Exhibit 4.4
SUPPLEMENTAL AGREEMENT
SUPPLEMENTAL AGREEMENT, dated as of August 6, 2004, between
Distribucion y Servicio D&S S.A., a company organized under the laws of the
Republic of Chile, and its successors (the "Company"), and JPMorgan Chase Bank,
a New York corporation (the "Depositary").
W I T N E S S E T H :
WHEREAS, the Company is issuing to holders of its shares of common
stock transferable Rights to subscribe for new shares of common stock and is
extending the Offering (as defined below, the "Offering") to Holders (as defined
below, "Holders") of ADRs (as defined below, "ADRs") by issuing to such Holders
non-transferable ADR Rights to subscribe for New ADSs (as defined below, "New
ADSs") on a corresponding basis; and
WHEREAS, the Company and the Depositary are parties to the Deposit
Agreement (as defined below) which provides in paragraph (10) of the form of ADR
set forth in Exhibit A thereof, inter alia, for the distribution of rights to
Holders of ADRs at the request of the Company and upon compliance with
applicable laws; and
WHEREAS, the Company has requested that the Depositary make rights
available to Holders of ADRs in connection with the Offering and has taken all
necessary action to register the offered securities under the U.S. Securities
Act of 1933, as amended (the "Securities Act") and to otherwise comply with
applicable laws; and
WHEREAS, the Company has requested that the Depositary act as ADR
Rights Agent in connection with the Offering of New ADSs, and the Depositary is
willing to accept such appointment, upon the terms and subject to the conditions
set forth herein;
WHEREAS, the Company's Registration Statement (as defined below) has
become effective under the Securities Act;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1. Definitions. As used herein, the following terms shall have the
meanings herein specified and shall include in the singular number the plural
and in the plural number the singular:
ADRs shall mean American Depositary Receipts issued under the
Deposit Agreement evidencing the ADSs.
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ADR Record Date shall mean, with respect to ADSs, 5:00 P.M. (New
York City time) on July 30, 2004 or such later date as shall be
established by agreement between the Company and the Depositary.
ADR Rights shall have the meaning ascribed thereto in paragraph 2
hereof.
ADR Rights Agent shall mean the Depositary, as agent of the Company
pursuant to paragraph 3 hereof, having its office for the administration
of the ADRs at 0 Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
ADR Rights Agent's Office shall mean the office or agency of the ADR
Rights Agent for the receipt of deliveries of securities and instructions
from Holders, which shall be JPMorgan Chase Bank, x/x Xxxxxxx, XX Xxx
000000, Xxxxxxxxx, XX 00000-0000 for mail deliveries, JPMorgan Chase Bank,
c/o Colbent, 000 Xxx Xxxxx Xxxxx Xxxxxxxxx, XX 00000 for courier
deliveries, and JPMorgan Chase Bank, c/o Securities Transfer and Reporting
Services, Inc., 000 Xxxxxxxx Xx. 0xx Xxxxx, Xxx Xxxx, XX 00000 for hand
deliveries.
ADR Offering shall mean the offer by the Company of the New ADSs to
Holders on the ADR Record Date made in the Prospectus.
ADR Rights Certificate shall mean a non-transferable rights
certificate evidencing ADR Rights, substantially in the form annexed
hereto as Exhibit A.
ADSs shall mean American Depositary Shares, each representing
fifteen Shares, evidenced by ADRs.
Agreement shall mean this Supplemental Agreement, as the same may be
amended, supplemented or otherwise modified from time to time in
accordance with the terms hereof.
Commission shall mean the United States Securities and Exchange
Commission.
Company Notice shall mean the notice provided by the Company to be
mailed by the ADR Rights Agent on behalf of the Company to the Holders,
substantially in the form of Exhibit B annexed hereto.
Custodian shall mean the entity acting as the Custodian under the
Deposit Agreement.
Deposit Agreement shall mean the Deposit Agreement dated as of
October 7, 1997 among the Company, the Depositary and each holder from
time to time of ADRs issued thereunder.
Effective Date shall mean the date on which the Registration
Statement is declared effective by the Commission.
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Eligible Institutions shall mean a financial institution that is a
member of the Securities Transfer Agents Medallion Program, the Stock
Exchange Medallion Program or The New York Stock Exchange, Inc. Medallion
Program.
