TELEFONOS DE MEXICO, S.A. DE C.V. AND JPMORGAN CHASE BANK, N.A., As Depositary AND HOLDERS OF AMERICAN DEPOSITARY RECEIPTS
TELEFONOS
DE MEXICO, S.A. DE C.V.
AND
JPMORGAN
CHASE BANK, N.A.,
As
Depositary
AND
HOLDERS
OF AMERICAN DEPOSITARY RECEIPTS
Amended
and Restated Deposit Agreement
Dated
as
of September , 2006
Series
L
Shares
TABLE
OF
CONTENTS
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Page
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PARTIES
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1
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RECITALS
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1
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ARTICLE
I
Definitions
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SECTION
1.01.
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American
Depositary Shares
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1
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SECTION
1.02.
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Business
Day
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2
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SECTION
1.03.
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Commission
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2
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SECTION
1.04.
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Custodian
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2
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SECTION
1.05.
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Deliver,
Execute, Issue, et al.
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2
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SECTION
1.06.
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2
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SECTION
1.07.
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Depositary's
Office
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2
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SECTION
1.08.
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Deposited
Securities
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2
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SECTION
1.09
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Direct
Registration Receipt
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2
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SECTION
1.10
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Direct
Registration System
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2
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SECTION
1.11.
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Holder
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2
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SECTION
1.12.
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Receipt
Register
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3
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SECTION
1.13.
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Receipts
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3
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SECTION
1.14.
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Securities
Act of 1933
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3
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SECTION
1.15
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Securities
Exchange Act of 1934
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3
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SECTION
1.16.
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Shares
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3
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ARTICLE
II
Form
of Receipts,
Deposit
of Shares,
Execution
and Transfer of Receipts and
Withdrawal
of Deposited Securities
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SECTION
2.01.
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Form
and Transferability of Receipts
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3
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SECTION
2.02.
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Deposit
of Shares
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4
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SECTION
2.03.
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Execution
and Delivery of Receipts
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5
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SECTION
2.04.
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Transfer,
Combination and Split-up of Receipts
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5
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SECTION
2.05.
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Withdrawal
of Deposited Securities
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6
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SECTION
2.06.
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Limitations
on Issuance, Execution and Delivery and Transfer of Receipts and
Withdrawal of Deposited Securities
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7
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SECTION
2.07.
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Substitution
of Receipts
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8
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SECTION
2.08.
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Cancellation
and Destruction of Receipts
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8
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SECTION
2.09.
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Maintenance
of Records
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8
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Page
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ARTICLE
III
Certain
Obligations of Holders
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SECTION
3.01.
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Information
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8
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SECTION
3.02.
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Liability
of Holder for Taxes
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8
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SECTION
3.03.
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Warranties
on Deposit of Shares
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9
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SECTION
3.04.
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Disclosure
of Interests
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9
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ARTICLE
IV
Deposited
Securities
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SECTION
4.01.
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Cash
Distributions
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9
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SECTION
4.02.
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Share
Distributions
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10
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SECTION
4.03.
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Rights
Distributions
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10
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SECTION
4.04.
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Other
Distributions
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11
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SECTION
4.05.
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Conversion
of Foreign Currency
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11
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SECTION
4.06.
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Fixing
of Record Date
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12
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SECTION
4.07.
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Voting
of Deposited Securities
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12
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SECTION
4.08.
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Changes
Affecting Deposited Securities
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14
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SECTION
4.09.
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Withholding
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14
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ARTICLE
V
The
Depositary
and
the Company
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SECTION
5.01.
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Maintenance
of Depositary's Office and Register; Certain Agents of the Depositary;
Lists of Holders
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5
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SECTION
5.02.
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Prevention
or Delay in Performance
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16
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SECTION
5.03.
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Obligations
Limited
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16
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SECTION
5.04.
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Resignation
and Removal of the Depositary; Appointment of Successor
Depositary
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17
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SECTION
5.05.
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The
Custodian
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17
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SECTION
5.06.
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Notices
and Reports to Holders
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18
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SECTION
5.07.
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Issuance
of Additional Shares, etc.
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19
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SECTION
5.08.
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Indemnification
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19
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SECTION
5.09.
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Charges
of Depositary
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20
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SECTION
5.10.
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Statutory
Reports
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21
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SECTION
5.11.
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Available
Information to the Commission
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21
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ii
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Page
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ARTICLE
VI
Amendment
and Termination
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SECTION
6.01.
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Amendment
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21
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SECTION
6.02.
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Termination
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22
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ARTICLE
VII
Miscellaneous
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SECTION
7.01.
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Counterparts
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23
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SECTION
7.02.
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No
Third Party Beneficiaries
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23
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SECTION
7.03.
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Severability
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23
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SECTION
7.04.
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Holders
Parties; Binding Effect
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23
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SECTION
7.05.
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Notices
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23
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SECTION
7.06.
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Governing
Law
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24
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SECTION
7.07.
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Amendment
and Restatement of Old Deposit Agreement
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24
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TESTIMONIUM
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25
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SIGNATURES
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25
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EXHIBIT
A
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FORM
OF FACE OF RECEIPT
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A-1
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Introductory
Paragraph
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A-1
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(1)
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A-2
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(2)
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Withdrawal
of Deposited Securities
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A-2
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(3)
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Transfers,
Split-ups and Combinations
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A-2
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(4)
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Certain
Limitations
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A-3
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(5)
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Liability
of Holder for Taxes
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A-4
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(6)
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Warranties
by Depositor
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A-4
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(7)
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Disclosure
of Interests
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A-4
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(8)
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Charges
of Depositary
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A-5
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(9)
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Title
to Receipts
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A-6
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(10)
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Validity
of Receipt
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A-6
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(11)
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Available
Information
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A-6
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Signature
of Depositary
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A-6
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Address
of Depositary's office
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A-6
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iii
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Page
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FORM
OF REVERSE OF RECEIPT
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A-7
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(12)
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Distributions
upon Deposited Securities
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A-7
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(13)
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Record
Dates
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A-8
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(14)
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Voting
of Deposited Securities
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A-8
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(15)
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Changes
Affecting Deposited Securities
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A-9
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(16)
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Reports;
Inspection of Register
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A-10
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(17)
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Withholding
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A-10
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(18)
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Liability
of the Company and the Depositary
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A-11
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(19)
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Resignation
and Removal of Depositary; the Custodian
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A-12
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(20)
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Amendment
of Deposit Agreement and Receipts
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A-12
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(21)
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Termination
of Deposit Agreement
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A-12
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(22)
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Appointment
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A-13
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iv
AMENDED
AND RESTATED DEPOSIT AGREEMENT dated as of September , 2006 (the
"Deposit Agreement") among TELEFONOS DE MEXICO, S.A. DE C.V., a corporation
organized under the laws of the United Mexican States, and its successors (the
"Company"), JPMORGAN CHASE BANK, N.A., as depositary hereunder (the
"Depositary"), and all holders from time to time of American Depositary Receipts
issued hereunder ("Receipts") evidencing American Depositary Shares representing
deposited Shares (defined below). The Company hereby appoints the Depositary
as
depositary for the Deposited Securities and hereby authorizes and directs the
Depositary to act in accordance with the terms set forth in this Deposit
Agreement. All capitalized terms used herein have the meanings ascribed to
them
in Section 1 or elsewhere in this Deposit Agreement.
W
I T N E
S S E T H
WHEREAS,
the Company and the Depositary entered into the Amended and Restated Deposit
Agreement dated as of May 1, 1992 (the "Old Deposit Agreement") to provide
for
the purposes set forth therein, for the creation of American depositary shares
representing such Shares so deposited and for the execution and delivery of
American depositary receipts ("Old Receipts") evidencing the American depositary
shares;
WHEREAS,
the Company desires to provide for the deposit of Shares of the Company from
time to time with the Depositary or the Custodian and for the execution and
delivery of American Depositary Receipts evidencing the American Depositary
Shares representing the Shares so deposited; and
WHEREAS,
in accordance with the provisions of Section 6.01 of the Old Deposit Agreement,
the Company and the Depositary now wish to amend and restate the Old Deposit
Agreement and the Old Receipts;
WHEREAS,
the American Depositary Receipts are to be substantially in the form of Exhibit
A annexed hereto;
NOW
THEREFORE, in consideration of the premises, the parties hereto hereby amend
and
restate the Old Deposit Agreement and the Old Receipts in their entireties
as
follows:
ARTICLE
I
Definitions
SECTION
1.01. The term "American
Depositary Shares”
shall
mean the rights evidenced by the Receipts executed and delivered hereunder,
including the interests in the Deposited Securities granted to the Holders
of
Receipts pursuant to the terms and conditions of this Deposit Agreement. Each
American Depositary Share shall represent rights to receive 20 Shares until
there shall occur a distribution upon Deposited Securities referred to in
Section 4.02 or a change in Deposited Securities referred to in Section 4.08
with respect to which additional Receipts are not executed and delivered, and
thereafter each American Depositary Share shall represent the right to receive
the Deposited Securities specified in such Sections.
SECTION
1.02. The term "Business
Day"
shall
mean any day other than Saturday, Sunday or a day when commercial banks are
authorized by law to close in Mexico City or New York City.
SECTION
1.03. The term "Commission"
shall
mean the Securities and Exchange Commission of the United States or any
successor governmental agency.
SECTION
1.04. The term "Custodian"
shall
mean one or more agent or agents of the Depositary (singly or collectively,
as
the context requires) named as Custodian in Exhibit A annexed hereto and any
additional or substitute Custodian appointed pursuant to Section
5.05.
SECTION
1.05. The terms "deliver",
"execute",
"issue",
“register”,
“surrender”,
“transfer”
or
“cancel”,
when
used with respect to Direct Registration Receipts, shall refer to an entry
or
entries or an electronic transfer or transfers in the Direct Registration
System.
SECTION
1.06. The term "Deposit
Agreement"
shall
mean this Agreement (including the exhibits hereto), as the same may be amended
from time to time in accordance with the provisions hereof.
SECTION
1.07. The term "Depositary's
Office"
shall
mean the office of the Depositary for the administration of depositary
receipts.
SECTION
1.08. The term "Deposited
Securities"
as of
any time shall mean all Shares at such time deposited under this Deposit
Agreement and any and all other Shares, securities, property and cash received
at any time by the Depositary or the Custodian in respect or in lieu of such
deposited Shares and other Shares, securities, property and cash at such time
held hereunder.
SECTION
1.09. The term "Direct
Registration Receipt"
means a
Receipt, the ownership of which is recorded on the Direct Registration
System.
SECTION
1.10. The term "Direct
Registration System"
means
the direct registration system maintained by the Depositary, pursuant to which
the Depositary may record the ownership of uncertificated Receipts, which
ownership shall be evidenced by periodic statements issued by the Depositary
to
the Holders entitled thereto.
SECTION
1.11. The term “Holder” shall mean the person or persons in whose name a Receipt
is registered on the register maintained by the Depositary for such
purpose.
-2-
SECTION
1.12. The term "Receipt
Register"
means
the register maintained by the Depositary for the registration of transfer,
combination and split-up of Receipts, and, in the case of Direct Registration
Receipts, shall include the Direct Registration System.
SECTION
1.13. The term "Receipts"
shall
mean the American Depositary Receipts executed and delivered hereunder. Receipts
may be either in physical certificated form or Direct Registration Receipts.
Receipts in physical certificated form shall be in substantially the form of
Exhibit A hereto, evidencing American Depositary Shares, as the same may be
amended from time to time in accordance with the provisions hereof. References
to “Receipts” shall include Direct Registration Receipts, unless the context
otherwise requires.
SECTION
1.14. The term "Securities
Act of 1933
" shall
mean the United States Securities Act of 1933, as from time to time amended.
SECTION
1.15. The term "Securities
Exchange Act of 1934
" shall
mean the United States Securities Exchange Act of 1934, as from time to time
amended.
SECTION
1.16. The term "Shares"
shall
mean Series L Shares, without par value, of the Company and shall include rights
to receive such Shares; provided
that
Series L Shares of any subseries shall not be Shares hereunder until they are
entitled to the same rights, including with respect to dividends or other
distributions, as Shares constituting Deposited Securities.
ARTICLE
II
Form
of
Receipts, Deposit of Shares,
Execution
and Transfer of Receipts and
Withdrawal
of Deposited Securities
SECTION
2.01. Form
and Transferability of Receipts.
(a)
Form.
