the Depositary's failure to perform the actions contemplated in Section 4.3 of the Class A Deposit Agreement, other than for its failure to exercise all commercially reasonable efforts, as provided for therein.
A-14
Whenever the Company intends to distribute to the holders of the Deposited Securities rights to subscribe for additional Shares, the Company shall to the extent practicable give notice thereof to the Depositary at least sixty (60) days (or such other period as may be reasonably agreed from time to time between the Company and the Depositary) prior to the proposed distribution specifying, inter alia, the record date applicable to holders of Deposited Securities entitled to receive such distribution and whether or not it wishes such rights to be made available to Holders of ADSs. Upon the 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 assist the Depositary in its determination, 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 requested that such rights be made available to Holders, (ii) the Depositary shall have received reasonably satisfactory documentation within the terms of Section 5.7 of the Class A Deposit Agreement, and (iii) the Depositary shall have determined that such distribution of rights is reasonably practicable. In the event any of the conditions set forth above are not satisfied or if the Company requests that the rights not be made available to Holders of ADSs, the Depositary shall proceed with the sale of the rights as contemplated in Section 4.4(b) of the Class A Deposit Agreement. In the event all conditions set forth above are satisfied, the Depositary shall establish an ADS Record Date (upon the terms described in Section 4.9 of the Class A Deposit Agreement) and establish procedures to (x) distribute rights to purchase additional ADSs (by means of warrants or otherwise), (y) to enable the Holders of ADSs to exercise such rights (upon payment of the subscription price and of the applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) applicable taxes in connection with the exercise of such rights), and (z) to Deliver ADSs upon the valid exercise of such rights. The Company shall assist the Depositary to the extent necessary in establishing such procedures. Nothing herein or in the Class A Deposit Agreement shall obligate the Depositary to make available to the Holders of ADSs a method to exercise rights to subscribe for Shares (rather than ADSs). Notwithstanding anything contained herein or in the Class A Deposit Agreement to the contrary, in the event the Company fails to give the Depositary at least sixty (60) days prior written notice of the proposed distribution as provided for above, the Depositary agrees to exercise all commercially reasonable efforts necessary to perform the actions contemplated in Section 4.4 of the Class A Deposit Agreement and the Company acknowledges that the Depositary shall have no liability for the Depositary's failure to perform the actions contemplated in Section 4.4 of the Class A Deposit Agreement, other than for its failure to exercise all commercially reasonable efforts, as provided for therein.
If (i) the Company does not timely request the Depositary to make the rights available to Holders of ADSs or requests that the rights not be made available to Holders of ADSs, (ii) the Depositary fails to receive reasonably satisfactory documentation within the terms of Section 5.7 of the Class A Deposit Agreement or determines, upon consultation with the Company, that it is not reasonably practicable to make the rights available to Holders of ADSs, 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, at such place and upon such terms (including public or private sale) as it may deem practicable. 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 required by applicable law to be deducted and withheld) upon the terms set forth in Section 4.1 of the Class A Deposit Agreement.
A-15
If the Depositary is unable to make any rights available to Holders of ADSs upon the terms described in Section 4.4(a) of the Class A Deposit Agreement or to arrange for the sale of the rights upon the terms described in Section 4.4(b) of the Class A Deposit Agreement, the Depositary shall allow such rights to lapse.
Neither the Company nor the Depositary shall 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, or (ii) any foreign exchange exposure or loss incurred in connection with such sale, or exercise. The Depositary shall not be responsible for 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 herein or in Section 4.4 of the Class A Deposit Agreement, 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 (or other applicable law) covering such offering is in effect or (ii) unless the Company furnishes 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 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 by applicable law 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 of ADSs representing such Deposited Securities 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 by applicable law 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 receive or 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.
Whenever the Company intends to distribute to the holders of Deposited Securities property, to the extent legally permissible, other than cash, Shares or rights to purchase additional Shares, the Company shall give timely notice thereof to the Depositary 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 consult with the Company, and the Company shall assist the Depositary, to determine whether such distribution to Holders is lawful and reasonably practicable. The Depositary shall not make such distribution unless (i) the Company shall have requested the Depositary to make such distribution to Holders, (ii) the Depositary shall have received satisfactory documentation within the terms of Section 5.7 of the Class A Deposit Agreement, and (iii) the Depositary shall have determined that such distribution is reasonably practicable.
A-16
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 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 them 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 required by applicable law to be 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 such taxes (including applicable interest and penalties) or other governmental charges applicable to the distribution.
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 of the Class A Deposit Agreement, or (iii) the Depositary determines that all or a portion of such distribution is not reasonably practicable, 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 practicable and shall (i) cause the proceeds of such sale, if any, to be converted into Dollars and (ii) distribute the proceeds of such conversion received by the Depositary (net of applicable (a) fees and charges of, and expenses incurred by, the Depositary and (b) taxes required by applicable law to withheld) to the Holders as of the ADS Record Date upon the terms of Section 4.1 of the Class A Deposit Agreement. If the Depositary is unable to sell such property, the Depositary may dispose of such property for the account of the Holders in any way it deems reasonably practicable under the circumstances.