Expiration Date shall mean 12:00 P.M. (New York City time) on August
27, 2004, or such other date as shall be established by agreement between
the Company and the ADR Rights Agent.
Holders shall mean registered holders of ADRs as shown on the
register maintained by the Depositary or its agent on the ADR Record Date.
Lost ADR Rights Certificate Form shall have the meaning ascribed
thereto in paragraph 6 (d) hereof.
New ADSs shall mean the ADSs being offered for subscription by the
Company pursuant to the ADR Offering.
New Shares shall mean the Shares being offered for subscription by
the Company pursuant to the Offering.
Offering shall mean the offer by the Company of New Shares by way of
Rights to holders of Shares on the share register of the Company.
Prospectus shall mean the final prospectus included as part of the
Registration Statement.
Registration Statement shall mean the Registration Statement on Form
F-3 in respect of the New Shares, the Rights and the ADR Rights, including
all exhibits thereto, as amended at the time such Registration Statement
becomes effective under the Securities Act.
Rights shall mean the rights to subscribe for the New Shares on the
basis of 0.18 Rights for each Share held of record, one Right being
required to subscribe for a New Share, which Rights are being offered
pursuant to the Offering.
Securities Act shall mean the United States Securities Act of 1933,
as amended.
Share Rights Agent shall mean Deposito Central de Valores, the
subscription agent for the Company's Shares in the Republic of Chile.
Share Subscription Price shall mean the subscription price payable
to exercise a Right.
Shares shall mean the Company's shares of common stock, no par value
each.
Subscription Form shall mean the subscription form mailed by the
Company to all holders of Shares which will contain instructions for the
exercise of Rights.
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Subscription Price shall mean the U.S. dollar price at which Holders
may subscribe for New ADSs pursuant to the ADR Offering, as specified in
the Prospectus.
2. ADR Offering. The Company proposes to offer to Holders
non-transferable rights (the "ADR Rights") to subscribe for New ADSs at the
Subscription Price, on the basis of 0.18 ADR Rights for every ADS held of record
on the ADR Record Date, one ADR Rights being required to subscribe for each New
ADS. The ADR Offering will be made by means of the Prospectus to be mailed to
such Holders. The ADR Rights will be evidenced by the ADR Rights Certificates.
3. Appointment of ADR Rights Agent. The Company hereby appoints the
Depositary as ADR Rights Agent to perform the duties specifically undertaken by
it to perform pursuant to the Agreement as agent for the Company in connection
with the ADR Offering. The Depositary accepts such appointment subject to the
terms hereof. A certified copy of the resolution of a duly authorized committee
of the Board of Directors of the Company authorizing the transaction is annexed
hereto as Exhibit B.
4. Allocation of ADR Rights; Rights. Each Holder of record on the
ADR Record Date will be entitled to 0.18 ADR Rights for each ADS then held. The
ADR Rights are to be evidenced by ADR Rights Certificates. Sufficient quantities
of the ADR Rights Certificates, Prospectuses, Company Notices, forwarding
envelopes, and the cover letters and instructions referred to below will be
supplied to the ADR Rights Agent by the Company or its financial printer (the
"Financial Printer") on or about August 6, 2004. Prior to the date in which the
ADR Rights Agent or Depositary allocates ADR Rights, the Depositary shall have
received through its or its Custodian, such number of Rights that corresponds to
the aggregate number of ADSs Rights to be issued hereunder.
5. Preparation of ADR Rights Certificates. (a) the Company will
cause ADR Rights Certificates to be prepared, in the form of the attached
Exhibit A, for issuance to the Holders as of the ADR Record Date. The Company
authorizes the ADR Rights Agent to place the information set forth in (b) below
upon each ADR Rights Certificates prior to the ADR Record Date and to destroy
any ADR Rights Certificate which is not issued as a result of any transfer or
assignment of all or a portion of the ADRs in respect of which it was prepared.
(b) The ADR Rights Agent will cause to appear on each ADR Rights
Certificate (i) the name and address of the Holder to whom such ADR Rights
Certificate is issued, (ii) the number of ADR Rights to which such Holder is
entitled, and (iii) the number of such ADR Rights Certificate.