Receipts in certificated form shall be engraved or printed or lithographed
on
steel-engraved borders and shall be substantially in the form set forth in
Exhibit A annexed hereto, with appropriate insertions, modifications and
omissions as hereinafter provided. Receipts may be issued in denominations
of
any number of American Depositary Shares. Receipts in certificated form shall
be
executed by the Depositary by the manual signature of a duly authorized officer
of the Depositary; provided
that
such signature may be a facsimile if a Receipt registrar shall have been
appointed pursuant to Section 5.01 and such Receipts are countersigned by the
manual signature of a duly authorized officer of the Receipt registrar or any
co-registrar. Unless so executed, no Receipt shall be entitled to any benefits
under this Deposit Agreement or be valid or obligatory for any purpose. The
Depositary shall maintain a Receipt Register in which each Receipt so executed
and delivered as hereinafter provided and the transfer of each such Receipt
shall be registered. Receipts in certificated form bearing the facsimile
signature of anyone who was at any time a duly authorized officer of the
Depositary shall
bind the Depositary, notwithstanding that such officer has ceased to hold such
office prior to the delivery of such Receipts. The Receipts in certificated
form
may, with the prior written consent of the Company (which consent shall not
be
unreasonably withheld), be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with this Deposit
Agreement as may be required by the Depositary in respect of its obligations
hereunder or as may be required to comply with any applicable law or regulations
or with the rules and regulations of any securities exchange upon which American
Depositary Shares may be traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject by reason of the date of issuance of the
underlying Deposited Securities or otherwise.
-3-
(b)
Direct
Registration Receipts.
Notwithstanding anything in this Deposit Agreement or in the Receipt to the
contrary, American Depositary Shares shall be evidenced by Direct Registration
Receipts, unless certificated Receipts are specifically requested by the Holder
and for no additional fee. Holders shall be bound by the terms and conditions
of
this Deposit Agreement and of the form of Receipt, regardless of whether their
Receipts are Direct Registration Receipts or certificated Receipts.
(c)
Transferability.
Title
to a Receipt (and to the Deposited Securities represented by the American
Depositary Shares evidenced thereby), when properly endorsed in the case of
Receipts in certificated form or upon delivery to the Depositary of properly
executed instruments of transfer, shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; provided
that the
Company and the Depositary, notwithstanding any notice to the contrary, may
treat the Holder thereof as the absolute owner thereof for the purpose of
determining the person entitled to any distribution or notice and for all other
purposes.
SECTION
2.02. Deposit
of Shares.
(a)
Deposit
with Custodian.
Shares
may be deposited under this Deposit Agreement by delivery thereof to the
Custodian, properly endorsed or accompanied by a duly executed instrument or
instruments of transfer in form satisfactory to the Custodian, together with
any
other documents and payments required under this Deposit Agreement, and a
written order directing the Depositary to issue to, or upon the written order
of, the person or persons stated in such order a Receipt or Receipts through
the
Direct Registration System (or, if specifically requested, certificated
Receipts) for the number of American Depositary Shares representing such
deposited Shares. At the request, risk and expense of any holder of Shares,
and
for the account of such holder, the Depositary may receive certificates for
Shares to be deposited, together with any other documents and payments required
under this Deposit Agreement, for the purpose of forwarding such Share
certificates to the Custodian for deposit hereunder.
(b)
Assignment
and Proxy.
If
required by the Depositary, Shares presented for deposit at any time, whether
or
not any register of Shareholders of the Company is closed, shall also be
accompanied by (1) an agreement or assignment, or other instrument satisfactory
to the Depositary, which will provide for the prompt transfer to the Custodian
or its nominee of any
dividend or right to subscribe for additional Shares or to receive other
property which any person in whose name the Shares are or have been recorded
may
thereafter receive upon or in respect of such deposited Shares, or in lieu
thereof such agreement of indemnity or other agreement as shall be satisfactory
to the Depositary, and (2) if the Shares are registered in the name of the
person on whose behalf they are presented for deposit, a proxy or proxies
entitling the Custodian to vote such deposited Shares for any and all purposes
until the Shares are registered in the name of the Custodian or its
nominee.
-4-
(c)
Registration
and Holding.
Upon
each delivery to the Custodian of a certificate or certificates for Shares
(or
other Deposited Securities pursuant to Section 4.02, 4.03, 4.04 or 4.08) in
registered form to be deposited hereunder, together with any other documents
and
payments required under this Deposit Agreement, the Custodian shall as soon
as
practicable present such certificate or certificates for registration of
transfer of the Shares (or other Deposited Securities) being deposited in the
name of the Custodian or its nominee at the cost and expense of the person
making such deposit (or for whose benefit such deposit is made) and shall obtain
evidence satisfactory to it of such registration. Deposited Securities shall
be
held by the Custodian for the account and to the order of the Depositary at
such
place or places as the Depositary shall determine. Neither the Depositary nor
the Custodian shall lend any Deposited Securities.
SECTION
2.03. Execution
and Delivery of Receipts.
After
the deposit of any Shares pursuant to Section 2.02, the Custodian shall, as
promptly as practicable, notify the Depositary of such deposit and the person
or
persons to whom or upon whose written order a Receipt or Receipts are
deliverable in respect thereof and the number of American Depositary Shares
to
be evidenced thereby. Such notification shall be made by letter, first class
airmail postage prepaid, or, at the request, risk and expense of the person
making the deposit, by cable, telex or facsimile transmission. After receiving
such notice from the Custodian, the Depositary, subject to this Deposit
Agreement, shall, as promptly as practicable, execute and deliver at the
Depositary's Office to or upon the order of the person or persons named in
the
notice delivered to the Depositary, a Receipt or Receipts, registered in the
name or names requested by such person or persons, and evidencing in the
aggregate the number of American Depositary Shares to which such person or
persons are entitled.
SECTION
2.04. Transfer,
Combination and Split-up of Receipts.
The
Depositary, subject to this Deposit Agreement, shall register transfers of
Receipts in the Receipt register from time to time upon receipt at any of its
designated transfer offices of proper instruments of transfer or upon any
surrender of a Receipt at any of its designated transfer offices by the Holder
in person or by duly authorized attorney, properly endorsed or accompanied
by
proper instruments of transfer, and duly stamped as may be required by
applicable law. Thereupon the Depositary shall execute a new Receipt or Receipts
and deliver the same to or upon the order of the person entitled thereto
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the Receipts surrendered. The Depositary, subject to this Deposit
Agreement, shall upon surrender at any of its designated transfer offices of
a
Receipt or Receipts for the purpose of effecting a split-up or combination
of
such Receipt or Receipts, execute
and deliver a new Receipt or Receipts for any authorized number of American
Depositary Shares requested, evidencing the same aggregate number of American
Depositary Shares as those evidenced by the Receipt or Receipts replaced. At
the
request of a Holder, the Depositary shall, for the purpose of substituting
a
certificated Receipt with a Direct Registration Receipt, or vice versa, execute
and deliver a certificated Receipt or a Direct Registration Receipt, as the
case
may be, for any authorized number of American Depositary Shares requested,
evidencing the same aggregate number of American Depositary Shares as those
evidenced by the certificated Receipt or Direct Registration Receipt, as the
case may be, substituted. The Depositary may close the Receipt Register at
any
time or from time to time, when deemed expedient by it in connection with the
performance of its duties hereunder or at the request of the
Company.
-5-
SECTION
2.05. Withdrawal
of Deposited Securities.
Upon
receipt at the Depositary's Office or at such other offices as the Depositary
may designate of a Holder's written order directing the Depositary to cause
the
Deposited Securities represented by the American Depositary Shares evidenced
by
a Receipt to be withdrawn and delivered to or upon the written order of the
person or persons designated in such order, and upon the surrender, if
applicable, of a Receipt (properly endorsed in blank or accompanied by proper
instruments of transfer in blank, to the extent required by the Depositary),
at
the Depositary's Office or at such other offices as it may designate, together
with the Holder's written order directing the Depositary to cause the Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt to be withdrawn and delivered to or upon the written order of the person
or persons designated in such order, the Depositary shall direct the Custodian
to deliver as promptly as practicable, subject to this Deposit Agreement and
to
the provisions of or governing Deposited Securities, to or upon the written
order of the person or persons designated in such order, the Deposited
Securities at the time represented by the American Depositary Shares evidenced
by such Receipt, and the Custodian shall so deliver such Deposited Securities,
at the office of the Custodian, except that the Depositary may, in its
discretion, at the request, risk and expense of the Holder make delivery of
such
Deposited Securities as promptly as practicable to such person or persons at
the
Depositary's Office or at any other place specified by the Holder in such order.
Directions shall be given by letter or, at the request, risk and expense of
the
Holder, by cable, telex or facsimile transmission. Delivery of Deposited
Securities may be made by the delivery of certificates, to the extent such
Deposited Securities may be represented by certificates, which, if required
by
law, shall be properly endorsed or accompanied by properly executed instruments
of transfer, and if such certificates may be so registered, registered in the
name of such Holder, or as ordered by such Holder or properly endorsed or
accompanied by proper instruments of transfer. Notwithstanding
any provision of this Deposit Agreement or the Receipts, the Depositary may
restrict withdrawals of Deposited Securities only for the reasons set forth
in
General Instruction I.A.(l) to Form F-6 under the Securities Act of
1933.
-6-
SECTION
2.06. Limitations
on Issuance, Execution and Delivery and
Transfer of Receipts and Withdrawal of Deposited Securities.
As a
condition precedent to the issuance, execution and delivery, registration,
registration of transfer, split-up or combination of any Receipt,
the delivery of any distribution thereon or, subject to the last sentence of
Section 2.05, the withdrawal of any Deposited Securities, the Depositary, the
Company or the Custodian may require of the Holder, the presenter of the Receipt
or the depositor of Shares: (a) payment of a sum sufficient to pay or reimburse
it for payment of (i) any stock transfer or other tax or other governmental
charge with respect thereto, (ii) any stock transfer or registration fees for
the registration of transfers of Shares or other Deposited Securities upon
any
applicable register and (iii) any charges of the Depositary upon delivery of
Receipts against deposits of Shares and upon withdrawal of Deposited Securities
against surrender of Receipts as set forth in Section 5.09 of this Deposit
Agreement; (b) the production of proof satisfactory to it as to the identity
and
genuineness of any signature and as to any other matter contemplated by Section
3.01; and (c) compliance with such reasonable regulations, if any, as the
Depositary and the Company may establish consistent with the provisions of
this
Deposit Agreement. The delivery of Receipts against deposits of Shares may
be
suspended, deposits of Shares may be refused, or the registration of transfer
of
Receipts, their split-up or combination or, subject to the last sentence of
Section 2.05 hereof, the withdrawal of Deposited Securities may be suspended,
in
particular instances or generally, when the Receipt register or any register
for
Shares or other Deposited Securities is closed, or any time or from time to
time
when any such action is deemed necessary or advisable by the Depositary or
the
Company for any reason, including without limitation any requirement of law
or
of any government or governmental body or commission, any provision of this
Deposit Agreement or the provisions of or governing Deposited Securities, any
meeting of Shareholders or any payment of dividends. The Depositary may issue
Receipts against rights to receive Shares from the Company, or any registrar,
transfer agent, clearing agency or other entity recording Share ownership or
transactions. The Depositary will not issue Receipts against other rights to
receive Shares unless (i) such Receipts are fully collateralized (marked to
market daily) with cash or U.S. government securities until such Shares are
deposited, (ii) the applicant for such Receipts represents in writing that
it
was the beneficial owner of such Shares before the issuance of Receipts, and
has
assigned all beneficial right, title and interest in such Shares to the
Depositary for the benefit of the Holders and will hold them for the account
of
the Depositary until delivery upon the Depositary's request and (iii) all such
Receipts represent not more than 20% of the Shares actually deposited. Such
collateral, but not the earnings thereon, shall be held for the benefit of
the
Holders. The Depositary may retain for its own account any compensation for
the
issuance of Receipts against such other rights to receive Shares, including
without limitation earnings on the collateral securing such rights. Without
limitation of the foregoing, the Depositary shall not knowingly accept for
deposit under this Deposit Agreement any Shares required to be registered
pursuant to the provisions of the Securities Act of 1933, unless a registration
statement under the Securities Act of 1933 is in effect as to such Shares.
The
Depositary will comply with written instructions of the Company to not accept
for deposit hereunder any Shares identified in such instructions at such times
and under such circumstances as may reasonably be specified in such instructions
in order to facilitate the Company's compliance with the securities laws of
the
United States and Canada.
-7-
SECTION
2.07. Substitution
of Receipts.
In case
any Receipt in certificated form shall be mutilated, destroyed, lost or stolen,
the Depositary shall issue a new Receipt through the
Direct Registration System or, if specifically requested or the Direct
Registration System is not otherwise available, execute and deliver a new
Receipt of like tenor, in either case in exchange and substitution for such
mutilated Receipt upon cancellation thereof, or in lieu of and in substitution
for such destroyed or lost or stolen Receipt, unless the Depositary has notice
that such Receipt has been acquired by a bona fide purchaser, upon the Holder
thereof filing with the Depositary (a) a request for such execution and delivery
and (b) a sufficient indemnity bond and satisfying any other reasonable
requirements imposed by the Depositary, including, without limitation, evidence
satisfactory to the Depositary of such destruction or loss or
theft
of such Receipt, the authenticity thereof and the Holder's ownership
thereof.
SECTION
2.08. Cancellation
and Destruction of Receipts.
All
Receipts surrendered to the Depositary shall be canceled by the Depositary.
The
Depositary is authorized to destroy Receipts in certificated form so
canceled.
SECTION
2.09. Maintenance
of Records.