Neither the Depositary nor the Company shall be responsible for (i) any failure to determine whether it is lawful or practicable to make the property described herein available to Holders in general or any Holder in particular, nor (ii) any foreign exchange exposure or loss incurred in connection with the sale or disposal of such property. The Depositary shall not be responsible for the content of any materials forwarded to the Holders on behalf of the Company in connection with the distribution or sale of such property.
A-17
(16) Fixing of ADS Record Date. Whenever the Depositary shall receive notice of the fixing of a record date by the Company for the determination of holders of Deposited Securities entitled to receive 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, or solicitation of consents or proxies 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, solicitation of any consent or any other matter, the Depositary shall fix the ADS Record Date for the determination of the Holders of ADSs who shall be entitled to receive such distribution, to give instructions for the exercise of voting rights at any such meeting, to give or withhold such consent, 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. The Depositary shall make reasonable efforts to establish the ADS Record Date as closely as possible to the applicable record date for the Deposited Securities (if any) set by the Company in Spain. Subject to applicable law and the terms and conditions of this ADR and Sections 4.1 through 4.8 of the Class A Deposit Agreement and to the other terms and conditions of the Class A Deposit Agreement, only the Holders of ADSs at the close of business in New York on such ADS Record Date shall be entitled to receive such distribution, to give such instructions, to receive such notice or solicitation, or otherwise take action.
A-18
Notwithstanding anything contained in the Class A Deposit Agreement or this ADR, the Depositary may, to the extent not prohibited by law or regulations, or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the Depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of Deposited Securities, distribute to the Holders of ADSs a notice that provides such Holders with, or otherwise publicizes to such Holders, instructions on how to retrieve such materials or receive such materials upon request (i.e., by reference to a website containing the materials for retrieval or a contact for requesting copies of the materials).
Voting instructions may be given only in respect of a number of ADSs representing an integral number of Deposited Securities. Upon the timely receipt from a Holder of ADSs as of the ADS Record Date of voting instructions in the manner specified by the Depositary, the Depositary shall endeavor, insofar as practicable and permitted under applicable law, the provisions of the Class A Deposit Agreement, the Bylaws of the Company and the provisions of the Deposited Securities, to vote, or cause the Custodian to vote, the Deposited Securities (in person or by proxy) represented by such Holder’s ADSs 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 Deposited Securities represented by ADSs, except pursuant to and in accordance with the voting instructions timely received from Holders or as otherwise contemplated herein. If the Depositary timely receives voting instructions from a Holder which fail to specify the manner in which the Depositary is to vote the Deposited Securities represented by such Holder’s ADSs, the Depositary will deem such Holder to have instructed the Depositary to vote in accordance with the proxy voting provisions set forth in the Company's Regulations of the General Shareholder Meeting. Deposited Securities represented by ADSs for which no timely voting instructions are received by the Depositary from the Holder shall not be voted. Notwithstanding anything else contained in the Class A Deposit Agreement or this ADR, the Depositary shall not have any obligation to take any action with respect to any meeting, or solicitation of consents or proxies, of holders of Deposited Securities if the taking of such action would violate U.S. laws. The Company agrees to take any and all actions reasonably necessary to enable Holders and Beneficial Owners to exercise the voting rights accruing to the Deposited Securities and to Deliver to the Depositary an opinion of U.S. counsel addressing any actions requested to be taken if so reasonably requested by the Depositary. There can be no assurance that Holders generally or any Holder in particular will receive the notice described above with sufficient time to enable the Holder to return voting instructions to the Depositary in a timely manner.
A-19
A-20
None of the Depositary, the Company, their respective Affiliates or their agents shall 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 Class A Deposit Agreement. Neither the Depositary nor the Company shall incur any liability for any failure to determine that any distribution or action may be lawful or reasonably practicable 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 Class A Deposit Agreement, for the failure or timeliness of any notice from the Company, or for any action of or failure to act by, or any information provided or not provided by, DTC or any DTC Participant. The Depositary shall not incur any liability, 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 or for the failure or timeliness of any notice from the Company.