(c) The ADR Rights Agent, in connection with the original issuance
of the ADR Rights Certificates, shall authenticate the ADR Rights Certificates
by either the manual or the facsimile signature of a duly authorized signatory
of the ADR Rights Agent.
6. Issuance of ADR Rights Certificates. (a) On or as soon as
practicable after August 6, 2004 (i) the Company or its U.S. counsel will advise
the ADR Rights Agent in
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writing (which writing may take the form of correspondence by electronic mail to
Xxxxxxx.x.xxxxx@xxxxxxxx.xxx and Xxxxxxx@xxx.xxx) that the Registration
Statement has been declared effective by the Commission, (ii) the Company will
arrange for delivery by the Financial Printer of sufficient numbers of copies of
the Prospectus, the Company Notice, cover letters and instructions referred to
below to the ADR Rights Agent, (iii) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, U.S.
counsel for the Company, will deliver to the ADR Rights Agent two original
copies of their opinion to the effect that (A) assuming that the Rights Agency
Agreement constitutes the valid and legally binding obligation of the ADR Rights
Agent, the Rights Agency Agreement has been duly executed and delivered by the
Company under the laws of the State of New York and constitutes a valid and
legally binding obligation of the Company enforceable against the Company in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law), an implied
covenant of good faith and fair dealing and to the effects of the possible
judicial application of foreign laws or foreign governmental or judicial action
affecting creditors' rights, and (B) the Registration Statement has become
effective under the Securities Act and, to its knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued or
proceeding for that purpose has been instituted or threatened by the U.S.
Securities and Exchange Commission, and (iv) Xxxxx y Cia, Chilean outside
counsel to the Company, will deliver to the ADR Rights Agent two original copies
of their opinion to the effect that (A) the New Shares, when subscribed and
issued, will be validly issued, fully paid and non-assessable, (B) the Rights
have been duly and validly authorized and issued by the Company and are
nonassessable and free of any preemptive rights, and (C) this Agreement has been
duly authorized, executed and delivered and constitutes a valid and legally
binding obligation of the Company, and (v) Xxxxxxx Xxxxxxx & Xxxxxxxx LLP will
advise the ADR Rights Agent in writing with a memorandum detailing the ADR
Rights Agent's tax reporting requirements, if any, with respect to each of the
ADR Rights and the consideration remitted to Holders on account of unexercised
ADR Rights and the form or forms, if any, which the ADR Rights Agent must use to
report such ADR Rights and consideration to such Holders.
(b) As soon as practicable after the ADR Record Date and the
Effective Date, the ADR Rights Agent will send by first class mail (without
registration or insurance), to each Holder of ADRs on the ADR Record Date:
(A) a copy of the Prospectus;
(B) an ADR Rights Certificate evidencing the ADR Rights to
which such Holder is entitled pursuant to the ADR
Offering
(C) a copy of the instructions relating to the exercise of
the ADR Rights Certificate, substantially in the form
annexed hereto as Exhibit D; and
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(D) a return envelope addressed to the ADR Rights Agent for
use by such Holder in connection with the exercise of
such ADR Rights Certificates;
(c) In the event that any ADR Rights Certificate is returned to the
ADR Rights Agent for any reason and a proper delivery thereof cannot be
effected, such ADR Rights Certificate will be held by the ADR Rights Agent and
will be treated as unexercised.
(d) The Company authorizes the ADR Rights Agent to waive proof of
authority to sign by individuals (including the right to waive signatures of
co-fiduciaries and proof of appointment or authority of any fiduciary or other
person acting in a representative capacity). In the event that, prior to the
Expiration Date, any person notifies the ADR Rights Agent that the ADR Rights
Certificate to which such person is entitled has not been delivered, or has been
lost, stolen or destroyed, the ADR Rights Agent will furnish to such person a
copy of the Prospectus and a form prepared by the Company (a "Lost ADR Rights
Certificate Form") on which the ADR Rights Agent will indicate the name and
address of the registered holder of the Lost ADR Rights Certificate, the number
of such ADR Rights Certificate and the number of ADR Rights evidenced thereby.