The
Depositary agrees to maintain or cause its agents to maintain records of all
Receipts surrendered and Deposited Securities withdrawn under Section 2.05,
substitute Receipts delivered under Section 2.07, and of canceled or destroyed
Receipts under Section 2.08, in keeping with procedures ordinarily followed
by
stock transfer agents located in The City of New York.
ARTICLE
III
Certain
Obligations of Holders
SECTION
3.01. Information.
Any
person presenting Shares for deposit or any Holder of a Receipt may be required
from time to time to file with the Depositary or the Custodian such proof as
to
citizenship, residence, exchange control approval, legal or beneficial ownership
of Receipts, Deposited Securities or other securities, compliance with all
applicable laws and regulations, all applicable provisions of or governing
Deposited Securities, and the terms of this Deposit Agreement, or other
information, and to execute and deliver to the Depositary or the Custodian
such
certificates, including such representations and warranties, as the Depositary
may deem necessary or proper or as the Company may require by written request
to
the Depositary or the Custodian. The Depositary may withhold the delivery or
registration of transfer of any Receipt or any distribution on any Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt until the foregoing is accomplished to the Company's and the
Depositary's satisfaction.
SECTION
3.02. Liability
of Holder for Taxes.
If any
tax or other governmental charge shall become payable by or on behalf of the
Custodian or the Depositary with respect to any Receipt or any Deposited
Securities represented by the American Depositary Shares evidenced by such
Receipt, such tax or other governmental charge shall be payable by the Holder
of
such Receipt, who shall pay the amount thereof to the Depositary. The Depositary
may refuse to effect registration of transfer of such Receipt or any split-up
or
combination thereof or any withdrawal of such Deposited Securities until such
payment is made, and may withhold
or deduct from any distributions on such Deposited Securities or may sell for
the account of the Holder thereof any part or all of such Deposited Securities
(after attempting by reasonable means to notify such Holder prior to such sale),
and may apply such cash or the proceeds of any such sale in payment of such
tax
or other governmental charge, the Holder of such Receipt remaining liable for
any deficiency.
-8-
SECTION
3.03. Warranties
on Deposit of Shares.
Every
person depositing Shares under this Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor are validly
issued and outstanding, fully paid, nonassessable and free of preemptive rights,
and that the person making such deposit is duly authorized so to do and that
such Shares (A) are not "restricted securities" as such term is defined in
Rule
144 under the Securities Act of 1933 unless at the time of deposit they may
be
freely transferred in accordance with Rule 144(k) and may otherwise be offered
and sold freely in the United States or (B) or are offered or sold in
transactions registered under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and the execution and
delivery of Receipts therefor.
SECTION
3.04. Disclosure
of Interests.
To the
extent that provisions of or governing any Deposited Securities may require
the
disclosure of beneficial or other ownership of Deposited Securities, other
Shares and other securities to the Company and may provide for blocking transfer
and voting or other rights to enforce such disclosure or limit such ownership,
the Depositary shall use its reasonable efforts to comply with Company
instructions as to Receipts in respect of any such enforcement or limitation
and
Holders shall comply with all such disclosure requirements and ownership
limitations and shall cooperate with the Depositary's compliance with such
Company instructions.
ARTICLE
IV
Deposited
Securities
SECTION
4.01. Cash
Distributions.
Whenever the Depositary or the Custodian shall receive any cash dividend or
other cash distribution upon any Deposited Securities, the Depositary shall,
on
the payment date established by the Depositary, after any necessary conversion
of such distribution into U.S. dollars pursuant to Section 4.05 and after fixing
a record date in respect thereof pursuant to Section 4.06, subject to this
Deposit Agreement, distribute the amount thus received, by checks drawn on
a
bank in the United States, to the Holders on such record date of Receipts
evidencing American Depositary Shares representing such Deposited Securities,
in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by each of them respectively; provided
that the
Depositary shall make appropriate adjustments in the amounts so distributed
in
respect of (a) any of such Deposited Securities being not entitled, by reason
of
its date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i) required to be withheld by the Company,
the
Custodian or the Depositary from any such distribution, including amounts on
account of taxes, or (ii) charged by the Depositary in connection with the
conversion
of foreign currency into U.S. dollars pursuant to Section 4.05. The Depositary
shall distribute only such amount as can be distributed without distributing
to
any Holder a fraction of one cent. Fractional cents will be withheld without
liability and dealt with by the Depositary in accordance with its then current
practices.
Payment
dates established at the earliest practicable date by the Depositary under
this
Deposit Agreement shall be established in accordance with then current market
practice.
-9-
SECTION
4.02. Share
Distributions.
If any
distribution upon any Deposited Securities consists of a dividend in, or free
distribution of, Shares, the Depositary may or shall, if the Company shall
so
request, subject to this Deposit Agreement, on the payment date established
by
the Depositary, distribute to the Holders on a record date fixed pursuant to
Section 4.06 of Receipts evidencing American Depositary Shares representing
such
Deposited Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively,
additional Receipts for an aggregate number of American Depositary Shares
representing the number of Shares received as such dividend or free
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in the case of any such distribution, the Depositary shall sell the
amount of Shares represented by the aggregate of such fractions and distribute
the net proceeds of such sale as in the case of a distribution received in
cash
pursuant to Section 4.01. If additional Receipts are not so distributed, each
American Depositary Share shall thenceforth also represent its proportionate
interest in the additional Shares so distributed upon such Deposited
Securities.
SECTION
4.03. Rights
Distributions.
If the
Company shall offer or cause to be offered to the holders of any Deposited
Securities any rights to subscribe for additional Shares or any rights of any
nature, the Depositary, after consultation with the Company to the extent
practicable, shall have discretion as to the procedure to be followed in making
such rights available to the Holders or in disposing of such rights and
distributing the net proceeds thereof as in the case of a distribution received
in cash pursuant to Section 4.01 or, if by the terms of the rights offering
or
by reason of applicable law the Depositary may neither make such rights
available to the Holders nor dispose of such rights and distribute the net
proceeds thereof, in allowing the rights to lapse; provided
that the
Depositary shall, if requested by the Company, subject to this Deposit
Agreement, if at the time of the offering of any such rights the Depositary
determines that it is lawful and feasible to do so (a) distribute such rights
by
means of warrants or otherwise in such form as the Depositary may determine
to
the Holders on a record date fixed pursuant to Section 4.06 of Receipts
evidencing American Depositary Shares representing such Deposited Securities,
in
proportion to the number of American Depositary Shares representing such
Deposited Securities held by each of them respectively, or employ such other
method as it may deem feasible in order to facilitate the exercise, sale or
transfer of rights by such Holders, or (b) sell such rights at public or private
sale, at such place or places and upon such terms as it may deem proper, and
allocate the proceeds of such sales for account of the Holders otherwise
entitled to such rights, upon an averaged or other practicable basis without
regard to any distinctions among such Holders because of exchange restrictions,
or the date of delivery of any Receipt or Receipts, or otherwise, and distribute
the net proceeds so allocated to the extent practicable as in the case of a
distribution received in cash pursuant to Section
4.01. The Depositary will not offer such rights to Holders having an address
in
the United States, unless the Company furnishes to the Depositary (i) evidence
that a registration statement under the Securities Act of 1933 covering such
offering is in effect or (ii) an opinion of counsel for the Company in the
United States satisfactory to the Depositary to the effect that such offering
does not require registration under the Securities Act of 1933. If any filings,
receipts, orders, approvals or consents under applicable securities legislation
of any Province of Canada are required with respect to the securities to which
any rights relate in order for the Company to offer such rights to Holders
and
sell the securities represented by such rights, the Depositary will not offer
such rights to Holders having an address in any such Province of Canada unless
and until the Company notifies the Depositary that such filings have been made
or such receipts, orders, approvals or consents have been obtained.
-10-
SECTION
4.04. Other Distributions.
Whenever the Depositary or the Custodian shall receive any distribution other
than cash, Shares or rights upon any Deposited Securities, subject to this
Deposit Agreement, the Depositary shall, on the payment date established by
the
Depositary, cause securities or property to be distributed to the Holders on
a
record date fixed pursuant to Section 4.06 of Receipts evidencing American
Depositary Shares representing such Deposited Securities, in proportion to
the
number of American Depositary Shares representing such Deposited Securities
held
by each of them respectively, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution; provided
that if
in the opinion of the Depositary such distribution cannot be made
proportionately among the Holders entitled thereto, or if for any other reason
(including any tax withholding or securities laws requirement) the Depositary
deems such distribution not to be feasible, the Depositary may adopt such method
as it may deem equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, and the distribution by the
Depositary to the Holders of the net proceeds of any such sale as in the case
of
a distribution received in cash pursuant to Section 4.01.
SECTION
4.05. Conversion
of Foreign Currency.
Whenever the Depositary or the Custodian shall receive foreign currency, as
a
cash dividend or other distribution or as the net proceeds from the sale of
securities, property or rights, which, in the judgment of the Depositary can
then be converted on a reasonable basis into U.S. dollars which can then be
transferred to the United States, the Depositary shall convert or cause to
be
converted, by sale or in any other manner that it may determine, such foreign
currency into U.S. dollars and shall transfer the resulting U.S. dollars (net
of
its expenses in effecting such conversion) to the United States. Such
U.S. dollars
shall be distributed to the Holders entitled thereto or, if the Depositary
shall
have distributed any warrants or other instruments that entitle the holders
thereof to such U.S. dollars, then to the holders of such warrants or
instruments, as applicable, upon surrender thereof for cancellation. Such
distribution may be made upon an averaged or other practicable basis without
regard to any distinctions among Holders on account of exchange restrictions
or
otherwise. If such conversion or distribution can be effected only with the
approval or license of any government or agency thereof, the Depositary shall
file such application for approval or license, if any, as it may deem desirable.
If at any time the Depositary
shall determine that in its judgment any foreign currency received by the
Depositary
is not convertible on a reasonable basis into U.S. dollars transferable to
the
United States, or if any approval or license of any governmental authority
or
agency thereof that is required for such conversion is denied or in the opinion
of the Depositary is not obtainable at a reasonable cost or within a reasonable
period, the Depositary shall in its discretion, but subject to applicable laws
and regulations, either distribute the foreign currency (or an appropriate
document evidencing the right to receive such foreign currency) to, or hold
such
foreign currency (without liability for interest thereon) for the respective
accounts of, the Holders entitled to receive the same. If any such conversion
of
foreign currency, in whole or in part, can be effected for distribution to
some
but not all of the Holders entitled thereto, the Depositary may in its
discretion make such conversion and distribution in U.S. dollars to the extent
permissible to the Holders entitled thereto and may distribute the balance
of
the foreign currency received by the Depositary to, or hold such balance
(without liability for interest thereon) for the respective accounts of, the
Holders entitled thereto for whom such conversion and distribution is not
practicable.
-11-
SECTION
4.06. Fixing
of Record Date.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for herein
as
well as for the determination of the Holders who shall be entitled to receive
any distribution on or in respect of Deposited Securities, to give instructions
for the exercise of any voting rights, to receive any notice or to act in
respect of other matters and only such Holders shall be so entitled or
obligated. Subject to this Deposit Agreement, only such Holders at the close
of
business on such record date shall be entitled to receive any such distribution
or proceeds, to give such voting instructions, to receive such notice or
solicitation, to act in respect of any such other matter or be so
obligated.
SECTION
4.07. Voting
of Deposited Securities.
Under
the Company's by-laws, Holders of Deposited Securities are entitled to vote
only
in limited circumstances. They may elect two of the Company's directors, and
corresponding alternate directors. In addition, the following matters require
the vote of holders of a majority of all the capital stock, including the
Deposited Securities, as well as of holders of a majority of the Company's
Series AA Shares, without par value, and Series A Shares, without par value,
voting together: (i) the extension of the Company’s term of duration; (ii)
transformation of the Company from one type of company to another; (iii) any
merger in which the Company is not the surviving entity or any merger with
an
entity whose principal corporate purposes are different from those of the
Company; (iv) removal of the Company's shares from listing on the Mexican Stock
Exchange or any foreign stock exchange; and (v) actions that would prejudice
the
rights of the holders of the Deposited Securities. Except as described above
and
for a class vote required in respect of the matters specified in clause (v)
in
certain circumstances under Mexican law, Holders of Deposited Securities have
no
voting rights. Holders of Deposited Securities are not entitled to attend or
to
address meetings of shareholders at which they are not entitled to
vote.
-12-
As
soon
as practicable after receipt of notice of any meeting or solicitation of
consents or proxies of holders of Shares or other Deposited Securities, the
Depositary shall (to the extent permitted by law) mail to Holders a notice
containing (a) such information as is contained in such notice (or if requested
by the Company, a summary of such information provided by the Company), (b)
a
statement that each Holder at the close of business on a specified record date
will be entitled, subject to the provisions of or governing Deposited
Securities, to instruct the Depositary as to the exercise of the voting rights,
if any, pertaining to the Deposited Securities represented by the American
Depositary Shares evidenced by such Holders' Receipts, and (c) a statement
as to
the manner in which such instructions may be given, including an express
indication that instructions may be given (or be deemed given in accordance
with
the last sentence of this Section if no instruction is received) to the
Depositary to give a discretionary proxy to a person designated by the Company.
