AMENDMENT NO. 2 TO PREFERRED STOCK AGREEMENT
AMENDMENT NO. 2 (the "Amendment") dated as of January , 2003 to the
Preferred Stock Agreement dated as of November 29, 1994, as amended by Amendment
No. 1 to Preferred Stock Agreement dated as of September 6, 1999 (as so amended,
the "Preferred Stock Agreement") between Philippine Long Distance Telephone
Company, a corporation organized under the laws of the Republic of the
Philippines, and its successors (the "Company") and JPMorgan Chase Bank, as
successor depositary.
W I T N E S S E T H:
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WHEREAS, the Company and Citibank, N.A. entered into the Preferred
Stock Agreement for the purposes set forth therein;
WHEREAS, Citibank, N.A. and all holders from time to time of Global
Depositary Receipts (the "GDRs") evidencing Global Depositary Shares ("GDSs")
representing Series III Convertible Preferred Stock of the Company ("Shares")
entered into a Preferred Stock Deposit Agreement dated as of November 29, 1994,
as amended by Amendment No. 1 to Preferred Stock Deposit Agreement dated as of
September 6, 1999 (as so amended, the "Deposit Agreement");
WHEREAS, the Citibank, N.A. has resigned as depositary under the
Deposit Agreement and the Preferred Stock Agreement and the Company has
appointed JPMorgan Chase Bank as successor depositary under the Deposit
Agreement and the Preferred Stock Agreement;
WHEREAS, JPMorgan Chase Bank has accepted its appointment as successor
depositary (the "Depositary") under the Deposit Agreement and the Preferred
Stock Agreement;
WHEREAS, the Company desires to continue to provide for the deposit of
Shares with the Depositary or the Custodian as agent for the Depositary and for
the execution and delivery of GDRs evidencing GDSs representing the Shares so
deposited;
WHEREAS, the Company and the Depositary desire to amend and supplement
the terms of the Preferred Stock Agreement inter alia to reflect the appointment
of JPMorgan Chase Bank as the successor depositary.
NOW, THEREFORE, the Company and the Depositary hereby amend and
supplement the Preferred Stock Agreement, effective as of the Effective Date set
forth in Section 4.01 hereof, as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. All capitalized terms used but which are not
otherwise defined herein shall have the respective meanings given to them in the
Preferred Stock Agreement or if not so defined in the Preferred Stock Agreement
then as defined in the Deposit Agreement.
ARTICLE II
AMENDMENT TO PREFFERED STOCK AGREEMENT
Section 2.01. Except with respect to the Custodian, all references in
the Preferred Stock Agreement to "Citibank, N.A." or the "Depositary" shall be
references to "JPMorgan Chase Bank".
Section 2.02. The first two sentences of Section 10 of the Preferred
Stock Agreement are amended to read as follows:
The Depositary will not resign as Depositary under the Deposit
Agreement and terminate this Agreement unless it has given 30
days' written notice of its election so to do to the Company,
such resignation and termination to take effect upon the
appointment of a successor depositary and its acceptance of
such appointment as hereinafter provided. The Company may
remove the Depositary under the Deposit Agreement on 30 days
prior written notice of its election so to do to the
Depositary.
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In case at any time the Depositary acting under the Deposit
Agreement shall resign or be removed, the Company shall use
its best efforts to name a successor depositary, which shall
be a bank or trust company having an office in the Borough of
Manhattan, The City of New York.
Section 2.03. The address of the Depositary set forth in second
paragraph of Section 14 of the Preferred Stock Agreement is amended to read:
JPMorgan Xxxxx Xxxx, 0 Xxxxx Xxxxxxxxx Plaza, 40th Floor, New York, New
York 10081, Attention: GDR Department, Fax: (000) 000-0000.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, the Depositary, that:
(a) This Amendment, when executed and delivered by the Company, will be
duly and validly authorized, executed and delivered by the Company, and
constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its 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 and the Preferred Stock
Agreement amended hereby, and any other document furnished hereunder or
thereunder in The Republic of the Philippines, neither of such agreements
need to be filed or recorded with any court or other authority in The
Republic of the Philippines, nor does any stamp or similar tax or
governmental charge need to be paid in The Republic of the Philippines on
or in respect of such agreements; and
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(c) All relevant information provided to the Depositary by the Company in
connection with this Amendment is in every material respect true, accurate
and correct, in the context in which they were provided.
SECTION 3.02. Representations and Warranties of the Depositary. The
Depositary represents and warrants to, and agrees with, the Company, that:
(a) This Amendment, when executed and delivered by the Depositary, will be
duly and validly authorized, executed and delivered by the Depositary, and
constitutes the legal, valid and binding obligation of the Depositary,
enforceable against the Depositary in accordance with its 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) All relevant information provided by the Depositary in connection
with this Amendment is in every material respect true, accurate and
correct, in the context in which they were provided.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Effective Date. This Amendment is dated as of the date
set forth above and shall be effective as of the time of effectiveness of the
Registration Statement on Form F-6 to be filed by the Depositary in connection
with its appointment as successor Depositary (the "Effective Date").
SECTION 4.02. Indemnification. The parties hereto shall be entitled to
the benefits of the indemnification provisions of Section 12 of the Preferred
Stock Agreement in connection with any and all liability it or they may incur as
a result of the terms of this Amendment and the transactions contemplated
herein, subject to the exceptions provided therein.
SECTION 5.03. Ratification. Except as expressly amended hereby, the
terms, covenants and conditions of the Preferred Stock Agreement, as originally
executed, shall remain in full force and effect.
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IN WITNESS WHEREOF, the Company and the Depositary have caused this
Amendment to be executed by representatives thereunto duly authorized as of the
date set forth above.
PHILIPPINE LONG DISTANCE TELEPHONE
COMPANY
By:
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Name:
Title:
By:
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Name:
Title:
JPMORGAN CHASE BANK
By:
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Name:
Title: Vice President
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