Upon payment by the claimant of such reasonable costs and expenses that may be
incurred in connection therewith, and on such reasonable terms as to evidence
and indemnity as the Company may reasonably require, the ADR Rights Agent will
arrange for the issuance of a new ADR Rights Certificate to any person from whom
it has received a duly executed and completed Lost ADR Rights Certificate Form
prior to the Expiration Date provided, however, that such issuance may be
delayed by the ADR Rights Agent, in its discretion, pending receipt of an
indemnity from such person satisfactory to the Company and the ADR Rights Agent
and confirmation that such lost ADR Rights Certificate has not been exercised.
7. Sale of ADR Rights. On or about August 27, 2004, the ADR Rights
Agent shall inform the Company of the number of ADR Rights which were not
properly exercised by Holders. The ADR Rights Agent shall thereafter endeavor to
have the Rights relating to unexercised ADR Rights sold through its Custodian.
If they are sold at a price in excess of the expenses of sale and processing
costs, the ADR Rights Agent will endeavor to have the amount it receives paid to
Holders entitled thereto (but only if the Holder otherwise entitled thereto is
entitled to an amount in excess of $5.00).
8. Acceptance of Subscriptions. (a) The Company hereby authorizes
and directs the ADR Rights Agent to accept subscriptions for New ADSs on behalf
of the Company upon payment of the Subscription Price and the exercise of ADR
Rights Certificates in accordance with the terms thereof and hereof. The Company
further authorizes the ADR Rights Agent to refuse to accept, in its discretion,
any improperly completed or unexecuted ADR Rights Certificate. Notwithstanding
the foregoing, without further authorization from the Company, the ADR Rights
Agent shall accept, on or before the Expiration Date, except where otherwise
specified, any of the following:
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(i) any subscription effected in accordance with the terms of the ADR
Rights Certificates and received by the ADR Rights Agent on or before the
Expiration Date;
(ii) any subscription with respect to which a subscriber has failed to
execute an ADR Rights Certificate in the manner provided by the terms
thereof, provided that (A) the subscriber has indicated on such ADR Rights
Certificate, or by written communication, the manner in which the
subscriber wishes to subscribe and (B) proper payment has been made by
such subscriber;
(iii) any subscription by payment of the Subscription Price accompanied by
a check drawn on a U.S. bank, notwithstanding that such check may not be
cleared prior to the Expiration Date, provided, however, that the ADR
Rights Agent will not deliver the new ADRs evidencing the New ADSs to the
subscribing party until such subscribing party's check has cleared and
provided, further, that in the event such party's check does not clear,
the ADR Rights Agent shall use its best efforts to sell such New ADSs to
cover the payment for such subscription at a public or private sale, at
such place or places and upon such terms as it may deem proper, and the
ADR Rights Agent may allocate the proceeds of such sales for the account
of the subscriber upon an averaged or other practicable basis without
regard to any distinctions among such subscribers because of exchange
restrictions or otherwise, and provided, further, that if such proceeds of
sale are insufficient to cover the payment for such subscription, the
Company shall indemnify the ADR Rights Agent against any losses it may
incur in the event such check is not cleared by the paying bank; In
connection with any funds advanced by the ADR Rights Agent pending
clearance (or failure of clearance) of any checks, the Company shall
reimburse, and pay, the ADR Rights Agent any and all of its expenses
incurred in connection therewith plus interest on all funds advanced as if
such advanced funds were in the form of a loan by the ADR Rights Agent to
the Company.
(iv) any subscription by an individual (and not by a corporation,
partnership or fiduciary) which is accompanied by a check drawn by an
individual (and not by a corporation, partnership or fiduciary) other than
the subscriber, provided, that (a) the ADR Rights Certificate surrendered
therewith has been duly executed by the subscriber, (b) the subscriber is
the registered holder of such ADR Rights Certificate, (c) the check
tendered in payment of such subscription is drawn for the proper amount
and to the order of the ADR Rights Agent, and is otherwise in order and
(d) there is no evidence indicating that such check was delivered to the
subscriber by the drawer thereof for any purpose other than the payment of
the accompanying subscription;
(v) any subscription by a custodian on behalf of a minor which is
accompanied by a check drawn by such custodian, if the provisos set forth
in clause (iv) above are satisfied; and
(vii) any subscription by an individual, (and not by a corporation,
partnership or fiduciary) which is accompanied by a check drawn by a
corporation, partnership or
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fiduciary other than the subscriber, if the provisos set forth in clause
(iv) above are satisfied.