Upon the written request of a Holder on such record date, received on or before
the date established by the Depositary for such purpose, the Depositary shall
endeavor insofar as practicable and permitted under the provisions of or
governing Deposited Securities to vote or cause to be voted (or to grant a
discretionary proxy to a person designated by the Company to vote) the Deposited
Securities represented by the American Depositary Shares evidenced by such
Holder's Receipts in accordance with any instructions set forth in such request.
The Depositary shall not itself exercise any voting discretion over any
Deposited Securities. If no instructions are received by the Depositary from
any
Holder with respect to any of the Deposited Securities represented by the
American Depositary Shares evidenced by such Holder's Receipts on or before
the
date established by the Depositary for such purpose, the Depositary shall deem
such Holder to have instructed the Depositary to give a discretionary proxy
to a
person designated by the Company with respect to such Deposited Securities
and
the Depositary shall give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided
that no
such instruction shall be deemed given and no such discretionary proxy shall
be
given with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to provide such information promptly in writing) that
(x) the Company does not wish such proxy given, (y) substantial opposition
exists or (z) materially and adversely affects the rights of holders of
Shares.
Subject
to the rules of any securities exchange on which American Depositary Shares
or
the Deposited Securities represented thereby are listed, at least two Business
Days prior to the date of such meeting, the Depositary shall if requested by
the
Company deliver to the Company, to the attention of its Secretary, copies of
all
instructions received from Holders in accordance with which the Depositary
will
vote, or cause to be voted, the Deposited Securities represented by the American
Depositary Shares evidenced by such Receipts at such meeting. Delivery of
instructions will be made at the expense of the Company provided that payment
of
such expense shall not be a condition precedent to the obligations of the
Depositary under this Section.
There
is
no guarantee that Holders generally or any Holder in particular will receive
the
notice described above with sufficient time to enable such Holder to return
any
voting instructions to the Depositary in a timely manner.
-13-
SECTION
4.08. Changes
Affecting Deposited Securities.
Subject
to other provisions hereof, the Depositary may, in its discretion, amend the
terms of the American Depositary Shares or distribute additional or amended
American Depositary Shares (with or without calling any American Depositary
Shares for exchange) or cash, securities or property on the record date set
by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited Securities,
any issuance under Section 4.02, Section 4.03 or Section 4.04 hereof not
distributed to Holders or any cash, securities or property available to the
Depositary in respect of Deposited Securities from (and the Depositary is hereby
authorized to surrender any Deposited Securities to any person and, irrespective
of whether such Deposited Securities are surrendered or otherwise cancelled
by
operation of law, rule, regulation or otherwise, to sell by public or private
sale any property received in connection with) any recapitalization,
reorganization, merger, consolidation, liquidation, receivership, bankruptcy
or
sale of all or substantially all the assets of the Company, and to the extent
the Depositary does not so amend the Receipts or make a distribution to Holders
to reflect any of the foregoing, or the net proceeds thereof, whatever cash,
securities or property results from any of the foregoing shall constitute
Deposited Securities and each American Depositary Share shall automatically
represent its pro rata interest in the Deposited Securities as then constituted.
Notwithstanding anything to the contrary contained in this provision, amendments
to the Deposit Agreement must comply with Section 6.01 hereof.
SECTION
4.09. Withholding.
In
connection with any distribution to Holders, the Company will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld by the Company and owing to such authority or agency by the Company;
and the Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld and owing
to
such authority or agency by the Depositary or the Custodian. The Depositary
will
forward to the Company such information from its records as the Company may
reasonably request to enable the company to file necessary reports with
governmental authorities or agencies, and either the Company or the Depositary
may file any such reports necessary to obtain benefits under any applicable
tax
treaties for Holders. If the Depositary determines that any distribution in
property other than cash (including Shares or rights) on Deposited Securities
is
subject to any tax that the Depositary or the Custodian is obligated to
withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale, and the Depositary
shall distribute the net proceeds of any such sale or the balance of any such
property after deduction of such taxes to the Holders entitled thereto as in
the
case of a distribution pursuant to Section 4.01, 4.02, 4.03 or 4.04. Each Holder
of a Receipt or an interest therein agrees to indemnify the Depositary, the
Company, the Custodian and any of their respective directors, employees, agents
and affiliates against, and hold each of them harmless from, any claims by
any
governmental authority with respect to taxes, additions to tax, penalties or
interest arising out of any refund of taxes, reduced rate of withholding at
source or other tax benefit obtained.
-14-
ARTICLE
V
The
Depositary and the Company
SECTION
5.01. Maintenance
of Depositary’s Office and Register;
Certain Agents of the Depositary; Lists of Holders.
(a)
Depositary's
Office.
The
Depositary or its agent shall maintain facilities for the delivery and surrender
of Shares, the execution and delivery, registration, registration of transfer,
combination and split-up of Receipts and the withdrawal of Deposited Securities
all in accordance with the provisions of this Deposit Agreement.
(b)
The
Register.
The
Depositary or its agent shall keep a Receipt Register for the registration
of
Receipts and transfers of Receipts that at all reasonable times shall be open
for inspection by the Holders and the Company; provided
that
such inspection shall not be for the purpose of communicating with Holders
in
the interest of a business or object other than the business of the Company
or a
matter related to this Deposit Agreement or the Receipts.
(c)
Receipt
Registrars and Co-Transfer Agents.
If any
Receipts or the American Depositary Shares evidenced thereby are listed on
one
or more stock exchanges in the United States, the Depositary or its agent shall
act as Receipt registrar or, upon the written request or with the written
approval of the Company, appoint a Receipt registrar or one or more
co-registrars to register Receipts and transfers combinations and split-ups
of
Receipts and to countersign Receipts in accordance with any requirements of
such
exchange or exchanges and with the terms of any such appointment. Such Receipt
registrar or co-registrars may be removed and a substitute or substitutes
appointed by the Depositary upon the written request or with the written
approval of the Company. The Depositary, upon the written request or with the
written approval of the Company, may appoint one or more co-transfer agents
for
the purpose of effecting transfers, combinations and split-ups of Receipts
at
designated transfer offices on behalf of the Depositary. Such co-transfer agents
may be removed and substitutes appointed by the Depositary upon the written
request or with the written approval of the Company. Each Receipt registrar,
co-registrar or co-transfer agent appointed under this Section 5.01 (other
than
JPMorgan Chase Bank, N.A.) shall give notice in writing to the Company and
the
Depositary accepting such appointment and agreeing to be bound by the applicable
terms of this Deposit Agreement.
(d)
Lists
of Holders.
At the
expense of the Company, the Company shall have the right to inspect transfer
and
registration records of the Depositary or its agent, take copies thereof and
require the Depositary or its agent, the Receipt registrar and any co-transfer
agents or co-registrars to supply copies of such portions of such records as
the
Company may request. The Depositary or its agent shall furnish to the Company,
promptly upon the written request of the Company, a list of the names, addresses
and holdings of American Depositary Shares by all Holders as of a recent date
within seven days of the date of such request.
-15-
(e)
Depositary's
Agent.
The
Depositary may perform its obligations under this Section 5.01 through any
agent
appointed by it, provided that the Depositary shall notify the Company of such
appointment and shall remain responsible for the performance of such obligations
as if no agent were appointed.
SECTION
5.02. Prevention
or Delay in Performance.
Neither
the Depositary, its agents nor the Company shall incur any liability if, by
reason of any present or future law, rule, or regulation of the United States,
the United Mexican States or any other jurisdiction or of any governmental
or
regulatory authority or any securities exchange or market or automated quotation
system, the provisions of or governing any Deposited Securities, any present
or
future provision of the Company's charter, any act of God, war, terrorism or
other circumstances beyond its control, the Depositary, its agents or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty on account of, or delayed in, doing or performing any act
or
thing which by the terms of this Deposit Agreement it is provided shall be
done
or performed; nor shall the Depositary, its agents or the Company incur any
liability to any Holder or other person by reason of any nonperformance or
delay, caused as aforesaid, in performance of any act or thing that by the
terms
of this Deposit Agreement it is provided shall or may be done or performed,
or
by reason of any exercise of, or failure to exercise, any discretion provided
for in this Deposit Agreement.
SECTION
5.03. Obligations
Limited.
The
Company assumes no obligation and shall be subject to no liability under this
Deposit Agreement or the Receipts to Holders or other persons, except to perform
such obligations as are specifically set forth and undertaken by it to perform
in this Deposit Agreement without gross negligence or bad faith. Each of the
Depositary and its agents assumes no obligation and shall be subject to no
liability under this Deposit Agreement or the Receipts to Holders or other
persons, except to perform such obligations as are specifically set forth and
undertaken by it to perform in this Deposit Agreement without gross negligence
or bad faith. Without limitation of the preceding sentence, none of the
Depositary or its agents shall be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or the Receipts. Without limitation of the preceding sentences,
the
Company shall not be under any obligation to appear in, prosecute or defend
any
action, suit or other proceeding in respect of any Deposited Securities or
the
Receipts that in its opinion may involve it in expense or liability, unless
indemnity satisfactory to it in its sole discretion against all expense and
liability be furnished as often as may be required. Neither the Depositary,
nor
its agents nor the Company shall be liable for any action or inaction by it
in
reliance upon the advice of or information from legal counsel, accountants,
any
person presenting Shares for deposit, any Holder, or any other person believed
by it to be competent to give such advice or information. The Depositary, its
agents and the Company may rely and shall be protected in acting upon any
written notice, request, direction or other document believed by it to be
genuine and to have been signed or presented by the proper party or parties.
The
Depositary and its agents shall not be responsible for any failure to carry
out
any instructions to vote any of the Deposited Securities, for the manner in
which any such vote is cast or for the effect of any such vote. Notwithstanding
anything to the contrary set forth in the Deposit Agreement or a Receipt, the
Depositary
and its agents may fully respond to any and all demands or requests for
information maintained by or on its behalf in connection with the Deposit
Agreement, any Holder or Holders, any Receipt or Receipts or otherwise related
hereto to the extent such information is requested or required by or pursuant
to
any lawful authority, including without limitation laws, rules, regulations,
administrative or judicial process, banking, securities or other regulators.
The
Company has agreed to indemnify the Depositary and its agents under certain
circumstances and the Depositary has agreed to indemnify the Company under
certain circumstances. Neither the Company nor the Depositary nor any of their
respective agents shall be liable to Holders or beneficial owners of interests
American Depositary Shares for any indirect, special, punitive or consequential
damages. The Depositary and its agents may own and deal in any class of
securities of the Company and its affiliates and in Receipts. No disclaimer
of
liability under the Securities Act of 1933 is intended by any provision of
this
Deposit Agreement.
-16-
SECTION
5.04. Resignation
and Removal of the Depositary;
Appointment of Successor Depositary.
The
Depositary may at any time resign as Depositary hereunder by written notice
of
its election so to do delivered to the Company or be removed as Depositary
by
the Company by written notice of such removal delivered to the Depositary,
such
resignation or removal to take effect upon the appointment of and acceptance
by
a successor depositary as hereinafter provided. In case at any time the
Depositary acting hereunder shall resign or be removed, the Company shall use
reasonable 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 execute and deliver to its predecessor
and to the Company an instrument in writing accepting its appointment hereunder,
and thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of
its
predecessor; but such predecessor nevertheless upon payment of all sums due
it
and on the written request of the Company shall execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, and such predecessor shall thereupon duly assign,
transfer and deliver all right, title and interest in the Deposited Securities
to such successor and shall deliver to such successor a list of the Holders.
Any
such successor depositary shall promptly mail notice of its appointment to
the
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.
SECTION
5.05. The
Custodian.
The
Depositary, upon the written request of the Company, will appoint or replace
one
or more agents to act for the Depositary as Custodian hereunder unless the
Depositary reasonably believes that the proposed Custodian is not, or will
not
be, able to provide service satisfactory to the Depositary, to be based upon,
without limitation, consideration of operational systems, security procedures,
expenses and credit standing, in which case the Depositary and the Company
will
use their reasonable best efforts to resolve any service issue. In addition,
the
Depositary, upon the written approval of the Company (which shall not be
unreasonably withheld), may from time to time appoint one or more agents to
act
for it as Custodian hereunder. Each Custodian so appointed (other than
JPMorgan
Chase Bank, N.A.) shall give notice in writing to the Company and the Depositary
accepting such appointment and agreeing to be bound by the applicable terms
hereof. Any Custodian in acting hereunder shall be subject at all times and
in
all respects to the directions of the Depositary and shall be responsible solely
to it. Any Custodian may resign from its duties hereunder by notice of such
resignation delivered to the Depositary at least 30 days prior to the date
on
which such resignation is to become effective. The Depositary may discharge
any
Custodian at any time upon notice to the Custodian being discharged with the
written approval of the Company (which shall not be unreasonably withheld).