A-21
(21) Resignation and Removal of the Depositary; Appointment of Successor Depositary. The Depositary may at any time resign as Depositary under the Class A Deposit Agreement by written notice of resignation delivered to the Company, such resignation to be effective on the earlier of (i) the 60th day after delivery thereof to the Company (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2 of the Class A Deposit Agreement), or (ii) the appointment by the Company of a successor depositary and its acceptance of such appointment as provided in the Class A Deposit Agreement. 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 60th day after delivery thereof to the Depositary (whereupon the Depositary shall be entitled to take the actions contemplated in Section 6.2 of the Class A Deposit Agreement), or (ii) upon the appointment by the Company of a successor depositary and its acceptance of such appointment as provided in the Class A Deposit Agreement. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall use its best efforts to appoint a successor depositary, which shall be a bank or trust company having an office in the Borough of Manhattan, the City of New York. Every successor depositary shall 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 (other than as contemplated in Sections 5.8 and 5.9 of the Class A Deposit Agreement). 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 Sections 5.8 and 5.9 of the Class A 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 ADSs and such other information relating to ADSs and Holders thereof as the successor may reasonably request. Any such successor depositary shall promptly provide 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.
A-22
A-23
A-24
(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 ADS and all rights thereunder, hereby irrevocably constituting and appointing ________________________ attorney-in-fact to transfer said ADS on the books of the Depositary with full power of substitution in the premises.
Dated: | Name: ________________________________ |
By:
Title:
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 ADR.
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__________________________
SIGNATURE GUARANTEED
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All endorsements or assignments of ADRs must be guaranteed by a member of a Medallion Signature Program approved by the Securities Transfer Association, Inc.
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A-25
EXHIBIT B
To Holders of American Depositary Shares (“ADSs”)
of Promotora de Informaciones, S.A.
Company:
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Promotora de Informaciones, S.A., a company organized under the laws of the Kingdom of Spain.
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Depositary:
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Citibank, N.A.
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Custodian:
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Santander Investment S.A.
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Existing ADS - to - Share Ratio:
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Each ADS represents four (4) Class A Ordinary Shares of the Company (the “Shares”).
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Deposit Agreement:
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Class A Deposit Agreement, dated as of December 1, 2010, by and among the Company, the Depositary and all Holders and Beneficial Owners of ADSs, as supplemented by Letter Agreement, dated as of December 1, 2010, as amended by Amendment No. 1 to the Class A Deposit Agreement, dated as of September 22, 2014, and by Amendment No. 2 to Class A Deposit Agreement, to be dated as of May 22, 2015 (the “Amendment No. 2 to Deposit Agreement”).
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Effective Date:
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May 22, 2015.
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Please be advised that the Company has informed the Depositary of a reverse split of the Shares - 1 Share for every 30 Shares held as of May 22, 2015 (the “Reverse Share Split”). In addition, the Company and the Depositary have agreed to change the existing ADS - to - Share ratio (the “ADS Ratio Change”) as follows:
Existing Ratio (before the Reverse Share Split): One (1) ADS to four (4) Shares
New Ratio (after the Reverse Share Split): One (1) ADS to one (1) Share
Following the Effective Date for the Reverse Share Split and the ADS Ratio Change, each ADS will represent one (1) Share and the holders of existing ADSs will receive 0.13333333 new ADSs for each outstanding ADS surrendered to the Depositary, which is the equivalent of one (1) new ADS for every 7.5 existing ADSs surrendered.
As a result of the Reverse Share Split, the CUSIP number for the ADSs will change as follows:
Existing ADS CUSIP: 00000X000
New ADS CUSIP: 00000X000
B-1
Each existing ADS will, on the Effective Date for the Reverse Share Split and the ADS Ratio Change, be automatically surrendered, cancelled and mandatorily exchanged for 0.13333333 new ADS, which is the equivalent of one (1) new ADS for every 7.5 existing ADSs automatically surrendered. You do not need to take any action for the existing ADS surrender, cancellation and mandatory exchange. The new ADSs will be issued as “uncertificated ADSs” via the Direct Registration System (the “DRS”), and will be credited to an account in the name of the existing ADS holders on the books of the Depositary. The DRS statements reflecting the surrender, cancellation and mandatory exchange of existing ADSs for new ADSs will be mailed to ADS holders promptly after the Effective Date.
No fractional new ADSs will be issued. Cash in lieu of fractional entitlements to new ADSs will be paid at a rate based upon the net proceeds received by the Depositary for the sale of the aggregate of the fractional new ADS entitlements.
The Depositary will file with the U.S. Securities and Exchange Commission (the “SEC”) a form of the Amendment No. 2 to Deposit Agreement and of the form of ADR that reflects the new ADS-to-Share ratio under cover of Post-Effective Amendment No. 2 to Registration Statement on Form F-6 (Reg. No. 333-169920). A copy of such filing will be available from the SEC’s website at xxx.xxx.xxx under Registration Number 333-169920.
If you have any questions about the above amendment and exchange, please call Citibank ADR Shareholder Services at 0-000-000-0000. Copies of the Deposit Agreement are available at the principal offices of the Depositary at 000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 and can be retrieved from the SEC’s website at xxx.xxx.xxx under Registration Number 333-169920.
Citibank, N.A. as Depositary
Date: May 13, 2015