(b) The Company authorizes the ADR Rights Agent to waive proof of
authority to sign (including the right to waive signatures of co-fiduciaries and
proof of appointment or authority of any fiduciary or other person acting in a
representative capacity) in connection with any subscription with respect to
which:
(i) the surrendered ADR Rights Certificate is registered in the name of an
executor, administrator, trustee, custodian for a minor or other fiduciary
and has been executed by such registered holder, provided that the New
ADSs subscribed for are to be issued in the name of such registered
holder;
(ii) the surrendered ADR Rights Certificate is registered in the name of a
corporation and has been executed by an officer of such corporation,
provided that the New ADSs subscribed for are to be issued in the name of
such corporation; or
(iii) the surrendered ADR Rights Certificate has been executed by a bank,
trust company or broker as agent for the registered holder thereof,
provided that the New ADSs subscribed for are to be issued in the name of
such registered holder; or
(iv) the surrendered ADR Rights Certificate is registered in the name of a
decedent and has been executed by a person who purports to act as the
executor or administrator of such decedent's estate, provided that (a)
such subscription is for not more than 50 New ADSs, (b) the New ADSs are
to be issued in the name of such person as executor or administrator of
such decedent's estate, (c) the check tendered in payment of such
subscription is drawn for the proper amount and to the order of the ADR
Rights Agent, and is otherwise in order, and (d) there is no evidence
indicating that such person is not the duly authorized representative
which such person purports to be.
In all cases other than those described in clauses (i) through (iv) above, the
ADR Rights Agent will be required to obtain all necessary proof of authority to
sign in connection with subscriptions for New ADSs; provided, however, that in
the event that such proof of authority has not been received on or prior to the
Expiration Date, the ADR Rights Agent may obtain advice from the Company or its
U.S. counsel as to whether any such subscriptions may be accepted and the ADR
Rights Agent shall have no liability whatsoever in the event it acts in good
faith in accordance with such advice nor shall the ADR Rights Agent be required
to issue such New ADSs in the event it does not receive such advice from the
Company prior to the Expiration Date and shall have no liability whatsoever for
any such action.
(c) The Company authorizes the ADR Rights Agent to accept customary
letters of indemnification from Eligible Institutions with respect to
non-conforming aspects of documents delivered in connection with subscriptions
for New ADSs.
9. Reports by ADR Rights Agent. (a) the ADR Rights Agent will advise
the Company by letter or by facsimile transmission (i) on or about the Effective
Date, as to the total
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number of ADSs outstanding and the total number of registered Holders of ADRs as
of a recent date and (ii) at the close of each week during the period from
August 13, 2004 through the Expiration Date on which subscriptions are effected
and on the Expiration Date, as to (a) the total number of New ADSs subscribed
for as of the close of business on the previous business day pursuant to the
exercise of ADR Rights Certificates and (b) the aggregate amount of funds
received by the ADR Rights Agent in payment of such Subscriptions.
(b) Not later than the close of business (New York time) on August
27, 2004, the ADR Rights Agent will (i) telex its Custodian information
concerning the number of ADSs subscribed, authorizing and instructing the
custodian to complete, execute and deliver to the Share Rights Agent a
Subscription Form reflecting such information (and the information referred to
in the next sentence) prior to 9:30 A.M. (Chilean time) no later than on
September 4, 2004; and (ii) pay the Share Subscription Price for the number of
Shares represented by such ADS for which payment was properly received.