Any
Custodian ceasing to act hereunder as Custodian shall deliver all Deposited
Securities held by it to a Custodian continuing to act upon the instruction
of
the Depositary. The Depositary shall give notice in writing to all Holders
of
the name and location of the appointment of any Custodian not named in the
Receipts. Upon the appointment of any successor depositary hereunder, any
Custodian then acting hereunder shall forthwith become, without any further
act
or writing, the agent hereunder of such successor depositary and the appointment
of such successor depositary shall in no way impair the authority of any
Custodian hereunder; but the successor depositary so appointed shall,
nevertheless, on the written request of any Custodian, execute and deliver
to
such Custodian all such instruments as may be proper to give to the Custodian
full and complete power and authority as agent hereunder of such successor
depositary.
-17-
SECTION
5.06. Notices
and Reports to Holders.
On or
before the first date on which the Company gives notice, by publication or
otherwise, of any meeting of holders of Shares or other Deposited Securities,
or
of any adjourned meeting of such holders, or of the taking of any action by
such
holders other than at a meeting, the Company shall transmit to the Custodian
a
an English language version of the notice thereof in the form given or to be
given to holders of Shares or other Deposited Securities. The Company will
also
promptly transmit to the Custodian English language versions of any report
and
other communications that are made generally available by the Company to holders
of its Shares or other Deposited Securities. The Depositary will, at the
Company's expense, arrange for the prompt transmittal by the Custodian to the
Depositary of such notices, reports and other communications and arrange for
the
mailing, at the Company's expense, of copies thereof (or if requested by the
Company, a summary of any such notice provided by the Company) to all Holders
or, at the request of the Company, make such notices, reports and other
communications available to all Holders on a basis similar to that for holders
of Shares or other Deposited Securities, or on such other basis as the Company
may advise the Depositary may be required by any applicable law, regulation
or
stock exchange requirement. The Company has delivered to the Depositary and
the
Custodian a copy of the provisions of or governing the Shares and any other
Deposited Securities issued by the Company or any affiliate of the Company,
and
promptly upon any amendment thereto or change therein, the Company shall deliver
to the Depositary and the Custodian a copy of such provisions as so amended
or
changed. The Depositary may rely upon such copy for all purposes of this
Agreement. The Depositary will, at the expense of the Company, make such copy
and such notices, reports and other communications available for inspection
by
Holders at the Depositary's Office, at the office of the Custodian and at any
other designated transfer offices.
-18-
SECTION
5.07. Issuance
of Additional Shares, etc.
Neither
the Company nor any company controlling, controlled by or under common control
with the Company shall issue additional Shares, rights to subscribe for Shares,
securities convertible into or exchangeable for Shares, or rights to subscribe
for any such securities or shall deposit any Shares under this Deposit
Agreement, except under circumstances complying in all respects with the
Securities Act of 1933. The Depositary will use reasonable efforts to comply
with reasonable written instructions of the Company not to accept for deposit
hereunder any Shares identified in such instructions at such times and under
such circumstances as may be specified in such instructions in order to
facilitate the Company's compliance with securities laws in the United
States.
SECTION
5.08. Indemnification.
The
Company shall indemnify, defend and save harmless each of the Depositary and
its
agents against any loss, liability or expense (including reasonable fees and
expenses of counsel) which may arise out of acts performed or omitted, in
connection with the provisions of this Deposit Agreement and of the Receipts,
as
the same may be amended, modified or supplemented from time to time in
accordance herewith (i) by either the Depositary or its agents or their
respective directors, employees, agents and affiliates, except, subject to
the
penultimate paragraph of this Section 5.08, for any liability or expense
directly arising out of the negligence or bad faith of the Depositary, or (ii)
by the Company or any of its directors, employees, agents or
affiliates.
The
indemnities set forth in the preceding paragraph shall also apply to any
liability or expense which may arise out of any misstatement or alleged
misstatement or omission or alleged omission in any registration statement,
proxy statement, prospectus (or placement memorandum), or preliminary prospectus
(or preliminary placement memorandum) relating to the offer or sale of American
Depositary Shares, except to the extent any such liability or expense arises
out
of (i) information relating to the Depositary or its agents (other than the
Company), as applicable, furnished in writing by the Depositary expressly for
use in any of the foregoing documents or (ii) if such information is provided,
the failure to state a material fact necessary to make the information provided
not misleading.
Except
as
provided in the next succeeding paragraph, the Depositary shall indemnify,
defend and save harmless the Company against any loss, liability or expense
(including reasonable fees and expenses of counsel) incurred by the Company
in
respect of this Deposit Agreement to the extent such loss, liability or expense
is due to the negligence or bad faith of the Depositary.
Notwithstanding
any other provision of this Deposit Agreement or the Receipts to the contrary,
neither the Company nor the Depositary, nor any of their agents, shall be liable
to the other for any indirect, special, punitive or consequential damages
(collectively "Special Damages") except (i) to the extent such Special Damages
arise from the gross negligence or willful misconduct of the party from whom
indemnification is sought or (ii) to the extent Special Damages arise from
or
out of a claim brought by a third party (including, without limitation, Holders)
against the Depositary or its agents, except to the extent such Special
Damages
arise out of the gross negligence or willful misconduct of the party seeking
indemnification hereunder.
-19-
The
obligations set forth in this Section 5.08 shall survive the termination of
this
Deposit Agreement and the succession or substitution of any indemnified
person.
SECTION
5.09. Charges
of Depositary.
For the
benefit of the Depositary and/or the Company, the Depositary may collect from
(i) each person to whom American Depositary Shares are issued, including,
without limitation, issuances against deposits of Shares, issuances under
Section 4.02, 4.03 and/or 4.04 hereof, issuances pursuant to a stock dividend
or
stock split declared by the Company, or issuances pursuant to a merger, exchange
of securities or any other transaction or event affecting the American
Depositary Shares or the Deposited Securities, and (ii) each person surrendering
American Depositary Shares for withdrawal of Deposited Securities or whose
American Depositary Shares are cancelled or reduced for any other reason, U.S.
$5.00 for each 100 American Depositary Shares (or portion thereof) issued,
delivered, reduced, cancelled or surrendered (as the case may be). The
Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share Distributions, Rights and Other
Distributions prior to such deposit to pay such charge. The following additional
charges shall be incurred by the Holders, by any party depositing or withdrawing
Shares or by any party surrendering American Depositary Shares, to whom American
Depositary Shares are issued (including, without limitation, issuance pursuant
to a stock dividend or stock split declared by the Company or an exchange of
stock regarding the American Depositary Shares or the Deposited Securities
or a
distribution of American Depositary Shares under Section 4.02, 4.03 or 4.04),
whichever is applicable (i) a fee of $.02 or less per American Depositary Share
(or portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement, (ii) to the extent not prohibited by the rules of the primary stock
exchange upon which the American Depositary Shares are listed, a fee of $1.50
per Receipt or Receipts for transfers made hereunder, (iii) a fee for the
distribution or sale of securities under this Deposit Agreement, such fee being
in an amount equal to the fee for the execution and delivery of American
Depositary Shares referred to above which would have been charged as a result
of
the deposit of such securities (for purposes hereof treating all such securities
as if they were Shares) but which securities or the net cash proceeds from
the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
a
fee of up to US$0.02 per American Depositary Share (or portion thereof) per
year
for the services performed by the Depositary in administering the Receipts
(which fee shall be assessed against Holders as of the record date or dates
set
by the Depositary not more than once each calendar year and shall be payable
at
the sole discretion of the Depositary by billing such Holders or by deducting
such charge from one or more cash dividends or other cash distributions), and
(v) such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian)
pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, Receipts or Deposited Securities
(which are payable by such persons or Holders), (iii) transfer or registration
fees for the registration or transfer of Deposited Securities on any applicable
register in connection with the deposit or withdrawal of Deposited Securities
(which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary’s agents, including, without limitation, the custodian, or
the agents of the Depositary’s agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the Depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed
by
agreement between the Company and the Depositary.
-20-
SECTION
5.10. Statutory
Reports.
The
Depositary shall make available for inspection by Holders at the Depositary's
Office and at any other designated transfer offices any reports and
communications received from the Company which are both (a) received by the
Depositary, the Custodian or the nominee of either as the holder of Deposited
Securities and (b) made generally available to the holders of Deposited
Securities by the Company. In connection with any registration statement
relating to the Receipts, the Company and the Depositary shall each furnish
to
the other and to the Commission such information as shall be required to make
such filings or comply with such undertakings.
SECTION
5.11. Available
Information to the Commission.
The
Company furnishes the Commission with certain public reports and documents
required by foreign law or otherwise under the Securities Exchange Act of 1934.
Such reports and documents, and all notices, reports and communications referred
to in Sections 5.06 and 5.10, shall be in English to the extent required under
the Securities Exchange Act of 1934, or to the extent any such notice, report
or
communication has been translated by the Depositary.
ARTICLE
VI
Amendment
and Termination
SECTION
6.01. Amendment. The Receipts and any provisions of this Deposit Agreement
may
at any time and from time to time be amended by agreement between the Company
and the Depositary in any respect. Any amendment that shall impose or increase
any fees or charges (other than the fees and charges referred to in clauses
(i)
through (v) of the penultimate
sentence of Section 5.09 hereof) or that shall otherwise prejudice any
substantial existing right of Holders, shall not, however, become effective
as
to outstanding Receipts until the expiration of 30 days after notice of such
amendment shall have been given to the Holders. Every Holder at the expiration
of 30 days after such notice shall be deemed by holding such Receipt to consent
and agree to such amendment and to be bound by the Deposit Agreement or the
Receipts as amended thereby. In no event shall any amendment impair the right
of
the Holder of any Receipt to surrender such Receipt and receive therefor the
Deposited Securities represented thereby, except in order to comply with
mandatory provisions of applicable law. Any amendments or supplements which
(i)
are reasonably necessary (as agreed by the Company and the Depositary) in order
for (a) the American Depositary Shares to be registered on Form F-6 under the
Securities Act of 1933 or (b) the American Depositary Shares or Shares to be
traded solely in electronic book-entry form and (ii) do not in either such
case
impose or increase any fees or charges to be borne by Holders, shall be deemed
not to prejudice any substantial rights of Holders. Notwithstanding the
foregoing, if any governmental body or regulatory body should adopt new laws,
rules or regulations which would require amendment or supplement of the Deposit
Agreement or the form of Receipt to ensure compliance therewith, the Company
and
the Depositary may amend or supplement the Deposit Agreement and the Receipt
at
any time in accordance with such changed laws, rules or regulations. Such
amendment or supplement to the Deposit Agreement in such circumstances may
become effective before a notice of such amendment or supplement is given to
Holders or within any other period of time as required for
compliance.
-21-
SECTION
6.02. Termination.
The
Depositary shall at any time at the direction of the Company terminate this
Deposit Agreement by giving notice of such termination to the Holders at least
30 days prior to the date fixed in such notice for such termination. The
Depositary may terminate this Deposit Agreement, upon the notice set forth
in
the preceding sentence of this Section 6.02, at any time after 90 days after
the
Depositary shall have delivered to the Company its written resignation,
Provided
that no
successor depositary shall have been appointed and accepted its appointment
as
provided in Section 5.04 before the end of such 90 days. After the date so
fixed
for termination, the Depositary and its agents shall perform no further acts
under this Deposit Agreement, except to advise Holders of such termination,
to
receive and hold distributions on Deposited Securities (or sell property or
rights or convert Deposited Securities into cash as provided in this Deposit
Agreement) and to deliver Deposited Securities in exchange for Receipts
surrendered to the Depositary. As soon as practicable after the expiration
of
six months from the date so fixed for termination, the Depositary shall sell
the
Deposited Securities and may thereafter (so long as it
may
lawfully do so) hold in a segregated account the net proceeds of any such sale,
together with any other cash then held by it hereunder,.without liability for
interest, in trust for the pro
rata
benefit of the Holders of Receipts that have not theretofore been surrendered.
After making such sale, the Depositary shall be discharged from all obligations
in respect of the Receipts and this Deposit Agreement, except to account for
such net proceeds and other cash. After the date so fixed for termination,
the
Company shall be discharged from all obligations under this Deposit Agreement
except for its obligations to the Depositary and its agents under Sections
5.08
and 5.09.
The
obligations of the Depositary under Section 5.08 shall survive the termination
of this Deposit Agreement.
-22-
ARTICLE
VII
Miscellaneous
SECTION
7.01. Counterparts.
This
Deposit Agreement may be executed in any number of counterparts, each of which
shall be deemed an original and all of such counterparts shall constitute one
and the same instrument. Copies of this Deposit Agreement shall be filed with
the Depositary and the Custodian and shall be open to inspection by any Holder
during business hours.
SECTION
7.02. No
Third Party Beneficiaries.
This
Deposit Agreement is for the exclusive benefit of the Company, the Depositary
and, to the extent contemplated hereby, the Holders, and their respective
successors hereunder, and shall not give any legal or equitable right, remedy
or
claim whatsoever to any other person.
SECTION
7.03. Severability.
In case
any one or more of the provisions contained in this Deposit Agreement or in
the
Receipts should be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein or therein shall in no way be affected, prejudiced or disturbed
thereby.
SECTION
7.04. Holders
Parties; Binding Effect.
The
Holders and owners of Receipts from time to time shall be parties to this
Deposit Agreement and shall be bound by all of the terms and conditions hereof
and of the Receipts by acceptance thereof.
SECTION
7.05. Notices. (a) To
the
Company.
Any and
all notices to be given to the Company shall be duly given if personally
delivered or sent by mail, first class airmail postage prepaid, or by cable,
telex or facsimile transmission in each case confirmed by letter, addressed
to
Telefonos de Mexico, S.A. de C.V., Parque Xxx 000, Xxxxxxx Xxxxxxxxxx, 00000
Xxxxxx, D.F., United Mexican States, Attention: Director, Finanza y
Administraciòn or any other address which the Company may specify in writing to
the Depositary.
(b)
To
the
Depositary.
Any and
all notices to be given to the Depositary shall be duly given if personally
delivered or sent by mail, first class airmail postage prepaid, or by cable,
telex or facsimile transmission in each case confirmed by letter, addressed
to
JPMorgan Chase Bank, N.A., 4 New York Plaza, 13th
Floor,
New York, New York 10004, Attention: ADR Administration, which is the location
of the Depositary's Office on the date of this Deposit Agreement, or any other
address which the Depositary may specify in writing to the Company.
(c)
To
the
Holders.
Any and
all notices to be given to any Holder shall
be
duly given if personally delivered or sent by mail, first class airmail postage
prepaid, or by cable, telex or facsimile transmission in each case confirmed
by
letter, addressed to such Holder at the address of such Holder as it appears
on
the transfer books for Receipts of the Depositary, or, if such Holder shall
have
filed with the Depositary a written request that notices intended for such
Holder be mailed to some other address, at the address designated in such
request.
-23-
(d)
General.
Notice
given as aforesaid, (i) to the Company or the Depositary, shall be deemed to
be
effected when received, and (ii) to a Holder by mail or by cable, telex or
facsimile transmission, shall be deemed to be effected at the time when a duly
addressed letter containing the same (or a confirmation thereof in the case
of a
cable, telex or facsimile transmission) is deposited, first class airmail
postage prepaid, in a post-office letter box. The Depositary or the Company
may
act upon any cable, telex or facsimile transmission received by it from the
other or from any Holder, notwithstanding that such cable, telex or facsimile
transmission shall not subsequently be confirmed as aforesaid.
SECTION
7.06. Governing
Law.
This
Deposit Agreement and the Receipts shall be interpreted and all rights hereunder
and thereunder and provisions hereof and thereof shall be governed by the laws
of the State of New York.
SECTION
7.07. Amendment
and Restatement of Old Deposit Agreement.
The
Deposit Agreement amends and restates the Old Deposit Agreement in its entirety
to consist exclusively of the Deposit Agreement, and each Old Receipt is hereby
deemed amended and restated to substantially conform to the form of Receipt
set
forth in Exhibit A annexed hereto, except that, to the extent any portion of
either such amendment and restatement would prejudice any substantial existing
right of owners of Old Receipts, such portion shall not become effective as
to
such owners until 30 days after such owners shall have received notice thereof,
such notice to be conclusively deemed given upon the mailing to such owners
of
notice of such amendment and restatement which notice contains a provision
whereby such owners can receive a copy of the form of Receipt.
-24-
IN
WITNESS WHEREOF, TELEFONOS DE MEXICO, S.A. DE C.V. and JPMORGAN CHASE BANK,
N.A.
have duly executed this Deposit Agreement as of the day and year first above
set
forth and all holders of Receipts shall become parties hereto upon acceptance
by
them of Receipts issued in accordance with the terms hereof.
|
TELEFONOS
DE MEXICO, S.A. DE C.V.
|
|
|
By________________________________
|
|
|
Title:
Chief Financial Officer
|
|
|
JPMORGAN
CHASE BANK, N.A.
|
|
|
By________________________________
|
|
|
Title:
|
-25-
EXHIBIT
A
TO
DEPOSIT
AGREEMENT
UNDER
MEXICAN LAW AND THE CONCESSION GRANTED TO TELEFONOS DE MEXICO, S.A. DE C.V.,
FOREIGN STATES, MEXICAN RADIO OR TELEVISION CONCESSIONAIRES AND PERSONS
PARTICIPATING IN RADIO BROADCASTING MAY NOT DIRECTLY OR INDIRECTLY OWN SHARES
OF
ANY SERIES OF CAPITAL STOCK
OF
TELEFONOS DE MEXICO, S.A. DE C.V.
[FORM
OF
FACE OF RECEIPT]
AMERICAN
DEPOSITARY RECEIPT
evidencing
AMERICAN
DEPOSITARY SHARES
representing
SERIES
L
SHARES
of
TELEFONOS
DE MEXICO, S.A. DE C.V.
Incorporated
under the
laws
of
the United Mexican States
No.
________________________
JPMORGAN
CHASE BANK, N.A., a national banking association organized under the laws of
the
United States, as depositary (the "Depositary"), hereby certifies that
__________________________________________is the owner of ______________
American Depositary Shares, representing deposited Series L Shares, without
par
value, including rights to receive such Series L Shares ("Shares,” provided that
Series L Shares of any subseries shall not be Shares hereunder until they are
entitled to the same rights, including with respect to dividends or other
distributions, as Shares constituting Deposited Securities, as such term is
hereinafter defined), of TELEFONOS DE MEXICO, S.A. DE C.V., a corporation
organized
under the laws of the United Mexican States (the "Company"). At the date hereof,
each American Depositary Share represents twenty Shares deposited under the
Deposit Agreement (hereinafter defined) at the Mexico City office of Banco
Inbursa, S.A., as Custodian (the "Custodian").
A-1
(1)
The
Deposit Agreement.
This
American Depositary Receipt is one of the receipts (the "Receipts") executed
and
delivered pursuant to the Amended and Restated Deposit Agreement dated as of
September , 2006 (as amended from time to time, the "Deposit
Agreement ") by and among the Company, the Depositary and all registered holders
(“Holders") from time to time of Receipts, each of whom by accepting a Receipt
becomes a party thereto, bound by all applicable terms and provisions thereof
and hereof. The Deposit Agreement sets forth the rights of Holders and the
rights and duties of the Depositary in respect of the Shares deposited
thereunder and any and all other securities, property and cash from time to
time
received in respect of such Shares and held thereunder (such Shares, securities,
property and cash collectively, the "Deposited Securities"). Copies of the
Deposit Agreement and of the Company's provisions of or governing Deposited
Securities are on file at the Depositary's Office, the office of the Custodian
and at any other designated transfer office. The statements made on the face
and
the reverse of this Receipt are summaries of certain provisions of the Deposit
Agreement and are qualified by and subject to the detailed provisions thereof.
The Depositary makes no representation or warranty as to the validity or worth
of the Deposited Securities.
(2)
Withdrawal
of Deposited Securities.
Upon
surrender of this Receipt and payment of the fee of the Depositary provided
for
in paragraph (8) of this Receipt at the Depositary's Office or at such other
offices as it may designate, subject to the Deposit Agreement and the provisions
of or governing the Deposited Securities, the Holder hereof is entitled to
the
delivery as promptly as practicable at the office of the Custodian to such
Holder or upon such Holder's order of the Deposited Securities at the time
represented by the American Depositary Shares evidenced by this Receipt. At
the
request, risk and expense of the Holder hereof, the Depositary may deliver
such
Deposited Securities at the Depositary's Office or at such other place as may
have been requested by the Holder. Delivery of Deposited Securities may be
made
by the delivery of certificates to the extent such Deposited Securities may
be
represented by certificates. Notwithstanding any other provision of the Deposit
Agreement or this Receipt, the Depositary may restrict the withdrawal of
Deposited Securities only for the reasons set forth in General Instruction
I.A.(l) to Form F-6 under the Securities Act of 1933.
(3)
Transfers,
Split-ups and Combinations.
This
Receipt is transferable on the register maintained by the Depositary by the
Holder hereof in person or by duly authorized attorney, upon surrender of this
Receipt at any designated transfer office properly endorsed or accompanied
by
proper instruments of transfer and duly stamped as may be required by applicable
law; provided
that the
Depositary may close the Receipt register at any time or from time to time
when
deemed expedient by it in connection with the performance of its duties under
the Deposit Agreement or at the request of the Company. This Receipt may be
split into other
Receipts or may be combined with other Receipts into one Receipt, evidencing
the
same aggregate number of American Depositary Shares as those evidenced by the
Receipt or Receipts surrendered.
A-2
(4)
Certain
Limitations.
Prior
to the execution and delivery, registration, registration of transfer, split-up
or combination of any Receipt, the delivery of any distribution in respect
thereof, or the withdrawal of any Deposited Securities, the Depositary, the
Company or the Custodian may require: (a) payment of (i) any stock transfer
or
other tax or other governmental charge with respect thereto, (ii) any stock
transfer or registration fees in effect for the registration of transfers of
Shares or other Deposited Securities upon any applicable register and (iii)
any
applicable charges as provided in paragraph (8) of this Receipt; (b) the
production of proof satisfactory to it of the identity and genuineness of any
signature and of such other information (including without limitation
information as to citizenship, residence, exchange control approval, or legal
or
beneficial ownership of any securities) as it may deem necessary or proper
or as
the Company may require; and (c) compliance with such regulations, if any,
as
the Depositary and the Company may establish consistent with the Deposit
Agreement. The delivery of Receipts against deposits of Shares may be suspended,
deposits of Shares may be refused, or the registration of transfer of Receipts,
their split-up or combination or the withdrawal of Deposited Securities may
be
suspended, generally or in particular instances, when the Receipt register
or
any register for Shares or other Deposited Securities is closed or when any
such
action is deemed necessary or advisable by the Depositary or the Company.
Notwithstanding the foregoing or any other provision of the Deposit Agreement
or
this Receipt, the Depositary may restrict the withdrawal of Deposited Securities
only for the reasons set forth in Instruction IA(l) to Form F-6 under the
Securities Act of 1933. Neither the Depositary nor the Custodian will lend
Deposited Securities. The Depositary may issue Receipts against rights to
receive Shares from the Company, or any registrar, transfer agent, clearing
agency or other entity recording Share ownership or transactions. The Depositary
will not issue Receipts against other rights to receive Shares unless (i) such
Receipts are fully collateralized (marked to market daily) with cash or U.S.
government securities until such Shares are deposited, (ii) the applicant for
such Receipts represents in writing that it was the beneficial owner of such
Shares before the issuance of Receipts, and has assigned all beneficial right,
title and interest in such Shares to the Depositary for the benefit of the
Holders and will hold them for the account of the Depositary until delivery
upon
the Depositary's request and (iii) all such Receipts represent not more than
20%
of the Shares actually deposited. Such collateral, but not the earnings thereon,
will be held for the benefit of the Holders. The Depositary may retain for
its
own account any compensation for the issuance of Receipts against such other
rights to receive Shares, including without limitation earnings on the
collateral securing such rights. The Depositary will not knowingly accept for
deposit under the Deposit Agreement any Shares required to be registered under
the Securities Act of 1933 and not so registered; the Depositary may refuse
to
accept for such deposit any Shares identified by the Company in order to
facilitate the Company's compliance with securities laws of the United States
and Canada.
A-3
(5)
Liability
of Holder for Taxes.
If any
tax or other governmental charge
shall become payable by or on behalf of the Custodian or the Depositary with
respect to this Receipt or any Deposited Securities represented by the American
Depositary Shares evidenced by this Receipt, such tax or other governmental
charge shall be payable by the Holder hereof, who shall pay the amount thereof
to the Depositary. The Depositary may refuse to effect any registration of
transfer of this Receipt or any split-up or combination hereof or any withdrawal
of such Deposited Securities until such payment is made, and may withhold or
deduct from any distributions on such Deposited Securities, or may sell for
the
account of the Holder hereof any part or all of such Deposited Securities (after
attempting by reasonable means to notify the Holder hereof prior to such sale),
and may apply such cash or the proceeds of any such sale in payment of such
tax
or other governmental charge, the Holder hereof remaining liable for any
deficiency.
(6)
Warranties
by Depositor.
Every
person depositing Shares under the Deposit Agreement shall be deemed thereby
to
represent and warrant that such Shares and each certificate therefor are validly
issued and outstanding, fully paid, nonassessable and free of preemptive rights,
and that the person making such deposit is duly authorized so to do and that
such Shares (A) are not "restricted securities" as such term is defined in
Rule
144 under the Securities Act of 1933 unless at the time of deposit they may
be
freely transferred in accordance with Rule 144(k) and may otherwise be offered
and sold freely in the United States or (B) or are offered or sold in
transactions registered under the Securities Act of 1933. Such representations
and warranties shall survive the deposit of Shares and issuance of
Receipts.
(7)
Disclosure
of Interests.