10. Subscription Price Payments. (a) The Subscription Price shall be
tendered to the ADR Rights Agent by subscribers in U.S. dollars. Such payment
must be received by the ADR Rights Agent no later than 12:00 P.M. on August 27,
2004. The Subscription Price to be collected by the ADR Rights Agent from
subscribers shall be, per Holder, equal to 115% of the Share Subscription Price
converted into U.S. dollars at the observed exchange rate reported by the Banco
Central de Chile (the Central Bank of Chile) on August 5, 2004. The ADR Rights
Agent, as agent for the subscribers, will arrange to convert payments made on
the basis of the Subscription Price from U.S. dollars into Chilean pesos for
payment to the Share Rights Agent. The ADR Rights Agent will make the conversion
from U.S. dollars into Chilean pesos on or about August 31, 2004. In the event
that a payment of the Subscription Price made by a holder of ADR Rights in
respect of his subscription, when converted into Chilean pesos, exceeds the
Share Subscription Price plus any stamp or other tax owing for the number of New
ADSs subscribed for upon exercise of such ADR Rights, the Subscription Agent
shall, at the time it delivers New ADSs evidenced by ADRs, remit the excess in
U.S. dollars (without interest) to the subscriber, provided, however, that the
ADR Rights Agent shall not be obligated to return any funds to any subscriber or
Holder unless the amount owing to such subscriber or Holder exceeds $5.00.
(b) In the event that a payment of the Subscription Price made by a
holder of ADR Rights in respect of his subscription, when converted into Chilean
pesos, is less than the Share Subscription Price plus any stamp or other tax
owing for the number of New ADSs subscribed for upon exercise of such ADR
Rights, the ADR Rights Agent will pay the amount of such deficiency on behalf of
such holder. The holder will then be required to pay the amount of such
deficiency promptly (including interest and expenses) to the ADR Rights Agent
who need not send any New ADSs subscribed for by a holder prior to the receipt
by the ADR Rights Agent of such payment. If payment of the amount of any
deficiency is not received from a subscriber by the ADR Rights Agent by
September 10, 2004, the ADR Rights Agent may sell such New ADSs subscribed for
by such subscriber at a public or private sale, at such place or places and upon
such terms as it may deem proper, and the ADR Rights Agent may allocate the
proceeds of such sales for the account of exchange restrictions, or otherwise in
an amount sufficient to cover such deficiency (including interest and expenses).
In such event, the ADR Rights Agent will
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then send promptly any remaining New ADSs to such holder together with a check
in the amount of excess proceeds, if any, from such sale provided, that, if the
amount of such excess proceeds realized upon the sale of such holder's ADRs is
less than $5.00, such excess proceeds need not be distributed. The ADR Rights
Agent shall have the full right to indemnity, reimbursement or otherwise as
against the Company with respect to the amount of any deficiency.
11. Issuance of New ADSs. The Company shall provide notice to the
ADR Rights Agent that the allotment of New Shares has been made to the
Depositary. As soon as practicable following receipt of notification from the
Custodian that the New Shares issued in respect of the New ADSs subscribed for
pursuant to the ADR Offering have been delivered to the Custodian on behalf of
the Depositary pursuant to the terms of the Deposit Agreement dealing with
deposits of Shares, and in accordance with the terms of the Deposit Agreement,
the Depositary shall commence preparing new ADRs (which may be in the form of
direct registration receipts) to evidence the New ADSs and deliver them to the
ADR Rights Agent and the ADR Rights Agent will, if applicable, mail to each
subscriber of New ADSs, in the manner specified by such subscriber, a new ADR
certificate representing, or a direct registration system statement evidencing,
the number of New ADSs for which such subscriber has subscribed. Each new ADR
certificate or direct registration system statement, as the case may be, will be
registered in the name specified by the subscriber on its surrendered ADR Rights
Certificate.
12. Supplies of Documents. The Company will cause the definitive
forms of the Company Notice and such other items as are referred to in paragraph
6 above to be furnished to the ADR Rights Agent when the same become available
along with adequate copies of the Prospectus to distribute to Holders and to
transferees of ADR Rights. The ADR Rights Agent shall have no obligations
hereunder to the extent it does not receive sufficient forms of such documents
and items.