To the
extent that provisions of or governing any Deposited Securities may require
the
disclosure of beneficial or other ownership of Deposited Securities, other
Shares and other securities to the Company and may provide for blocking transfer
and voting or other rights to enforce such disclosure or limit such ownership,
the Depositary has agreed to use its reasonable efforts to comply with Company
instructions as to Receipts in respect of any such enforcement or limitation
and
Holders and all persons taking and holding Receipts thereby agree to comply
with
all such disclosure requirements and ownership limitations and to cooperate
with
the Depositary in the Depositary's compliance with such Company
instructions.
A-4
(8)
Charges
of Depositary.
For the
benefit of the Depositary and/or the Company, the Depositary may collect from
(i) each person to whom American Depositary Shares are issued, including,
without limitation, issuances against deposits of Shares, issuances under
Section 4.02, 4.03 and/or 4.04 of the Deposit Agreement, issuances pursuant
to a
stock dividend or stock split declared by the Company, or issuances pursuant
to
a merger, exchange of securities or any other transaction or event affecting
the
American Depositary Shares or the Deposited Securities, and (ii) each person
surrendering American Depositary Shares for withdrawal of Deposited Securities
or whose American Depositary Shares are cancelled or reduced for any other
reason, U.S. $5.00 for each 100 American Depositary Shares (or portion thereof)
issued, delivered, reduced, cancelled or surrendered (as the case may be).
The
Depositary may sell (by public or private sale) sufficient securities and
property received in respect of Share Distributions, Rights and Other
Distributions prior to such deposit to pay such charge.
The following additional charges shall be incurred by the Holders, by any party
depositing or withdrawing Shares or by any party surrendering American
Depositary Shares, to whom American Depositary Shares are issued (including,
without limitation, issuance pursuant to a stock dividend or stock split
declared by the Company or an exchange of stock regarding the American
Depositary Shares or the Deposited Securities or a distribution of American
Depositary Shares under Section 4.02, 4.03 or 4.04 of the Deposit Agreement),
whichever is applicable (i) a fee of $.02 or less per American Depositary Share
(or portion thereof) for any Cash distribution made pursuant to the Deposit
Agreement, (ii) to the extent not prohibited by the rules of the primary stock
exchange upon which the American Depositary Shares are listed, a fee of $1.50
per Receipt or Receipts for transfers made hereunder, (iii) a fee for the
distribution or sale of securities pursuant to the Deposit Agreement, such
fee
being in an amount equal to the fee for the execution and delivery of American
Depositary Shares referred to above which would have been charged as a result
of
the deposit of such securities (for purposes hereof treating all such securities
as if they were Shares) but which securities or the net cash proceeds from
the
sale thereof are instead distributed by the Depositary to Holders entitled
thereto, (iv)
a
fee of up to US$0.02 per American Depositary Share (or portion thereof) per
year
for the services performed by the Depositary in administering the Receipts
(which fee shall be assessed against Holders as of the record date or dates
set
by the Depositary not more than once each calendar year and shall be payable
at
the sole discretion of the Depositary by billing such Holders or by deducting
such charge from one or more cash dividends or other cash distributions), and
(v) such fees and expenses as are incurred by the Depositary (including without
limitation expenses incurred on behalf of Holders in connection with compliance
with foreign exchange control regulations or any law or regulation relating
to
foreign investment) in delivery of Deposited Securities or otherwise in
connection with the Depositary's or its Custodian's compliance with applicable
law, rule or regulation. The Company will pay all other charges and expenses
of
the Depositary and any agent of the Depositary (except the Custodian) pursuant
to agreements from time to time between the Company and the Depositary, except
(i) stock transfer or other taxes and other governmental charges (which are
payable by Holders or persons depositing Shares), (ii) cable, telex and
facsimile transmission and delivery charges incurred at the request of persons
depositing, or Holders delivering Shares, Receipts or Deposited Securities
(which are payable by such persons or Holders), (iii) transfer or registration
fees for the registration or transfer of Deposited Securities on any applicable
register in connection with the deposit or withdrawal of Deposited Securities
(which are payable by persons depositing Shares or Holders withdrawing Deposited
Securities; there are no such fees in respect of the Shares as of the date
of
the Deposit Agreement), (iv) expenses of the Depositary in connection with
the
conversion of foreign currency into U.S. dollars (which are paid out of such
foreign currency), and (v) any other charge payable by any of the Depositary,
any of the Depositary’s agents, including, without limitation, the custodian, or
the agents of the Depositary’s agents in connection with the servicing of the
Shares or other Deposited Securities (which charge shall be assessed against
Holders as of the record date or dates set by the Depositary and shall be
payable at the sole discretion of the Depositary by billing such Holders or
by
deducting such charge from one or more cash dividends or other cash
distributions). Such charges may at any time and from time to time be changed
by
agreement between the Company and the Depositary.
A-5
(9)
Title
to Receipts.
Title
to this Receipt (and to the Deposited Securities represented by the American
Depositary Shares evidenced hereby), when properly endorsed or accompanied
by
proper instruments of transfer, is transferable by delivery with the same effect
as in the case of a negotiable instrument; provided
that the
Company and the Depositary, notwithstanding any notice to the contrary, may
treat the person in whose name this Receipt is registered on the register
maintained by the Depositary as the absolute owner hereof for the purpose of
determining the person entitled to any distribution or notice and for all other
purposes.
(10)
Validity
of Receipt.
This
Receipt shall not be entitled to any benefits under the Deposit Agreement or
be
valid or obligatory for any purpose unless executed by the Depositary by the
manual signature of a duly authorized officer of the Depositary or, if a Receipt
registrar for the Receipts shall have been appointed, by the manual signature
of
a duly authorized officer of such registrar or any co-registrar.
(11)
Available
Information.
The
Company furnishes the Securities and Exchange Commission with certain public
reports and documents required by foreign law or otherwise under the Securities
Exchange Act of 1934. Such reports and documents may be inspected and copied
at
the public reference facilities maintained by the Commission and located at
the
date of the Deposit Agreement at 000 X Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000.
Such reports and documents, and all reports and communications referred to
in
paragraph (16), shall be in English to the extent required under the Securities
Exchange Act of 1934, or to the extent any such notice, report or communication
has been translated by the Depositary.
|
Dated:
|
JPMORGAN
CHASE BANK, N.A., as Depositary
|
|
By:__________________________
|
|
|
Authorized
officer
|
As
of the
date of the Deposit Agreement, the address of the Depositary's Office is 0
Xxx
Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
A-6
[FORM
OF
REVERSE OF RECEIPT]
SUMMARY
OF CERTAIN ADDITIONAL PROVISIONS
OF
THE
DEPOSIT AGREEMENT
(12)
Distributions
Upon Deposited Securities.
Whenever the Depositary or the Custodian shall receive any cash dividend or
other cash distribution upon any Deposited Securities, the Depositary shall,
subject to the Deposit Agreement, on the payment date established by the
Depositary, distribute the amount thus received, by checks drawn on a bank
in
The United States, to the Holders on the record date set by the Depositary
therefor of Receipts evidencing American Depositary Shares representing such
Deposited Securities, in proportion to the number of American Depositary Shares
representing such Deposited Securities held by each of them respectively;
provided
that the
Depositary shall make appropriate adjustments in the amounts so distributed
in
respect of (a) any of the Deposited Securities being not entitled, by reason
of
its date of issuance or otherwise, to receive all or any portion of such
distribution or (b) any amounts (i) required to be withheld by the Company,
the
Custodian or the Depositary, including amounts on account of taxes or (ii)
charged by the Depositary in connection with the conversion of foreign currency
into U.S. dollars. Cash distributions and cash proceeds from sales of non-cash
distributions in foreign currency will be converted by sale or such other manner
as the Depositary may determine into U.S. dollars (net of the Depositary's
charges and expenses in effecting such conversion) before distribution to
Holders. If in the judgment of the Depositary amounts received in foreign
currency may not be converted on a reasonable basis into U.S. dollars
transferable to the United States, or may not be so convertible for all of
the
Holders entitled thereto, the Depositary may in its discretion make such
conversion and distribution in U.S. dollars to the extent reasonable and
permissible to the Holders entitled thereto and may distribute the balance
in
foreign currency to the Holders entitled thereto or hold such balance or all
such foreign currency for the Holders entitled thereto (without liability for
interest thereon). If any distribution upon any Deposited Securities consists
of
a dividend in, or free distribution of, Shares, the Depositary may or shall
if
the Company shall so request, subject to the Deposit Agreement, on the payment
date established by the Depositary, distribute to the Holders on a record date
set by the Depositary therefor of Receipts evidencing American Depositary Shares
representing such Deposited Securities, in proportion to the number of American
Depositary Shares representing such Deposited Securities held by each of them
respectively, additional Receipts for an aggregate number of Depositary Shares
representing the number of Shares received as such dividend or free
distribution. In lieu of delivering Receipts for fractional American Depositary
Shares in the case of any such distribution, the Depositary shall sell the
number of Shares represented by the aggregate of such fractions and distribute
the net proceeds to the Holders entitled thereto as in the case of a
distribution received in cash. If additional Receipts are not so distributed,
each American Depositary Share shall thenceforth also represent its
proportionate interest in the additional Shares so distributed upon such
Deposited Securities. If the Company shall offer or cause to be offered to
the
Holders of any Deposited Securities any rights to subscribe for additional
Shares or any rights of any nature, the Depositary, after consultation with
the
Company to the extent practicable, shall have discretion as to whether and
how
such rights are to be made available to the Holders; provided
that the
Depositary
shall, if requested by the Company, if at the time of the offering of any such
rights the Depositary determines that it is lawful and feasible to do so,
distribute rights to Holders by means of warrants or otherwise, or sell such
rights at public or private sale, at such place or places and upon such terms
as
the Depositary may deem proper, and allocate the proceeds of such sales for
account of the Holders otherwise entitled thereto upon an averaged or other
practicable basis without regard to any distinctions among such Holders because
of exchange restrictions, or the date of delivery of any Receipt or Receipts,
or
otherwise, and distribute the net proceeds so allocated to the Holders entitled
thereto as in the case of a distribution received in cash. The Depositary will,
on the payment date established by the Depositary, distribute to Holders on
the
record date set by it therefor any distribution on Deposited Securities other
than cash, Shares or rights in any manner that the Depositary deems equitable
and practicable; provided
if in
the opinion of the Depositary any distribution other than cash, Shares or rights
upon any Deposited Securities cannot be made proportionately among the Holders
entitled thereto, or if for any other reason the Depositary deems such
distribution not to be feasible, the Depositary may adopt such method as it
may
deem equitable and Practicable for the purpose of effecting such distribution,
including the sale (at public or private sale) of the securities or property
thus received, or any part thereof, and the net proceeds of any such sale will
be distributed by the Depositary to the Holders entitled thereto as in the
case
of a distribution received in cash. The Depositary need not distribute
securities, Receipts or rights unless the Company furnishes certain evidence
or
opinions in respect of United States securities laws (which the Company has
no
obligation to do).
A-7
(13)
Record
Dates.
The
Depositary may, after consultation with the Company if practicable, fix a record
date (which, to the extent applicable, shall be as near as practicable to any
corresponding record date set by the Company) for the determination of the
Holders who shall be responsible for the fee assessed by the Depositary for
administration of the ADR program and for any expenses provided for herein
as
well as for the determination of the Holders who shall be entitled to receive
any distribution on or in respect of Deposited Securities, to give instructions
for the exercise of any voting rights, to receive any notice or to act in
respect of other matters and only such Holders shall be so entitled or
obligated. Subject to this Deposit Agreement, only such Holders at the close
of
business on such record date shall be entitled to receive any such distribution
or proceeds, to give such voting instructions, to receive such notice or
solicitation, to act in respect of any such other matter or be so
obligated.
(14)
Voting
of Deposited Securities.