13. Indemnification. The Company will indemnify the Depositary, in
its capacities as ADR Rights Agent and Depositary, as well as its employees,
directors, officers and agents against, defend and hold each of them harmless
from, any and all claims, actions, judgments, damages, losses, liabilities,
costs, transfer or other taxes, or expenses (including without limitation
reasonable attorney's fees and expenses) (each, a "Loss", collectively "Losses")
which may be paid, incurred or suffered by any of them, or to which any of them
may become subject, arising out of or incident to this Agreement, or which may
arise out of acts performed or omitted in connection with this Agreement, as the
same may be amended, modified or supplemented from time to time, or the
administration of any duties hereunder, or arising out of or incident to
compliance with the instructions set forth herein or with any instructions
delivered pursuant hereto, or as a result of defending against any claim or
liability resulting from such party's actions hereunder; provided, however that
none of them shall be entitled to indemnification for any Loss arising out of
its gross negligence or willful misconduct. The obligations set forth in this
Section 13 shall survive the termination of this Agreement and the succession of
substitution of any indemnified person.
14. Limitation on Liabilities
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(a) The ADR Rights Agent shall have no duties or obligations other
than those specifically set forth herein, including any duties or obligations
under any other agreement, and no implied duties or obligations shall be read
into this Agreement against the ADR Rights Agent.
(b) The ADR Rights Agent makes no, and will not be deemed to have
made, any representations with respect to, and shall have no duties,
responsibilities or obligations with respect to determining, the validity,
sufficiency, value or genuineness of any securities or other documents deposited
with or delivered to it or any signature or endorsement set forth on or in
connection with such documents.
(c) The ADR Rights Agent shall not be obligated to commence or
voluntarily participate in any suit, action or proceeding arising or related to
this Agreement.
(d) The ADR Rights Agent shall not be liable or responsible for any
of the statements of fact or recitals contained in this Agreement, any document
relating to the ADR Rights or Rights, or any other document or security
delivered to it in connection with this Agreement, and shall not be required to,
and shall not, verify or determine the correctness, validity or accurateness of
any such statements or recitals contained therein.
(e) The ADR Rights Agent may rely upon and comply with, and shall
incur no liability for relying upon and complying with, any certificate,
instrument, opinion of counsel, notice, letter, resolution, telegram, records,
waiver, consent, order, certificate, or other paper, document, instrument or
security delivered to it believed by it to be genuine and to have been signed,
sent or presented by the proper party or parties.
(f) The ADR Rights Agent will be entitled to rely upon any
instructions or directions furnished to it by the Company, and to apply to the
Company for advice or instructions in connection with its duties, and (i) will
be entitled to treat as genuine, and as the document it purports to be, any
letter or other document or instrument furnished to it by such individuals and
(ii) shall not be liable for any action taken or suffered to be taken by it in
good faith in accordance with instructions of any such officer or for any delay
in acting while waiting for those instructions. Any application by the ADR
Rights Agent for written instructions from the Company may, at the option of the
ADR Rights Agent, set forth in writing any action proposed to be taken or
omitted by the ADR Rights Agent under this Agreement and the date on/or after
which such action shall be taken or such omission shall be effective. The ADR
Rights Agent shall not be liable for any action taken by, or omission of, the
ADR Rights Agent in accordance with a proposal included in such application on
or after the date specified in such application unless prior to taking any such
action (or the effective date in the case of an omission), the ADR Rights Agent
shall have received written instructions in response to such application
specifying the action to be taken or omitted.
(g) The ADR Rights Agent may perform any duties hereunder either
directly or by or through its nominees, correspondents, designees, agents,
subagents or subcustodians and ADR Rights Agent shall not be responsible for any
misconduct or negligence on the part of any nominee,
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correspondent, designee, agent, subagent or subcustodian appointed, instructed
and supervised with due care by it hereunder.
(h) The ADR Rights Agent shall not be liable for any Losses or
action taken or omitted or for any loss or injury resulting from its or its
agents actions or performance or lack of performance of its duties hereunder in
the absence of gross negligence or willful misconduct on its part, in which case
it shall be liable for only those Losses directly caused by such conduct. In no
event shall the ADR Rights Agent be liable for (i) acting in accordance with the
instructions from the Company or the Company's counsel or any agent appointed by
the Company to act on behalf of Company, (ii) indirect, special, consequential
or punitive damages, for lost profits, or for loss of business, or (iii) any
Losses due to forces beyond the control of the ADR Rights Agent or its agents,
including without limitation, strikes, work stoppages, acts of war or terrorism,
insurrection, revolution, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services. Notwithstanding anything to the contrary
contained herein this Agreement, the aggregate liability of the ADR Rights Agent
and each of its agents with respect to, arising from or arising in connection
with this Agreement or from any and all services provided or omitted to be
provided hereunder, whether in contract, tort or otherwise, is limited to, and
shall not exceed, $500,000.