Under
the Company's by-laws, Holders of Deposited Securities are entitled to vote
only
in limited circumstances. They may elect two of the Company's directors, and
corresponding alternate directors. In addition, the following matters require
the vote of holders of a majority of all the capital stock, including the
Deposited Securities, as well as of holders of a majority of the Company's
Series AA Shares, without par value, and Series A Shares, without par value,
voting together: (i) the extension of the Company’s term of duration; (ii)
transformation of the Company from one type of company to another; (iii) any
merger in which the Company is not the surviving entity or any merger with
an
entity whose principal corporate purposes are different from those of the
Company; (iv) removal of the Company's shares from listing on the Mexican Stock
Exchange or any foreign stock exchange;
and (v) actions that would prejudice the rights of the holders of the Deposited
Securities. Except as described above and for a class vote required in respect
of the matters specified in clause (v) in certain circumstances under Mexican
law, Holders of Deposited Securities have no voting rights. Holders of Deposited
Securities are not entitled to attend or to address meetings of shareholders
at
which they are not entitled to vote. As soon as practicable after receipt of
an
English language version of a notice of any meeting or solicitation of consents
or proxies of holders of Shares or other Deposited. Securities, the Depositary
shall (to the extent permitted by law) mail to Holders a notice containing
(a)
such information as is contained in such notice (or if requested by the Company,
a summary of such information provided by the Company), (b) a statement that
each Holder at the close of business on a specified record date will be
entitled, subject to the provisions of or governing Deposited Securities, to
instruct the Depositary as to the exercise of the voting rights, if any,
pertaining to the Deposited Securities represented by the American Depositary
Shares evidenced by such Holders' Receipts and (c) a statement as to the manner
in which such instructions may be given, including an express indication that
instructions may be given (or be deemed given in accordance with the last
sentence of this paragraph if no instruction is received) to the Depositary
to
give a discretionary proxy to a person designated by the Company. Upon the
written request of a Holder on such record date, received on or before the
date
established by the Depositary for such purpose, the Depositary shall endeavor
insofar as practicable and permitted under the provisions of or governing
Deposited Securities to vote or cause to be voted (or to grant a discretionary
proxy to a person designated by the Company to vote) the Deposited Securities
represented by the American Depositary Shares evidenced by such Holder's
Receipts in accordance with any instructions set forth in such request. The
Depositary will not itself exercise any voting discretion over any Deposited
Securities. If no instructions are received by the Depositary from any Holder
with respect to any of the Deposited Securities represented by the American
Depositary Shares evidenced by such Holders' Receipts on or before the date
established by the Depositary for such purpose, the Depositary will deem such
Holder to have instructed the Depositary to give a discretionary proxy to a
person designated by the Company with respect to such Deposited Securities
and
the Depositary will give a discretionary proxy to a person designated by the
Company to vote such Deposited Securities, provided
that no
such instruction shall be deemed given and no such discretionary proxy shall
be
given with respect to any matter as to which the Company informs the Depositary
(and the Company agrees to provide such information promptly in writing) that
(x) the Company does not wish such proxy given, (y) substantial opposition
exists or (z) materially and adversely affects the rights of holders of Shares.
There is no guarantee that Holders generally or any Holder in particular will
receive the notice described above with sufficient time to enable such Holder
to
return any voting instructions to the Depositary in a timely
manner.
A-8
(15)
Changes
Affecting Deposited Securities.
Subject
to other provisions hereof,, the Depositary may, in its discretion, amend the
terms of the American Depositary Shares or distribute additional or amended
American Depositary Shares (with or without calling any American Depositary
Shares for exchange) or cash, securities or property on the record date set
by
the Depositary therefor to reflect any change in par value, split-up,
consolidation, cancellation or other reclassification of Deposited Securities,
any issuance under Section 4.02, Section
4.03 or Section 4.04 of the Deposit Agreement not distributed to Holders or
any
cash, securities or property available to the Depositary in respect of Deposited
Securities from (and the Depositary is hereby authorized to surrender any
Deposited Securities to any person and, irrespective of whether such Deposited
Securities are surrendered or otherwise cancelled by operation of law, rule,
regulation or otherwise, to sell by public or private sale any property received
in connection with) any recapitalization, reorganization, merger, consolidation,
liquidation, receivership, bankruptcy or sale of all or substantially all the
assets of the Company, and to the extent the Depositary does not so amend the
Receipts or make a distribution to Holders to reflect any of the foregoing,
or
the net proceeds thereof, whatever cash, securities or property results from
any
of the foregoing shall constitute Deposited Securities and each American
Depositary Share shall automatically represent its pro rata interest in the
Deposited Securities as then constituted. Notwithstanding anything to the
contrary contained in this provision, amendments to the Deposit Agreement must
comply with paragraph (20) hereof.
A-9
(16)
Reports;
Inspection of Register.
The
Depositary will make available for inspection by Holders at the Depositary's
office and at any other designated transfer offices any reports and
communications received from the Company which are both (a) received by the
Depositary, the Custodian or the nominee of either as the Holder of the
Deposited Securities and (b) made generally available to the Holders of
Deposited Securities by the Company. The Depositary will also mail or make
available to Holders copies of such reports when furnished by the Company as
provided in the Deposit Agreement. The Depositary will keep, at its transfer
office in, the Borough of Manhattan, The City of New York, a register for the
registration of Receipts and their transfer that at all reasonable times will
be
open for inspection by the Holders and the Company; provided
that
such inspection shall not be for the purpose of communicating with Holders
in
the interest of a business or object other than the business of the Company
or a
matter related to the Deposit Agreement or the Receipts.
(17)
Withholding.
In
connection with any distribution to Holders, the Company will remit to the
appropriate governmental authority or agency all amounts (if any) required
to be
withheld by the Company and owing to such authority or agency by the Company;
and the Depositary and the Custodian will remit to the appropriate governmental
authority or agency all amounts (if any) required to be withheld by the Company
and owing to such authority or agency by the Depositary or the Custodian. If
the
Depositary determines that any distribution in property other than cash
(including Shares or rights) on Deposited Securities is subject to any tax
that
the Depositary or the Custodian is obligated to withhold, the Depositary may
dispose of all or a portion of such property in such amounts and in such manner
as the Depositary deems necessary and practicable to pay such taxes, by public
or private sale, and the Depositary shall distribute the net proceeds of any
such sale or the balance of any such property after deduction of such taxes
to
the Holders entitled thereto. Each Holder of a Receipt or an interest therein
agrees to indemnify the Depositary, the Company, the Custodian and any of their
respective directors, employees, agents and affiliates against, and hold each
of
them harmless from, any claims by any governmental authority with respect to
taxes, additions to tax, penalties or interest arising out of any refund of
taxes, reduced rate of withholding at source or other tax benefit
obtained.
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(18)
Liability
of the Company and the Depositary.
Neither
the Depositary, its agents nor the Company shall incur any liability if, by
reason of any present or future law, rule, or regulation of the United States,
the United Mexican States or any other jurisdiction or of any governmental
or
regulatory authority or any securities exchange or market or automated quotation
system, the provisions of or governing any Deposited Securities, any present
or
future provision of the Company's charter, any act of God, war, terrorism or
other circumstances beyond its control, the Depositary, its agents or the
Company shall be prevented or forbidden from, or subjected to any civil or
criminal penalty on account of, or delayed in, doing or performing any act
or
thing which by the terms of this Deposit Agreement it is provided shall be
done
or performed; nor shall the Depositary, its agents or the Company incur any
liability to any Holder or other person by reason of any nonperformance or
delay, caused as aforesaid, in performance of any act or thing that by the
terms
of the Deposit Agreement it is provided shall or may be done or performed,
or by
reason of any exercise of, or failure to exercise, any discretion provided
for
in the Deposit Agreement.
Each
of
the Company, the Depositary and its agents assumes no obligation and shall
be
subject to no liability under the Deposit Agreement or this Receipt to Holders
or other persons, except to perform such obligations as are specifically set
forth and undertaken by it to perform in the Deposit Agreement without gross
negligence or bad faith. Without limitation of the preceding sentence, none
of
the Depositary or its agents shall be under any obligation to appear in,
prosecute or defend any action, suit or other proceeding in respect of any
Deposited Securities or the Receipts. Without limitation of the preceding
sentences, the Company shall not be under any obligation to appear in, prosecute
or defend any action, suit or other proceeding in respect of any Deposited
Securities or the Receipts that in its opinion may involve it in expense or
liability, unless indemnity satisfactory to it in its sole discretion against
all expense and liability be furnished as often as may be required. Neither
the
Depositary, nor its agents nor the Company shall be liable for any action or
inaction by it in reliance upon the advice of or information from legal counsel,
accountants, any person presenting Shares for deposit, any Holder, or any other
person believed by it to be competent to give such advice or information. The
Depositary, its agents and the Company may rely and shall be protected in acting
upon any written notice, request, direction or other document believed by them
to be genuine and to have been signed or presented by the proper party or
parties. The Depositary and its agents will not be responsible for any failure
to carry out any instructions to vote any of the Deposited Securities, for
the
manner in which any such vote is cast or for the effect of any such vote.
Notwithstanding anything to the contrary set forth in the Deposit Agreement
or a
Receipt, the Depositary and its agents may fully respond to any and all demands
or requests for information maintained by or on its behalf in connection with
the Deposit Agreement, any Holder or Holders, any Receipt or Receipts or
otherwise related hereto to the extent such information is requested or required
by or pursuant to any lawful authority, including without limitation laws,
rules, regulations, administrative or judicial process, banking, securities
or
other regulators. The Company has agreed to indemnify the Depositary and its
agents under certain circumstances and the Depositary has agreed to indemnify
the Company under certain circumstances. Neither the Company nor the Depositary
nor any of their respective agents shall be
liable
to Holders or beneficial owners of interests American Depositary Shares for
any
indirect, special, punitive or consequential damages. The Depositary and its
agents may own and deal in any class of securities of the Company and its
affiliates and in Receipts.
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(19)
Resignation
and Removal of Depositary; the Custodian.
The
Depositary may at any time resign as Depositary under the Deposit Agreement
by
written notice of its election so to do delivered to the Company or be removed
by the Company by written notice of such removal delivered to the Depositary,
such resignation or removal to take effect upon the appointment of and
acceptance by a successor depositary as provided in the Deposit Agreement.
The
Depositary will, upon written request of the Company, appoint or replace any
Custodian unless the Depositary reasonably believes that the proposed Custodian
is not, or will not be, able to provide service satisfactory to the Depositary,
in which case the Depositary and the Company will use their reasonable best
efforts to resolve any service issue. In addition, the Depositary may appoint
any Custodian upon written approval of the Company (which shall not be
unreasonably withheld). The term "Custodian"
refers
to each Custodian or all Custodians as the context requires.
(20)
Amendment
of Deposit Agreement and Receipts.
The
Receipts and the Deposit Agreement may be amended by agreement between the
Company and the Depositary. Any amendment that shall impose or increase any
fees
or charges (other than the fees and charges listed in clauses (i) through (v)
of
the penultimate sentence of paragraph (8)) or that shall otherwise prejudice
any
substantial existing right of Holders, shall not, however, become effective
as
to outstanding Receipts until the expiration of 30 days after notice of such
amendment shall have been given to the Holders. Every Holder at the expiration
of such 30 days shall be deemed by holding such Receipt to consent and agree
to
such amendment and to be bound by the Deposit Agreement or the Receipt as
amended thereby. In no event shall any amendment impair the right of the Holder
hereof to surrender this Receipt and receive therefor the Deposited Securities
represented hereby, except in order to comply with mandatory provisions of
applicable law. Any amendments or supplements which (i) are reasonably necessary
(as agreed by the Company and the Depositary) in order for (a) the American
Depositary Shares to be registered on Form F-6 under the Securities Act of
1933
or (b) the American Depositary Shares or Shares to be traded solely in
electronic book-entry form and (ii) do not in either such case impose or
increase any fees or charges to be borne by Holders, shall be deemed not to
prejudice any substantial rights of Holders. Notwithstanding the foregoing,
if
any governmental body or regulatory body should adopt new laws, rules or
regulations which would require amendment or supplement of the Deposit Agreement
or the form of Receipt to ensure compliance therewith, the Company and the
Depositary may amend or supplement the Deposit Agreement and the Receipt at
any
time in accordance with such changed laws, rules or regulations. Such amendment
or supplement to the Deposit Agreement in such circumstances may become
effective before a notice of such amendment or supplement is given to Holders
or
within any other period of time as required for compliance.
(21)
Termination
of Deposit Agreement.
The
Depositary will at any time at the direction of the Company terminate the
Deposit Agreement by mailing notice of such termination
to the Holders at least 30 days prior to the date fixed in such notice for
such
termination. The Depositary may terminate the Deposit Agreement, upon the notice
set forth in the preceding sentence, at any time after 90 days after the
Depositary shall have resigned, provided
that no
successor depositary shall within such 90 days have been appointed and accepted
its appointment within such 90 days. After the date so fixed for termination,
the Depositary will perform no further acts under the Deposit Agreement, except
to advise Holders of such termination, receive and hold distributions on
Deposited Securities (or sell property or rights or convert Deposited Securities
into cash) and deliver Deposited Securities being withdrawn. As soon as
practicable after the expiration of six months from the date so fixed for
termination, the Depositary shall sell the Deposited Securities and shall
thereafter (as long as it may lawfully do so) hold in a segregated account
the
net proceeds of any such sale, together with any other cash then held by it
under the Deposit Agreement, without liability for interest, in trust for the
pro
rata
benefit
of the Holders of Receipts not theretofore surrendered.
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(22)
Appointment.
Each
Holder and each person holding an interest in American Depositary Shares, upon
acceptance of any American Depositary Shares (or any interest therein) issued
in
accordance with the terms and conditions of the Deposit Agreement shall be
deemed for all purposes to (a) be a party to and bound by the terms of the
Deposit Agreement and the applicable Receipt(s), and (b) appoint the Depositary
its attorney-in-fact, with full power to delegate, to act on its behalf and
to
take any and all actions contemplated in the Deposit Agreement and the
applicable Receipt(s), to adopt any and all procedures necessary to comply
with
applicable law and to take such action as the Depositary in its sole discretion
may deem necessary or appropriate to carry out the purposes of the Deposit
Agreement and the applicable Receipt(s), the taking of such actions to be the
conclusive determinant of the necessity and appropriateness
thereof.
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