15. Dealing in Securities. The ADR Rights Agent, any affiliate
thereof, and any shareholder, director, officer or employee of the ADR Rights
Agent or its affiliates may buy, sell or deal in any of securities of the
Company or become pecuniarily interested in any transaction in which the Company
may be interested, or contract with or lend money to the Company or otherwise
act as fully and freely as though the ADR Rights Agent were not the ADR Rights
Agent under this Agreement. Nothing herein shall preclude the ADR Rights Agent
from acting in any other capacity for the Company or for any other legal entity.
16. In consideration for the services to be rendered herein, the
Company shall compensate the ADR Rights Agent in accordance with and pursuant to
a written fee schedule as shall be agreed upon by the Company and the ADR Rights
Agent from time to time, In addition, the Company shall reimburse the plus the
ADR Rights Agent's disbursements, charges and out-of-pocket expenses and counsel
fees and expenses incurred in connection with the preparation and execution of
this Agreement and the services rendered hereunder. No provision of this
Agreement shall require the ADR Rights Agent to expend or risk the ADR Rights
Agent's own funds or otherwise incur any financial liability in the performance
of any of the ADR Rights Agent's duties hereunder or in the exercise of the ADR
Rights Agent's rights.
17. Governing Law; Jurisdiction; Certain Waivers. (a) This Agreement
shall be interpreted and construed in accordance with the internal substantive
laws of the State of New York. All actions and proceedings brought by the ADR
Rights Agent relating to or arising from, directly or indirectly, this Agreement
may be litigated in courts located within the State of New York. The Company
hereby submits to the personal jurisdiction of such courts; hereby waives
personal service of process and consents that any such service of process may be
made by certified or registered mail, return receipt requested, directed to the
Company at its address last specified for notices hereunder; and hereby waives
the right to a trial by jury in any action or proceeding with the ADR Rights
Agent.
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All actions and proceedings brought by the Company against the ADR Rights Agent
relating to or arising from, directly or indirectly, this Agreement shall be
litigated only in courts located within the State of New York.
(b) The invalidity, illegality or unenforceability of any provision
of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision; and if any provision is held to be
unenforceable as a matter of law, the other provisions shall not be affected
thereby and shall remain in full force and effect.
18. Rights and Remedies. The rights and remedies conferred upon the
parties hereto shall be cumulative, and the exercise or waiver of any such right
or remedy shall not preclude or inhibit the exercise of any additional rights or
remedies. The waiver of any right or remedy hereunder shall not preclude or
inhibit the subsequent exercise of such right or remedy.
19. Representations and Warranties.
The Company hereby represents, warrants and covenants that:
(a) The Company is a corporation duly organized and validly existing
under the laws of the Republic of Chile.
(b) This Agreement has been duly authorized, executed and delivered
on its behalf and constitutes the legal, valid and binding obligation of the
Company. The execution, delivery and performance of this Agreement by the
Company does not and will not violate any applicable law or regulation and does
not require the consent of any governmental or other regulatory body except for
such consents and approvals as have been obtained and are in full force and
effect. For the avoidance of doubt, all ADR Rights to be issued and delivered
hereunder have been registered with the Securities and Exchange Commission, and
all transactions contemplated by this Agreement are in compliance with, and not
in violation of, the Securities Act , and the U.S. Securities Exchange Act of
1934, as amended.
20. Amendments. This Agreement may be amended, supplemented or
otherwise modified only by a written instrument executed and delivered by each
of the parties hereto.
21. No Third Party Beneficiaries. This Agreement is for the
exclusive benefit of the parties hereto and shall not be deemed to give any
legal or equitable right, remedy or claim whatsoever to any other person.
22. Counterparts. This Agreement may be executed by the parties
hereto on separate counterparts, which counterparts taken together will be
deemed to constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their duly authorized officers as of the day
and year first above written.
DISTRIBUCION Y SERVICIO D&S S.A.
By:
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Name:
Title:
JPMORGAN CHASE BANK
By:
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Name:
Title:
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